Barbie and Bratz Battle. Demure versus Urban, Multiethnic, and Trendy. Farting Fred.

July 22, 2010

Okay, so, look, it's a muggy, disgusting Friday morning in New York City, and while I would just as soon dazzle you all with my incredible legal knowledge, it's  just too damn hot.  I'm thinking that today calls for a lighter touch.

Perhaps you've heard of the lawsuit between Mattel, which owns the Barbie doll, and MGA Entertainment, which owns the Bratz dolls.  Although round one of the epic Battle of the Dolls went to Mattel, the appeal didn't go so well for Barbie.

Now for the fun part! The judge who authored the circuit court's opinion has a finely honed sense of humor and appreciation for some of the delicious idiocy in this case.  Here are some of the wonderfully oddball comments in the Opinion:

Barbie was the unrivaled queen of the fashion-doll market throughout the latter half of the 20th Century. But 2001 saw the introduction of Bratz, "The Girls With a Passion for Fashion!" Unlike the relatively demure Barbie, the urban, multiethnic and trendy Bratz dolls have attitude. This spunk struck a chord, and Bratz became an overnight success. Mattel, which produces Barbie, didn't relish the competition. And it was particularly unhappy when it learned that the man behind Bratz was its own former employee, Carter Bryant. At page 10529

Assuming that Mattel owns Bryant's preliminary drawings and sculpt, its copyrights in the works would cover only its particular expression of the bratty-doll idea, not the idea itself. See Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir. 1971). Otherwise, the first person to express any idea would have a monopoly over it. Degas can't prohibit other artists from painting ballerinas, and Charlaine Harris can't stop Stephenie Meyer from publishing Twilight just because Sookie came first. Similarly, MGA was free to look at Bryant's sketches and say, "Good idea! We want to create bratty dolls too."  At page 10540

Mattel argues that the sculpt was entitled to broad protection because there are many ways one can depict an exaggerated human figure. 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. At page 10544

"Novelty could have created another plush doll of a middle-aged farting man that would seem nothing like Fred. He could, for example, have a blond mullet and war flannel, have a nose that is drawn on rather than protruding substantially from the rest of the head, be standing rather than ensconced in an armchair, and be wearing shorts rather than blue pants." At page 10546

America thrives on competition; Barbie, the all-American girl, will too. At page 10549

Mattel, Inc. v. MGA Entertainment, Inc. et al. at 
(9th Circuit,  Opinion by Chief Judge Alex Kozinski, July 22, 2010)




Regulatory lawyer Bill Singer has analyzed and posted the latest crop of FINRA disciplinary cases.


Don't Forget to Visit the BrokeAndBroker Blog!

BrokeAndBroker Broke the E*TRADE Story First! 

May 5, 2010 Blog Was Ahead of the Curve:

Here's what published on May 5, 2010 at