Judge Says Barbie Doesn't Get To Own The Bratz

from the the-bratz-win dept

We’ve been following a lawsuit over Bratz dolls for a few years now. It involved a guy who worked at Mattel (not in a position designing dolls). While there, he had an idea for a new line of dolls, and eventually negotiated a deal to create those dolls for competitor MGA. The new dolls became The Bratz, one of the few super successful doll lines to challenge the success of Barbie dolls. Somewhere along the line, Mattel realized that the guy had worked at Mattel, and claimed that his employment agreement meant Mattel owned pretty much all rights to Bratz dolls, and that MGA owed Mattel a billion dollars. A court sided with Mattel and didn’t just say that MGA and Bratz infringed, but effectively handed over all rights to Bratz dolls — including future plans. This made absolutely no sense to us. At the very least, if the court found that Mattel owned the rights to the original design, at most Mattel should have only been able to get damages for those original designs. Giving them rights to later designs makes no sense at all. MGA appealed noting that giving Mattel all of its plans, as demanded, would result in “devastating and irreversible consequences.” After sounding skeptical late last year, Judge Kozinski in the 9th circuit has now soundly rejected most of the lower court ruling (pdf).

The ruling itself is a really good read, especially if you’re interested in the difference between ideas and expression, and making sure that copyright only covers the copyrightable part of an expression. A common misconception is that copyright covers an entire work. In some cases, that’s not true. Only parts of a work may get copyright protection:




Among the notable parts, the judge is troubled by the lower courts ruling that Bryant’s design work that was done after hours automatically is given to Mattel. As he notes, the employment agreement says inventions that are developed while employed belong to Mattel — and the definition of inventions does not include “ideas.” And, since IP system defenders are always quick to point out that inventions and ideas are not the same thing, the judge notes that it’s not at all clear that the employment agreement covers the idea of the Bratz dolls. At the very least, the court says the lower court shouldn’t have ruled on summary judgment that the idea of Bratz dolls automatically belonged to Mattel. The court also noted that the terms of the employment agreement were ambiguous, such that it wasn’t at all clear or obvious if things done on personal time were covered by the agreement.

But more interesting is the discussion of how much of the IP would belong to Mattel even if it’s determined that MGA infringed. Kozinski clearly has problems with the decision to assign all current and future plans to Mattel, pointing out that this seems to be based on a misreading of the case law. He notes that the law does allow appreciation in value to go to the rightful owner, but mainly if that appreciation in value is due to external factors. He finds it quite troubling that Mattel should be given all of the value created through MGA’s hard work:


Even assuming that MGA
took some ideas wrongfully, it added tremendous value by
turning the ideas into products and, eventually, a popular and
highly profitable brand. The value added by MGA’s hard
work and creativity dwarfs the value of the original ideas Bryant
brought with him, even recognizing the significance of
those ideas….

It is not equitable to transfer this billion dollar brand–
the value of which is overwhelmingly the result of MGA’s
legitimate efforts–because it may have started with two misappropriated
names. The district court’s imposition of a constructive
trust forcing MGA to hand over its sweat equity was
an abuse of discretion and must be vacated.

The next part highlights that just because there were similarities between the original ideas and the Bratz dolls, it doesn’t mean Mattel should get all ownership. If it is determined that Mattel holds the copyright (again, still somewhat in dispute), it should only be limited to the parts of the dolls that are covered by the copyright. Here’s where the narrow protections of copyright law come into play:


In order to determine the scope of protection for the
sculpt, we must first filter out any unprotectable elements.
Producing small plastic dolls that resemble young females is
a staple of the fashion doll market.
To this basic concept, the
Bratz dolls add exaggerated features, such as an oversized
head and feet. But many fashion dolls have exaggerated
features–take the oversized heads of the Blythe dolls and My
Scene Barbies as examples. Moreover, women have often
been depicted with exaggerated proportions similar to those of
the Bratz dolls–from Betty Boop to characters in Japanese
anime and Steve Madden ads. The concept of depicting a
young, fashion-forward female with exaggerated features,
including an oversized head and feet, is therefore unoriginal
as well as an unprotectable idea….

It’s true that there’s a broad range of
expression for bodies with exaggerated features: One could
make a fashion doll with a large nose instead of a small one,
or a potbelly instead of a narrow waist. But there’s not a big
market for fashion dolls that look like Patty and Selma Bouvier.
Little girls buy fashion dolls with idealized proportions
–which means slightly larger heads, eyes and lips; slightly
smaller noses and waists; and slightly longer limbs than those
that appear routinely in nature. But these features can be
exaggerated only so much: Make the head too large or the
waist too small and the doll becomes freakish, not idealized.

….

The
only unprotectable elements the district court identified were:
(1) the dolls’ resemblance to humans; (2) the presence of hair,
head, two eyes and other human features; (3) human clothes,
shoes and accessories; (4) age, race, ethnicity and “urban” or
“rural” appearances; (5) standard features relative to others
(like a thin body); and (6) other standard treatments of the
subject matter. And it reasoned that the doll’s
“[p]articularized, synergistic compilation and expression of
the human form and anatomy that expresses a unique style
and conveys a distinct look or attitude” is protectable, along
with the doll fashions that expressed an “aggressive, contemporary,
youthful style.” But Mattel can’t claim a monopoly
over fashion dolls with a bratty look or attitude, or dolls sporting
trendy clothing–these are all unprotectable ideas….

This error was significant. Although substantial similarity
was the appropriate standard, a finding of substantial
similarity between two works can’t be based on similarities in
unprotectable elements.
When works of art
share an idea, they’ll often be “similar” in the layman’s sense
of the term. For example, the stuffed, cuddly dinosaurs… were
similar in that they were all stuffed, cuddly dinosaurs–but
that’s not the sort of similarity we look for in copyright law….

MGA’s Bratz dolls can’t be considered substantially
similar to Bryant’s preliminary sketches simply because the
dolls and sketches depict young, stylish girls with big heads
and an attitude. Yet this appears to be how the district court
reasoned

When we wrote about this case earlier, it kicked off quite a discussion. Many people insisted that because Bryant designed the dolls while employed by Mattel, Mattel easily deserved all of the benefits accrued by MGA. It’s great to see Kozinski point out that this is not true, and recognize that there’s a big difference between ideas, expression and execution, as well as highlighting the difference between copyright covering an entire product and just the protectable parts of a product. While one would hope all judges would understand this, clearly, many do not.

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Companies: mattel, mga

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Comments on “Judge Says Barbie Doesn't Get To Own The Bratz”

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27 Comments
intervalsays:

So what was he?

In the software biz we often sign agreements that inventions made on company time and with the company’s assets belong to the company, and I have no problem with that. But, at least with my current situation and all previous that I can think of, anything I invent away from the office and not using company equipment is mine. If this weren’t the case its possible that anything anyone was working on before their employment could belong to the company. That would be absurd.

harbingerofdoomsays:

Re: So what was he?

and generally speaking, you can pretty much wipe your rear end with most of those agreements. they are often times very hastily tossed in by someone that doesnt actually understand what they are putting in there and they are full of holes so large you can drive a mack truck through them.

i have been forced to sign those agreements along with non-compete agreements a number of times and not one was clear and unambiguous.

Paulsays:

Re: So what was he?

Microsoft’s employment agreement requires all patents to be assigned to Microsoft, regardless of when you do the work or whose resources (your own or Microsoft’s) are used to develop the patent. That said, I don’t know about copyrights, but I do believe that Richard Brodie wrote “Memes A Virus of the Mind” while at Microsoft, and Microsoft hasn’t laid claim to the book. I don’t remember anything about copyright while at Microsoft, but it’s been 10 years…

Anonymoussays:

I always wonder why it’s legal for a company to claim ownership of everything a person does, even stuff they do on their free time, even if the person is working on something that may compete with their own company produces. If antitrust law doesn’t cover this, it really should. The only purpose of these agreements is to try and prevent capitalism from working. How can we have a vibrant economy is people are essentially locked into their job because all their experience is useless for 3 years, but if they try to get something started in their free time while still working then they lose all the rights to it.

Great ruling.

Anonymoussays:

Re:

You have constructed a straw man, then burned down the barn.

An employee can get something started in their free time, as long as its not significantly derived from what their employer is doing. If this was not the case, then employers would be very reluctant to share intellectual property with their own employees, which would surely be a larger impediment to innovation than the alternative. More so, if the employer has no legitimate interest in the invention, it will often sign away the rights to it.

Ima Fishsays:

Thanks for doing a thorough overview of this case. The Associated Press merely states that the appeals court reversed because “the trial judge had made errors in instructing the jury.” I highly doubt if the “journalist” who wrote that piece had read the opinion, let alone attempted to even understand it.

It’s a good thing your write-up is on the top for a search on the story at Google news. Interested readers will actually learn something.

Make this standard reading...

For anyone in the arts, primarily literature and movie/TV shows, that think that overarching plot similarities or generic character similarities can equal copyright infringement:

“This error was significant. Although substantial similarity was the appropriate standard, a finding of substantial similarity between two works can’t be based on similarities in unprotectable elements. When works of art share an idea, they’ll often be “similar” in the layman’s sense of the term.”

I’m trying to think of how anyone could have explained better how likeness does not automagically equal infringment, but I can’t come up with anything. This was succinct, eloquent, pithy, and absolutely spot on all at once.

Bravo….

Re: Slippery slope?

“So if this guy had a child while working at Mattel, (the child was “designed” while he was working there), does that mean the child would belong to Mattel?”

Yes, plus it would have to wear whorish clothes and makeup, workout constantly to keep insanely unrealistic perportions, and fuck some guy named Ken.

….and no, it doesn’t matter whether the child was male or female, the above would apply universally. Mattel is a fucked up place to work….

Anonymoussays:

First off I don’t like Bratz dolls.

I followed this case simply because of the career path I’m taking. It scared me that a court could rule something a person creates, their idea, is property of the company they work for. And that is no matter the time it happens. I can understand using a companies resources to make somthing you have a compensation arguement, but still how far should that go? One could argue that when you work for a company they provide you with some sort of facility to learn your craft. In other words you learn and gain experience from that job, but how far should that extend? Does every company who supplies you with oportunity now own everything you do going forward? And what happens when you work for multiple companies?

I’m glad this judge ruled the way he did. It shows there is some sense left in the judicial system.

And lastly I don’t like Bratz dolls. ­čÖé

Anonymoussays:

It is frustrating to read a judicial opinion where a critical document is presented in highly redacted form because, as in this case, the IP rights vis a vis of an employer and employee depends in significant part on the document as a whole.

Assuming that the redactions are limited to all legally relevant portions of the document and these portions are not inconsistent with the redacted portions, I was immediately stuck by the use of the term “inventions” in such a casual manner to cover matters having virtually no nexus with other IP rights. Moreover, I found it odd that no mention was made in the opinion of Sections 2870 – 2872 of the California Business and Professions Code, which expounds on the requirements of law relative to employee inventions and the obligations of employers to comply with these sections of law.

The 9th Circuit opinion does accurately delve into the distinction between ideas and expression for purposes of copyright law, and in many respects the same distinctions can be applied to patent law. Importantly, while patent and copyright law are creatures of federal law, for the most part property interests are the province of state law.

It would be foolhardy to venture even a guess about what will transpire on remand, but it does seem clear that the district court’s opinion will likely be scaled way back, perhaps even to the point that the decision will be reversed almost entirely.

If anything, the case demonstrates the need for agreements such as this to be crafted in a thoughtful manner, need to comply with all aspects of California law appricable to such agreements, and should be read and understood by a potential employee before signing on the dotted line.

Bengiesays:

Only If

The only times a previous company should get possible ownership of a past employee’s ideas is if 1) the Idea used inside company knowledge 2) the employee was paid to design such stuff and didn’t report the idea 3) the idea was designed on company time

Ma’b a few other exceptions, but along those lines.

Anonymoussays:

Re: Only If

“2) the employee was paid to design such stuff and didn’t report the idea”

I would take issue with this. An employer should not have rights to an employee’s ideas, or even require they be reported, simply because there is overlap between the idea and the person’s day job. The test should be: has the company funded the idea? That is, was it developed using the company’s proprietary information, time, or resources? If not, then the company has no claim.

If a noncompete is involved, there may be an issue there — but even then, it should give the company ownership over the idea.

Richardsays:

Re: Re: Only If

“2) the employee was paid to design such stuff and didn’t report the idea”

I would take issue with this.

If you read the previous post as an “and” rather than an “or” I think this makes sense.

I think “the employee was paid to design such stuff” is fine as a necessary condition – but it isn’t a sufficient one.

What's wrong with our justice system?says:

what justice system?

The sad part that everyone misses is the fact that the district Judge ( Larson) was a corupt judge who his friends from the US Attornys days work at Mattel’s law firm ( Quinn Emanuel) and they scratched his back and he scratched theirs. Larson has 6 kids when took the federal court bench.

He also subcontracted this case to his buddies such as a ” mediator”, ” receiver”, ” Forensic auditor”, ” Discovery refree” for millions of $ paid for by the parties. Only he and them and God knows how much of it they paid him on the side.

He then quit saying he cant pay for his kids ( he had his 7th) with $169,000 he was getting paid. He took a job with a law firm who’s connected to John Quinn for a whoping $2,000,000 a year!!

In the mean time, over 300 families lost their jobs and income due this law suit.

Even more sad is the fact that nobody can do anything to this man ( Larson). He’s imuune!

What's wrong with our justice system?says:

what justice system?

The sad part that everyone misses is the fact that the district Judge ( Larson) was a corupt judge who his friends from the US Attornys days work at Mattel’s law firm ( Quinn Emanuel) and they scratched his back and he scratched theirs. Larson has 6 kids when took the federal court bench.

He also subcontracted this case to his buddies such as a ” mediator”, ” receiver”, ” Forensic auditor”, ” Discovery refree” for millions of $ paid for by the parties. Only he and them and God knows how much of it they paid him on the side.

He then quit saying he cant pay for his kids ( he had his 7th) with $169,000 he was getting paid. He took a job with a law firm who’s connected to John Quinn for a whoping $2,000,000 a year!!

In the mean time, over 300 families lost their jobs and income due this law suit.

Even more sad is the fact that nobody can do anything to this man ( Larson). He’s imuune!

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