Wednesday, July 28, 2010

Barbie vs. Bratz - You can't script this reality show

Brief Update regarding last week’s blog entry: One day after the announced settlement regarding “Shaq Vs.” and pointing out that ideas are not copyrightable I pointed to the example of Pros Vs. Joes on Spike as a prior example of a similar idea. On Thursday, I found a lawsuit brought by two men from Long Island against Spike TV for infringing on its script for a similar reality television show (Yes, I know I just wrote script for a similar reality show.) See Complaint here. I will continue to monitor to the case and keep the blog updated.

Part of the premise to last week’s blog is that ideas themselves are not copyrightable but the expression of those ideas. Partially based on this premise, the Ninth Circuit reversed an injunction for copyright infringement in the ongoing Mattel v. MGA Entertainment Inc. case involving Bratz dolls.

To briefly summarize, Carter Bryant, an individual employed by Mattel to design fashion and hairs styles for collectible Barbie dolls, developed the concept of Bratz including the names of some of the characters, sketches, and sculpt. Bryant allegedly violated his employment contract with Mattel by presenting the idea for Bratz dolls to MGA. At trial, the jury found generally that MGA was liable for copyright infringement and enjoined MGA from “producing or marketing virtually every Bratz female fashion doll."

One of the issues that should have been decided was whether Bryant’s employment contract assigned rights to Bryant’s works were created outside the scope of his employment. (If it was within the scope of Bryant’s employment, it would be a work made for hire and Mattel would be the author of the work.) Because this issue was not decided, the Ninth Circuit vacated the copyright injunction.

While the appellate court agreed that Mattel owned the copyright and MGA had access to the sketches and sculpt, whether the Bratz dolls infringe on the sculpt and the sketches was still an open question. One of the reasons the question remained open is due to the fact that only the particular expression of the doll idea was covered by copyright not the idea of the doll itself. “Otherwise the first person to express any idea would have a monopoly over it.” Mattel v. MGA Entm’t Inc., Appl No. 09-55673 at 10540.

The Ninth Circuit finds that the substantial similarity must be based on what is protectable – not idea. The court finds that the expression of an attractive young, female fashion doll with exaggerated proportions can only be expressed so many ways – for the sculpt – but not for the sketches. Thus, the court finds the sketches can have broad protection for the substantial similarity test.

The court remands the case to filter out the ideas within the sketches to determine whether the sketches were infringed by the Bratz dolls. The court also advises the district court that while some of the first Bratz dolls were substantially similar to the sketches a large majority of the subsequent generations of Bratz dolls evolved. Any substantially similarity to the original sketches to the subsequent generations may have only been similarity to the ideas.

The appellate court vacated the injunction and remanded. There are other pending issues on appeal including damages which are yet to be decided.

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