Posted: February 11th, 2015
By: Katie Ott* | Staff Writer
Imagine: the Disney princesses, childhood heroes for many young American girls, featured topless with skin and scars for all viewers to see. Viewers of the art have described the images as “disgusting,” “terrifying,” and “propaganda.” But these critics miss the essential point: the princesses’ scars support breast cancer survivors with similar scars from the mastectomy procedure used to treat the deadly disease. The artist, AleXsandro Palombo, explains the paintings honor a woman’s pain connected to “the acceptance of [a woman’s] body mutilated by a mastectomy [which] is one of the devastating moments that is part of the disease.”
Yet, parents worried their children will suffer nightmares after seeing the images, is not the only hurdle Palombo must overcome to produce his art. There exists the question of violated copyright laws. How can Palombo legally alter Disney’s iconic images in such a drastic, and for some, offensive, way?
The legal precedent for Palmobo and other artists interested in using famous images to promote their own messages lies in a famous case with artist Thomas Forsythe’s “Food Chain Barbie” series. Forsythe’s art featured Mattel’s Barbie cowering from attacking kitchen appliances. He explained the images were designed to “critique the objectification of women associated with [Barbie], and to lambast the conventional beauty myth and the societal acceptance of women as objects because this is what Barbie embodies.” Yet, Mattel was furious that the art took its doll out of context and provided Forsythe with commentary outlet. Mattel sued for both copyright and trademark infringement. Yet, the court refused to hear the claim; the complaint was thrown out under the First Amendment, fair use, and transformative use reasoning.
Fair use, according to the United States Patent and Trademark Office, provides limited circumstances when it may be legal to reproduce Disney characters without Disney’s permission. But these circumstances are limited. In order to qualify for fair use, the artwork must comply with the transformative use doctrine, which requires that the newly created image no longer represent the original image. Pursuant to the doctrine, the new artwork should be transformative enough to change the original imagine, becoming a derivative work. Typically, if a painting serves as a commentary, the artist has made enough alterations to the work that the transformative use doctrine applies. When a painter successfully implements the transformative use doctrine, the artist does not need express permission to recreate the image.
When deciding whether an image has succeeded in transformative use, courts consider (1) whether the material has been transformed by adding new expression or meaning, and (2) was new value added to the original by creating new information, new aesthetics, new insights, and understandings? For Palombo’s paintings, his material has certainly developed new expression. The entire meanings of the paintings have changed. The princesses now represent survivors, where before they represented childhood fairytales. The second consideration, new value and new aesthetics, unmistakably manifests in the new scar feature. This detail alters the entire image of the Disney princesses.
So while Disney and parents may be annoyed with the “disgusting” alterations to their favorite childhood heroes, it is unlikely their claims will amount beyond the “Food Chain Barbie” case. Instead, artists like AleXsandro Palombo may continue adding their own messages to famous images and avoiding copyright claims.
* Katie is a second year law student at Wake Forest School. Before attending law school, she studied English Literature at Clemson University. She is from Fort Mill, South Carolina and enjoys riding horses, reading, and skiing in her free time.