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Music companies the world over can now spoof any toy they want. On January 28 the U.S. Supreme Court declined to hear the case of Mattel, Inc. v. MCA Records, Inc. For the pop culture — challenged, Mattel sued MCA over a catchy song by the Danish group Aqua entitled “Barbie Girl.” Promotional material for the song used the same vivid pink hue Mattel has adopted for Barbie packaging, and the song’s lyrics mock Mattel’s iconic (some would say pneumatic) plastic creation. Mattel, among other things, accused MCA of diluting its trademark and confusing consumers. The justices’ refusal to hear the case means that the opinion by U.S. Court of Appeals for the Ninth Circuit judge Alex Kozinski stands. We at Corporate Counsel offer the following choice excerpts of that 2002 opinion as a public service, as well as a miniprimer on current intellectual property thought. From the opinion: From Streetwalker To Fab Icon Barbie was born in Germany in the 1950s as an adult collector’s item. Over the years, Mattel transformed her from a doll that resembled a “German streetwalker,” as she originally appeared, into a glamorous, long-legged blonde. Barbie has been labeled both the ideal American woman and a bimbo. She has survived attacks both psychic (from feminists critical of her fictitious figure) and physical (more than 500 professional makeovers). . . . With Barbie, Mattel created not just a toy but a cultural icon. With fame often comes unwanted attention. Aqua is a Danish band that has, as yet, only dreamed of attaining Barbie-like status. In 1997 Aqua produced the song “Barbie Girl” on the album Aquarium. In the song, one band member impersonates Barbie, singing in a high-pitched, doll-like voice; another band member, calling himself Ken, entices Barbie to “go party.” [Editor's note: The song is getting continued exposure by, inexplicably, the popular English — and very male — band Coldplay, which has taken to performing the tune live.] It’s About A Girl. No, Wait, It’s About A Song About A Girl. Got That? There is no doubt that MCA uses Mattel’s mark: “Barbie” is one-half of “Barbie Girl.” But “Barbie Girl” is the title of a song about Barbie and Ken, a reference that — at least today — can only be to Mattel’s famous couple. We expect a title to describe the underlying work, not to identify the producer, and “Barbie Girl” does just that. The “Barbie Girl” title presages a song about Barbie, or at least a girl like Barbie. The title conveys a message to consumers about what they can expect to discover in the song itself; it’s a quick glimpse of Aqua’s take on their own song. The lyrics confirm this: The female singer, who calls herself Barbie, is “a Barbie girl, in [her] plastic world.” Like, Cool It, Dudes After Mattel filed suit, Mattel and MCA employees traded barbs in the press. When an MCA spokeswoman noted that each album included a disclaimer saying that “Barbie Girl” was a “social commentary [that was] not created or approved by the makers of the doll,” a Mattel representative responded by saying, “That’s unacceptable. . . . It’s akin to a bank robber handing a note of apology to a teller during a heist. . . .” MCA filed a counterclaim for defamation based on the Mattel representative’s use of the words “bank robber,” “heist,” [etc.]. . . . But all of these are variants of the invective most often hurled at accused infringers, namely “piracy.” No one hearing this accusation understands intellectual property owners to be saying that infringers are nautical cutthroats with eye patches and peg legs who board galleons to plunder cargo . . . all these terms are nonactionable “rhetorical hyperbole.” The parties are advised to chill.

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