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in support of free expression
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Resources
Food Chain Barbie &
the Fight for Free Speech
Posted August 10, 2004
Free at last, or at least not saddled with over $2 million in battle costs. That's how much legal tender it took before the Ninth Circuit Court of Appeals wrote a scathing opinion that called Mattel's case against me potentially 'unreasonable and frivolous.' From the time Mattel sued me on August 24, 1999 up until that December 29, 2003 decision, the case always seemed unreasonable, while the difficulty was finding a way to prove that in court without going bankrupt. Not that Mattel, who uses attorneys who send mock hand grenades to potential clients with the tag line "we'll go to war for you", would actually use that as a legal strategy.....
Well, it backfired in my precedent setting case that should give major corporations pause before they resort to lawsuits to silence their artistic critics. On June 24, 2004, the District Court echoed the Ninth Circuit in ordering Mattel to pay all legal fees and expenses. That award of $1.8 million is on top of an award of $300,000 for the cost at appeal, so Mattel is looking at writing a check for $2.1 million. Mattel's embarrassment might just send a wake up call to censorious corporate boards everywhere. At the very least, it will make it easier for artists who do get sued to find attorneys because they're more likely to get paid at the end of the day.
It all started when a Sheriff knocked on my door and announced "You've been served". Those words carry a whole different meaning than when you hear them at your favorite restaurant. On August 24, 1999 I was served with a 30 some page complaint from Mattel for copyright and trademark infringement. That was the beginning of a new menu for my ?Food Chain Barbie' photography project.
In the face of this Federal lawsuit, I knew I had to fight back. My work is obviously 'fair use'—political and social criticism presented with humor and parody. I wasn't going to let a corporation known for selling an impossible beauty myth to so many generations of children get away with censoring my work. I spent the next five months in a desperate search for legal representation. I discovered that arts organizations were woefully ill equipped for the task. Various 'lawyers for the arts' groups are designed for simple matters—how to write a licensing agreement—but not for the daunting task of serious litigation.
A long list of attorneys suggested that I just give up, since I hadn't made any money anyway. They were so locked into economics that they never even considered the principle. To my mind, this was an essential fight. Free speech is paramount to our free society. At the most I was risking bankruptcy, hardly a grave risk compared to the risk of life and limb taken by freedom fighters before me in this country and still today re overtly oppressive countries around the world.
I eventually persuaded the ACLU of Southern California to take up my case. They recognized that in this increasingly brand conscious world, it's the corporations that exercise the real censorship power over free speech. Corporations make their brands ubiquitous and then complain if anyone uses the brands to criticize the resulting crass consumerism. Unlike a public figure like New York Mayor Giuliani, corporations proceed quietly, below the radar of public scrutiny, merely by making a business decision to throw their intimidating wealth in the face of hapless artists. It's almost an Orwellian double bind that our culture is so sensitized to official censorship that the very real censorsthe truly invidious goes unnoticed and unchecked.
Even the ACLU only recently became sensitive to the power of private censorship. Lacking expertise in Intellectual Property law, they needed to find a private firm to do the lion's share of the legal work. That's where Howard, Rice, Nemerovsky, Canady, Falk & Rabkin come in. This San Francisco based firm has done pro bono legal work in excess of $lion in defense of my case.
From what I've learned in the course of defending my very basic free speech rights, this is a fairly standard cost of fighting a legal battle in federal court. It only confirms what I've always sensed, that the legal system is little more than a boxing ring for the rich with the common people not even invited to experience the proceedings on pay per view. We may be free to express ourselves, but if that expression involves offending a rapacious corporation, they're equally free to sue; and unless we have the wherewithal to fight off high powered attorneys, that's where our free speech ends.
With the rise of the internet and the aggressive branding of everything from shoes to food, intellectual property has become a hotly contested legal battleground. In a world dominated by brands, artists have to be able to comment on those brands to speak directly to the world around them.
I created the Food Chain Barbie series as a seriously funny stab at mindless consumerism, the impossible beauty myth and the advertising that brings it all into our lives.
Tom Forsythe's Food Chain Barbie series taps into the twin currents of jaundice and hilarity that characterize his sometimes simple and sometimes maddeningly complex view of the world. In this series, the idealized commodity—Barbie—becomes our food, our nourishment. We blend, mix and confuse the ideal fantasy with the essence of our existence. Barbie may be only one of a great number of products contributing to a false sense of inadequacy, but in many ways, this product is the most potent single representation of the ubiquitous beauty myth. As a part of our cultural identity since being introduced in 1958, Barbie reveals the continuity of the commodity machine. In the same way, the doll retains its glazed, blissful smile regardless of its impending fate. While most of us at least start to grimace when we smell the heating oil that signals our demise, Barbie keeps a happy face courtesy of the image-makers who hope beyond hope that those of us on the receiving end will continue to do the same.
What started as a seemingly simple effort to create talismans to encourage people to recognize a banal product when they see one, turned into a nightmare of quite literally federal proportions when Mattel served Forsythe with a Federal lawsuit on August 24, 1999. Mattel sued Forsythe for displaying Barbie as the piece of plastic she really is rather than as the role model that Mattel has marketed. After 2 years of emotional turmoil, the US District court in Los Angeles granted Forsythe's motion for summary judgement on August 13, 2001. Mattel is appealing the ruling and the expenses keep mounting, despite pro bono legal representation from the ACLU and Howard, Rice of San Francisco. While the lawsuit grinds through the courts, Forsythe continues to tweak the senses.
As a successor to the Food Chain Barbie series, Forsythe is making his Personal Illusions series of photographic portraits. These 20x30 inch Lambda prints result from collaborative photo sessions where Forsythe takes his subjects into his studio with props, costumes or just attitudes that they think define how the world sees them—or how they would like to be seen. He then distorts the images and photographs the distortion. It's a real world distortion, not a computer manipulation, designed to reveal the inevitable distortion everyone faces even if they try their best to honestly face the world. Personal Illusions alternately reveals a multiplicity of images, a blending of edges and some distinctively clear insights.
While still photography makes up the bulk of Forsythe's artistic milieu, he has continued to work on parallel projects that reflect his Taoist inspired philosophy of going with the flow. His Healing Vision series of relaxation videos (www.healingvision.com) is meant to act as an antidote for the frenzy of modern existence. These slowly edited scenes of nature in motion provide a meditative background that can enhance or induce the relaxing states that we all need to enjoy inner peace.
Forsythe's ability to express from his gut can be seen as one of the fruits of Tai Chi Chuan practice. Practicing this 'meditation in motion' helped him realize the difference between his true nature and the social influences that attempt to subsume that nature. It provided the confidence to trust his instincts, to accept his thoughts rather than analyzing them until they didn't have a life of their own. One of the gems of Tai Chi Chuan practice—the physical manifestation of Taoist philosophy—is recognizing that we're all products of our environment, that can't escape it, but that we can laugh at it.
Some years ago, Forsythe traded a life of literal sensory overload in Los Angeles for the relative quiet of the country outside of Kanab, Utah where he enjoys the grandeur of the red rock and open expanses that surround him. In this environment, he can open his senses fully to experience the splendor of ronment that has not been developed to death.
Forsythe's work has been juried into Illegal Art at 313 Gallery, In These Times, SFMOMA, Nexus Gallery; Through the Looking Glass at the Art Center at Fuller Lodge by Scheinbaum & Russek (reps for Eliot Porter's estate); The Barrett House Galleries Photoworks '98 by Lisa Dennison, Chief Curator and Deputy Director of the Solomon R. Guggenheim Museum in Manhattan; The Dishman Competition at Lamar University by James Yood of Northwestern University; This is the Place, MetroArts; Park City Art Festival, 1998/1999; Plaza Art Fair, 1998, and New Photography '97 at lard Sheets Gallery, Los Angeles County Fair
Contact:
www.tomforsythe.com
forsnab.net
435-644-3412
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