Friday, June 3, 2011

Fighting The Wrong Fight

This is an ad by the Bodyshop in 1998 - through the power of Facebook people are now reposting it as though it was recently "banned" in the US instead of China and reposting it as though it were somehow controversial now 12 years later.

When I read that it was banned my BS meter pinged so I looked it up with the incredible power of the internet. You know . . . . Google. I found my favorite thing in the world - a primary source.

And I'm furious that we are celebrating this ad being "banned" rather than screaming about the fact that Roddick didn't put her money where her mouth was.

What was Body Shop Really Looking for?

Anita Roddick is an amazing woman, and I for one love and actually use Body Shop products. (or at least I used to - they stopped making/distributing my favorite product Viennese Chalk Scrub)

(*Update : someone mistakenly thought Anita was the photographer who took the shot. The photographer was Steve Perry Anita was the founder and CEO for The Body Shop)

However I would like to take a minute to look at what was "banned" about Ruby. Anita was thrilled that she got a "cease and desist" letter from Mattel. She was amused that one plastic construct could "hurt the feelings of another". She assumed it was the implied insult to Barbie as opposed to the indirect attack on the trademark. Because it fit in with her agenda to do so.

Awesome - that's what provocative activist stands are supposed to do - get enough publicity to make a difference - it worked. As a matter of fact, I wouldn't be terribly surprised to find out the sudden trending of Ruby the Rubenesque articulated doll featuring the prominent branding of the Body Shop on all of the retweets and Facebook posts was actually started by the Body Shop's marketing department itself to get back some of it's liberal activist rep back from the early 90's. Before it was just another chain in the dying mall.

Yeah that's right - I am exactly that cynical. Because this ad was banned in China -Here all they got was a cease and desist letter from Mattel and parental complaints about implied nudity.

That's not being "banned", that's voluntarily giving up without a fight here in the US. Because you don't care about anything other than the publicity and you were hoping to be "banned". And that my friends, means you care more about making your point and selling your stuff than anyone's actual rights.

Because let's be honest Ruby looks way more naked than Barbie, and part of that actual sexuality and nakedness is BECAUSE Ruby looks more real.

And let's also be honest - Ruby is posed in a sexualized manner, she is selling product to make you more attractive. And perhaps in the very prudish world where "my first Barbie" is now made with plastic panties so that the Barbie can't even be naked if it wanted to, the argument parents were levying against the Body Shop windows might be that Ruby looks like a naked woman who's posing for her lover getting ready to dive into bed until you get close enough see the articulation points and realize it's an anti- Barbie.

Also this wasn't the only ad that ran in the Ruby promotion, there was also this:

I'm down with a good Odalisque as much as the next art loving gal, but this one really is just unfair to poor Barbie. Girlfriend couldn't even loosen up enough to get on a couch this way:

Which one is going to make parents walking through a mall complain? Naked chick pretending to be a Barbie - that's which one. Also the second ad is bordering on trademark infringement because it's recognizably one of the trademark Barbie TM faces, whereas the standing Ruby is obviously a doll face developed for the ad and in proportion to the doll itself .

Is it possible that it was this second ad - the one not making the Facebook Outrage Rounds that caused the cease and desist letter? Because there's no issue with the first one really, but the second one could be misappropriating a trademarked image for use in advertising someone else's product.

In other words "making Barbie look bad" might actually be "using Barbie's trademarked face to devalue the Barbie Brand specifically to sell your product" Body Shop is a for profit business - not an art house or a non-profit.

Body Image in Media is Important - But Fake Outrage At The Expense of Defending Free Speech Sucks

We'll never know because Anita Roddick didn't really want to fight the REAL fight, she wanted the controversy and she got it. The publicity kicks up every now and then and the images get redistributed. At least one article a year since 1998. The images have done some real good for real people. The woman who created the company and this campaign died in 2007. There is no point in my having a current beef with her. But she stopped before she fought a bigger fight.

Body acceptance is a lovely thing. However not fighting the cease and desist order when you specifically provoked it is a betrayal of real rights.

It is well known that Mattel's lawyers aggressively defend all of it's brands but Barbie in particular. It's also well known that Mattel loses lots of those lawsuits. The Red Ruby poster would have been able to defeat the standard cease and desist, the green one might have had some trouble in trademark law because the part of a doll that you trademark instead of patent is the face.

Going after Barbie is a cheap shot and easy, manufacturing outrage at a corporate entity is also easy - but defending the rights of others to utilize images in art and culture and not allowing trademark to expand past it's legal limit is waaay more important because while Mattel has the right to defend that trademark Mattel does not have the right to say all images of articulated dolls are equal to the Mattel Trademark. Red Ruby was defensible and could have stayed displayed. Body Shop has corporate lawyers on retainer and could have handled the suit.

Mattel didn't sue these guys:

But these guys also did this ad in the same series that caused a bit of a stir so maybe by 2007 picking on Barbie wasn't such big news but going after superheros was:

Or maybe it was just because it was a non-profit.

Mattel just lost the Bratz fight - and they had more valid legal standing there since the designer made the dolls while working for Mattel.

Mattels lawyers continually correct opposing counsel that refers to Barbie as a "person" or a "she" or as anything other than a brand. They play legal hardball but started losing whenever it's a free speech issue. (warning that last link is long and written for lawyers and no one interviews any actual Mattel lawyers until half way down the article).

This means Roddick's characterization of the cease and desist letter is her own construction/projection and had nothing to do with Mattel:

"Their reason: Ruby was making Barbie look bad, presumably by mocking the plastic twig-like bestseller (Barbie dolls sell at a rate of two per second; it's hard to see how our Ruby could have done any meaningful damage.) I was ecstatic that Mattel thought Ruby was insulting to Barbie -- the idea of one inanimate piece of molded plastic hurting another's feelings was absolutely mind-blowing. "

And all in her mind. She does not provide the text of the cease and desist.

So here's what pisses me off :

- either the red Ruby didn't look Barbie enough to get the cease and desist letters going and they made the green one with the "Barbie" face hoping to get the cease and desist because Mattel was so well known for aggressive copyright protection and that was the plan all along

-or it was done with no expectation of infringement but Roddick rode the infringement case to make people believe it was about weight and shape instead of one business suing another.

Either way Roddick was allowing all the people who cared about the image to believe that it was being "banned" for the body image alone - convincing people that they were trying to ban body types. Making those people feel oppressed by a larger force ( the government and the law) than the already considerable forces that oppress them.

Which frankly would be untrue.

If Ruby was Banned it was just a little bit by a country that bans lots of other things not the US

ban 1 (bn)
tr.v. banned, ban·ning, bans
1. To prohibit, especially by official decree: The city council banned billboards on most streets. See Synonyms at forbid.
2. South African Under the former system of apartheid, to deprive (a person suspected of illegal activity) of the right of free movement and association with others.
3. Archaic To curse.
1. An excommunication or condemnation by church officials.
2. A prohibition imposed by law or official decree: a ban on cigarette smoking on airplanes.
3. Censure, condemnation, or disapproval expressed especially by public opinion.
4. A curse; an imprecation.
5. A summons to arms in feudal times.

v1 - There was no governmental or legal ruling to remove Ruby from ad campaigns in the united states - there may have been voluntary compliance with a letter written by Mattel's legal department that had no standing in court.

v2- While an argument could be made that Ruby was subject to apartheid like systems that keep us from seeing the forms of realistic women's bodies in advertising ,judging by the fact that a quick google search shows articles referencing Ruby come up every year I hardly think her movement and communication have been limited.

v3 - I do not believe Ruby was cursed - actually she seems blessed - how many print ads have this kind of shelf life?

n1- Unless Mattel are Church officials Ruby has not been denied religous identity

n2 - the removal of Ruby was voluntary at request except for China - she was totally banned by the government in China but not by Barbie and Mattel.

n3- OK I might go with this one - enough parents didn't like it that the public opinon "ban" counts - apparently it took about three distraught parents until one came up with a ridiculous enough quote to get press and let the Body Shop cave to pressure instead of fight to keep the posters up or just move them so that they were inside the store instead of visible on the mall

n4 is covered in v3

And I'm pretty sure that neither Barbie nor Ruby is being summoned to arms to fight for the King.

I am sure that I will see the Body Shop's Red Ruby all over my internet today being played as a real time outrage and real time trend. But she was a publicity stunt and her withdrawal in the face of very small actions proves it.

She is a beautiful photo and a lovely shape and I truly believe all people of all sizes are beautiful and sexual, and perhaps make you think about body image. But Ruby is still smooth and plastic and young and sexualized. It would have been more radical to put her in the original Barbie one piece. It would have been even better to see Roddick and The Body Shop fight for their right to Ruby, instead of continuing to empower corporate rights past their actual legal boundaries.

But maybe they couldn't because their ad campaign was specifically designed to incite Mattel and parents through trademark infringement and sexualized implied nudity and blame it on sizism instead.

Making women shaped like Ruby feel like the very government wants to erase them might be good for The Body Shop, and allow women shaped like Ruby to feel like Ruby is helping them fight the Power. But there's a strong possibility that she made up the fight in the first place.

And she didn't fight for a damn thing. She just went away when the going got tough.

The Body Shop should have gone to court.

Christina Hendriks and Brooke Elliot getting real roles and being allowed to be sexually active romantic leads without being punch lines is more important to women with real bodies in the media than Ruby is - and the government is not trying to ban either of them. Hell, the government of Britain actually endorsed Hendricks as the preferred figure for the UK- that's kind of the opposite of banning isn't it?

Kudos to the Body Shops viral marketing team - I'm sure sales will go up after the Facebook exposure.


braxburger said...

Yes, Mattel probably would have lost the lawsuit, but not before dragging the case through the courts for years and costing The Body Shop and arm and a leg (and not the plastic kind, either) in legal fees. The point of most of these lawsuits isn't to win by decision, but to "win" by bankrupting the defendant.

Drinne said...

No. Cease and Desist letters are not legally binding and have no standing in court. A suit is brought separately and does not require a Cease and Desist.

Additionally you believing that poor little multinational corporation The Body Shop can't fight a cease and desist and against Mattel is exactly why I'm pissed off about the myth that they perpetrated by using a manufactured "ban".

Because if the chain store in the Mall can't fight it how can you or I?

It wouldn't cost the Body Shop a red cent they hadn't already predicted when they came up with the ad copy. And they had the money and the legal team.

Most Cease and Desists are either answered by another lawyer telling them to go shove it and why they have no legal standing ( if you have no retainer it will still cost under a grand) -- or the lawyer telling the recipient that the cease and desist letter's lawyer has a point and then the two parties resolve it by either minor changes or retractions until the legal issue is resolved.

No court - no bankruptcy - but the little guy is probably going to end up modifying their product if there is legal standing.

Of course option 3 is the recipient freaking out and just caving - that shouldn't happen but it does. What Body Shop did perpetuates Option 3.

It only goes to court when one of the two parties take it to court.

The real way you handle a cease and desist is the way ThinkGeek did here


The Body Shop has an entire platoon of lawyers of their own to handle their contracts, their very international supply chain, inventors, patents, international patents and their own brand identity, as well as their various business and regulatory requirements and the international advertising laws for beauty projects.

They didn't fight it because they wanted to look like they were the underdog and manipulate the conversation so they could sell to a percentage of the 3 billion women in the ad and reinforced the myth of the Unbeatable Legal Corporation chilling free speech and art in the process.

And BTW they did not cease or desist - you could get Ruby posters and postcards in the Body Shop well into the 2000's.

Not bad for a girl who was "banned" in 1998.

Michael said...

While finding a "primary source" might be exciting, finding an actual report from the day, from an actual journalist of actual quotes from either Mattel or The Body Shop is what makes a RELIABLE source.

(No, without corroboration, the photographer who took the photo is NOT a reliable source regarding a corporate lawsuit.)

Drinne said...

@Michael - True, but when looking at historical sources primary sources are not necessarily reliable narrators they are the persons or documents actively involved.

The thing that started me off was women posting this as their statuses on Facebook using the present tense as though the "ban" was just happening right now and it needed FaceBook slactivisim immediately.

The fact that the incident happened in 1998 as opposed to this week was what I was looking for - "banning" things is actually very difficult to do and I was wondering who was doing the banning.

China as it turns out. But the Facebook posters claimed it was Barbie Inc. or Mattel.

So Roddick is a primary source who states she was excited to get the cease and desist and was still talking about it as a win years later. Women on Facebook are busy being offended at Mattel right this second and probably running to support Body Shop for their next lip gloss. I can't find the actual letter - Roddick doesn't appear to have released it - unlike ThinkGeek and others who say the charges are unfounded.

there is a current article from the relase date in 1997 I'm not sure if it's behind the firewall because I am a subscriber but it talks about the business state of BodyShop International and why the campaign was unusual.

The only online accounts of the letter I can find by anyone who saw it are by Roddick herself.

Like I said - it's a very good ad, but it's current facebook presence is misleading.

Leslie F. Miller said...

I have to agree. I wondered how this worked legally and posted that question when someone posted the ad on FB. I just couldn't believe it was so big. And I saw AR's blog and gasped.

People are too lazy. Thanks for keeping me from spending a day on this. You did good.

Mae said...

I've seen 3 of these on Facebook today and my BS meter also went off. So glad I found your blog when I found Riddick's, I agree with you 100%, and commented on each post to let them know this is an old issue and didn't go down the way they were told it did.

Kristin said...

I was honestly impressed by Ruby (yeah, she looks like me!) and posted it, but my silent BS meter rang out too. I was at work, however, and didn't have time to surf the net to find all of this info. A friend of mine found it and posted it under the link. So thank you! I still think it was a cool idea, but I'm sorry it wasn't fought for and believe you are correct - they are STILL getting tons of publicy, which was probably the main goal. Great blog - I may have to read some back issues!

Drinne said...

@Michael - I'm sorry I hadn't noticed that you seemed to think the primary source I was citing was a photographer instead of the actual CEO and founder of The Body Shop who was also directly responsible for the ad campaign that was released in 47 countries prior to release in the US.

Anita Roddick is that CEO - I hope that clears things up for you. Steve Perry is the photographer. Anita was well known and very public when The Body Shop was building it's brand and it didn't occur to me to clarify who she was - I have added updated text to the main blog.

Thank you for pointing out the possibility missing that fact - it apparently really isn't evident from her blog although very clear from her Facebook page which is still up. She was a brilliant and very ethical person, however frequently people fighting one fight hard don't realize their impact on other fights.

and @Mae and @leslie - welcome to the blog, glad I could help I was kind of nervous about posting this but I was really pissed off, so I did it anyway : )

morgan wyatt said...

I work with teenage girls and less than 10% look like Barbie. Out of those 10%, they won't keep looking like Barbie over the years. The question is why do we destroy girl's self confidence before they actually have a chance at having a good body image.