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Toy manufacturer Mattel Inc. is not entitled to summary judgment in a copyright infringement case against a British woman who sold sexually explicit dolls made with a Barbie doll product, a federal judge in New York judge has ruled. Susanne Pitt, who operated the now-defunct www.dungeondolls.com, had offered for sale on the Web site a “dungeon doll” made partly of Mattel’s SuperStar Barbie. SuperStar Barbie is an unadorned head sculpture based on Mattel’s famous Barbie doll. Pitt allegedly attached a body of her own making to the SuperStar Barbie head and also used it in a sexual explicit story on her Web site. Mattel filed a complaint last year seeking $10,000 in damages, attorney fees and costs totaling $1,350 and a permanent injunction prohibiting future use by Pitt of the SuperStar Barbie. Pitt, who is representing herself pro se, sent a letter to the court explaining her use of the doll, and the court allowed the letter to constitute an answer to Mattel’s complaint. After further cross-Atlantic communication with Pitt, the court permitted Mattel to file a motion seeking summary judgment in October 2001. “Construing liberally the submissions of the pro se Defendant, the Court finds that in the statements about artistic expression and parody in Defendant’s [letter] and the documentary evidence attached to it, Defendant raised the affirmative defense of fair use,” wrote Southern District Judge Laura Taylor Swain. Swain weighed Pitt’s use of the Barbie figure in light of the U.S. Supreme Court’s determination in Campbell v. Accuff-Rose Music Inc., 510 U.S. 569 (1994), that fair use will succeed if the new design is “transformative” and is not simply a “supplanting” of the original work. The judge used one of Pitt’s Dungeon Dolls that was purchased by Mattel’s counsel to make her determination. The Dungeon Doll’s dress, which Pitt described as “‘Lederhosen-style’ Bavarian bondage dress and a helmet in rubber with a PVC-mask and a waspie,” convinced Swain that the product was sufficiently different in design from a typical Barbie-related toy. “Defendant’s ‘touch-ups’ of the dolls plus the setting she creates for them transform, to put it mildly, the original doll to an extent beyond merely supplanting it,” Swain wrote. “A different analysis would apply if Defendant had, for example, dressed Barbie dolls in a different style of cheerleader outfit than those marketed by Mattel. To the Court’s knowledge, there is no Mattel line of ‘S&M’ Barbie.” Pitt’s assertion that her work involved parody strengthened her case for fair use, according to Swain. “Defendant’s customizing appears to have evoked the image of Barbie while transforming the Barbie doll sufficiently that the quality and quantity of her copying weigh against a judgment as a matter of law in favor of Plaintiff,” the decision stated. “It appears that there is slim to no likelihood that Dungeon Dolls would serve as a market substitute for Barbie dolls. The extent to which the context and character of the Dungeon Dolls transformed the unadorned Barbie head weighs against Plaintiff on the current record.” Mattel was represented by William Dunnegan and Annemarie Crosswell of Manhattan’s Perkins & Dunnegan.

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