By Mike Masnick, Techdirt. – July 23, 2010 at 10:55AM
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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