“America thrives on competition; Barbie, the all-American girl, will too.”
Friday, July 30th, 2010A US Court of Appeal judge has crafted a judgement in a very major US intellectual property case that is outstanding, both in its sharpness and its elegant application of basic principles of equity to intellectual property. That’s something which modern IP law seems to have really struggled to get right in recent years – no doubt a strong factor in the mushrooming of movements for IP practice reform. It has the benefit of being very readable and instructive, and I wouldn’t be surprised if non-lawyers took pleasure in reading it.
The case was part of the ongoing Bratz versus Barbie legal saga – where Mattel is trying to effectively take control of the Bratz dolls empire, developed in a rogue Mattel employee’s spare time. Mattel got first blood in a very significant 2008 victory. To quote the judge (p7): “In effect, Barbie captured the Bratz”.
At the heart of the issue was the rogue’s contract, in which he agreed to Mattel owning all his ‘inventions’ developed at any time during his employment with Mattel. The term
‘includes, but is not limited to, all discoveries, improvements, processes, developments, designs, know-how, data computer programs and formulae, whether patentable or unpatentable’
– and the lower court concluded that this included his ideas for Bratz dolls. Ideas are commercial property, even if not copyrightable, patentable or otherwise protectable.
Justice Kozinski held that the wording didn’t include ideas. The legal reasoning he uses to fall the other side of what is a rather fine line, playing on ambiguity and opting for narrow interpretation, is not wholly convincing (even if tenable), and arguably speaks more to his general views – see p9 of the judgement. But it’s sensible and equitable adjudication. But it isn’t crucial, because he then turns his guns on the remedy imposed by the lower court even if he were wrong.
He later undoes the work of previous courts that concluded that “at any time during his employment” included evenings, weekends and time off, deciding that it was so ambiguous, it should go to a jury, not be decided by judges.
To impose a constructive trust on the Bratz trademark portfolio (effectively, to say that Mattel’s ownership effectively reaches through the entirety of all parties’ efforts, investment and inventiveness in developing the Bratz brand) is grossly inequitable. It’s not wrong for the property subject constructive trusts to be handed back to the victor plus what rise in value has occurred naturally – you prevent a fraudster/thief from getting unjustly enriched using an asset that’s yours. But the line should be drawn, says Kozinski, at value added to the constructive trust assets by the hard labour of the loser. You avoid taking the defendant’s clothes along with the pound of flesh.
Further, after displaying an admirable if slightly bizarre familiarity with dolls and cartoon characters* (covering Japanese anime to Betty Boop), and discussing the utility of dolls clothes (“Dolls don’t feel cold or worry about modesty. The fashions they wear have no utilitarian function”) he finds that Mattel is only entitled to a limited standard of protection, that of virtual identity, since there is a limited range of expression of the idea:
‘Mattel [is not] 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.’
And so to the third and final, and possibly most instructive, part of the judgement, addressing the question are the Bratz dolls substantially similar to the mock-up dolls which the rogue made during his Mattel employment? If yes, the after-hours mock-ups (which would hypothetically be owned by Mattel) would have been copyrighted works infringed by the dolls. Kozinski says: no. The reason, he explains, is that an idea (for bratty dolls) is not copyrightable. Only the unique expression of the bratty doll concept is copyrightable. Once you strip away all obviously un-copyrightable features: nose, hair, eyes, etc, the sole remaining ground for the lower court’s finding of copyright infringement withers under Kozinski’s gaze – because of the idea/expression dichotomy so crucial to copyright law:
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.
Nice to know that a pernicious and bratty lawsuit over pernicious and bratty dolls can have intelligent, informative high brow dividends. It’s a victory for common sense and good, equitable justice, founded on a solid grasp of IP law and policy; the title of this piece is taken verbatim from the final words of the judgement.
*From a judge who got into hot water for ‘hacking’ into the judicial IT system to disable the ‘anti-porn’ web filter!