The Mudcat Café TM
Thread #65456   Message #1085569
Posted By: Amos
03-Jan-04 - 08:48 PM
Thread Name: Song Challenge: Barbie Lobster Tale
Subject: RE: SONG CHALLENGE: Barbie Lobster Tale
A judge with a sense of humor wrote his findings on a lawsuit by Mattel against a rockband and their publishers (MCA) who wrote and published a song called Barbie Girl.

The following excerpt is a classic of judicious language:


"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. [It n]either
diminishes the severity of the crime, nor does it make it
legal." He later characterized the song as a "theft" of "another
company's property."

MCA filed a counterclaim for defamation based on the
Mattel representative's use of the words "bank robber,"
"heist," "crime" and "theft." 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 eyepatches and peg legs who board galleons
to plunder cargo. In context, all these terms are nonactionable
"rhetorical hyperbole," Gilbrook v. City of Westminster, 177
F.3d 839, 863 (9th Cir. 1999).

The parties are advised to chill.