Wednesday, January 5, 2011

Danish Rocker Sues Mattel

(CN) - Mattel ripped off the persona of the lead singer of the HorrorPops, a Danish rockabilly band, for its "Hard Rock Café Barbie Doll," right down to her tattooed bass, singer Patricia Day says. Mattel paid Cyndi Lauper, Debbie Harry and Joan Jett to use their personae in its rock and roll Barbie line, but stiffed Day, who as a feminist objects to being made into a doll and subjected to "the erotic male gaze ... a vision that runs contrary and antithetical to everything for which Mattel's Barbie line stands," she says in her federal complaint.

Day is a citizen of Denmark who lives legally in the United States on a non-immigrant visa. The HorrorPops were founded in Denmark in 1998 and have toured around the world, headlined a Warped tour, and cut albums, including "Hell Yeah!" from the cover of which, Day says, Mattel ripped her persona. She sued Mattel and others in Indianapolis Federal Court.

Day says her fans recognize her from "her black hair meticulously done in 50's pin-up fashion; her retro hairstyle juxtaposed against conspicuous and heavily applied black eye shadow and liner and deep red lipstick; her form-fitting '50s-style pencil skirts that go just past the knees; her full-color 'sleeve tattoos' on both upper arms; and, most importantly, her distinctive instrumental extension of her personality: her giant tattooed upright bass. This final element - the giant tattooed upright bass (also known as a bass fiddle or double bass) - has become a singularly distinctive hallmark of Day's public persona."

Her entire persona, including the bass, was featured on the HorrorPops' first album, "Hell Yeah!" from which Day says Mattel ripped the design of its Hard Rock Barbie.

Day says the Spring 2010 edition of Mattel's Barbie Collector magazine features four recently release rock and roll themed Barbie dolls: the Debbie Harry Doll, the Joan Jett Doll, the Cyndi Lauper Doll, and the Hard Rock Café Barbie Doll, "made in the image of noted musician Patricia Day of the HorrorPops." (This citation is in italics in the complaint, but not within quotes, so it is unclear whether the Barbie Collector catalogue uses those precise words or not.) Day says Mattel "obtained permission from, and provided compensation to" and "paid for licenses to use the likenesses of" Harry, Jett and Lauper for the dolls.

But not to Day. Day points out that Mattel has vigorously litigated any infringements or presumed infringements upon its Barbie doll, the best-selling doll in the world: "As a multibillion-dollar corporation with a long track record of vigorously protecting and enforcing its intellectual property rights to the maximum extent allowed by the law, Mattel is fully aware of the need to obtain licenses for the use of any individual's right of publicity, including their likeness, for commercial purposes - a fact evidenced, inter alia, by their acquisition of licenses for the use [of] the likenesses of Debbie Harry, Joan Jett and Cyndi Lauper for the musician-themed Barbie line."

In addition, there is a payback aspect to the suit based on a confrontational history between Mattel and Danish rock bands. In the 1990s, Mattel sued the Danish band Aqua over its 1997 hit "Barbie Girl," claiming copyright infringement. Judge Matt Byrne in the U.S. Central District of California then wrote an opinion thumping Mattel's position and its attack on what was clearly a parody.

The new litigation says, "Conspicuously, however, the so-called 'Hard Rock Café Barbie Doll' lacks any direct acknowledgment of the female musician - Patricia Day - whose likeness it appropriates.

"Indeed, Patricia Day has provided no authorization to defendants for the use of her likeness in any manner, let alone for the creation and sale of a Barbie doll." Day's killer detail is her upright bass, "adorned with unique artwork or 'tattoos' on the face of the instrument, including: (1) a blue bird in flight on the upper right; (2) a blue bird in flight on the upper left; (3) a red five-point star on the bottom left; and (4) a red heart on the bottom right." She says that the Hard Rock Barbie, "not coincidentally, holds a giant tattooed upright bass adorned with the following artwork or 'tattoos' on the face of the instrument: (1) a blue bird in flight on the upper right; (2) a blue bird in flight on the upper left; (3) a pink five-point star on the bottom left; and (4) a pink heart on the bottom right."

Day says the doll also copied sleeve tattoos, her pencil skirt, her hairdo, eye shadow design and lipstick. But unlike the other rock and roll Barbies, the Barbie based on her persona does not mention Day by name.

She adds: "It is not surprising that defendants never approached Patricia Day about the Hard Rock Barbie, since Day is a feminist musical pioneer - an intelligent, outspoken, anti-establishment female artist still dominated by the erotic 'male gaze'. ... As an artist, Day has always expressed her desire to redefine women's roles in the rock 'n roll scene - a vision that runs contrary and antithetical to everything for which Mattel's Barbie line stands. ...

"Since the release of the Hard Rock Barbie, Day has been repeatedly approached by fans who have been perplexed by the striking resemblance of the Hard Rock Barbie to Day's likeness and persona and who have expressed disappointment in their (mistaken) belief that Day would permit such a use of her likeness and persona for a purpose that is so at odds with her values and the values of her fans." (Parentheses in complaint.)

Day seeks costs and punitive damages for violation of her right of publicity and false endorsement. She also wants sales of the Hard Rock Barbie stopped, all the dolls recalled and destroyed "under court supervision," and all the profits the defendants made from them.

Also named as defendants are Wonderama Toys, Rainbow's End Collectibles, and Hard Rock Café International. Day is represented by John Tehranian.

No comments: