If You Worked At Mattel And Thought About Making A Non-Barbie Doll, You Can't

from the how-dare-you... dept

Thu, Dec 4th 2008 8:20pm — Mike Masnick

A bunch of folks have sent in the story that the ultra-popular "Bratz" dolls have been banned by a judge following a long court case. The case revolved around a former employee of Mattel (makers of Barbie), who apparently developed the concept of the Bratz dolls while working there. However, he ended up going out on his own to produce them -- which is the history of an awful lot of American success stories over the years. Steve Wozniak developed the Apple computer while he was working at HP, but the company wasn't interested in making the machines. Robert Noyce (founder of both Fairchild Semiconductor and Intel) felt underappreciated at Shockley Transistor. There are plenty of stories of folks working at one company realizing that they could do a better job on their own -- and that leads to competition and innovation. There was also some evidence in the case suggesting the guy had actually developed the basic idea of Bratz well before he was even employed by Mattel, though it does sound like he continued to work on the idea on the side while employed there -- though only in designing the idea, not actually making the dolls. It was only after he had left Mattel that he actually moved forward with implementing the idea. To stop him from ever going to market with a doll concept he was thinking about for years just because he worked at Mattel seems ridiculous and very anti-competitive.

However, even if you grant that Mattel has some sort "ownership" over the ideas in this guy's head while he worked at Mattel, it should only apply to the first generation of Bratz dolls. However, the court has gone even further, barring everything having to do with the Bratz dolls. Mattel, of course, is thrilled. Bratz had been the first really successful competitor to the Barbie franchise, and getting a court to shut it down completely is a huge win for Mattel. There will be an appeal, of course. The judge at least allowed the products to stay on the shelves through the holiday season, and it's quite likely that the appeals court will put a stay on the injunction until it hears the case. Even if it's eventually decided at higher courts that Bratz somehow infringe on Barbie intellectual property, it seems like a fine, rather than a complete injunction is a much more reasonable punishment.

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Filed Under: barbie, bratz
Companies: mattel, mga

44 Comments

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Jesse, 4 Dec 2008 @ 8:39pm

If Bratz dolls weren't so inherently evil, it would be a lot easier to get upset. But this sets a really stinky precedent.
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anon, 4 Dec 2008 @ 9:03pm

well...
I've seen a lot of what went on with Bratz. Although Mattel really did screw up by not taking the product to market, the employee that did it did a lot of shady things that the courts saw as being wrong.

It's unfortunate that the end result is a lot of money wasted on lawyers, one company out of biz, and another company happy that they eradicated the competition that could have been their own cash-cow had they not been so blind when they were first approached with the idea.
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cram, 4 Dec 2008 @ 9:12pm

The story also says: "The same jury later awarded Mattel $10 million for copyright infringement and $90 million for breach of contract after a lengthy trial stemming from Mattel's 2004 lawsuit ended in August."

So there was some copyright infringement. Or was there? It isn't clear. Perhaps Bryant should have developed a non-infringing concept of the Bratz dolls if he were such a great innovator and competitor. Or maybe a higher court will decide that his dolls don't infringe on Barbie, after all. I'd say it's a bit too early to give him the benefit of doubt.

Sadly it's not known how the Bratz dolls infringed on Barbie dolls and to what extent. Was it the "huge lips, pug noses, almond-shaped eyes and coquettish figures"?

"The jury verdict form only asked panelists to find whether there was infringement..but did not ask them to specify which dolls among the dozens MGA made violated the law."

That sounds fishy. The jury should have insisted that it be made clear how exactly the copyright was infringed and to what extent.
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Crimson, 4 Dec 2008 @ 9:22pm

The pertinent question is this - was he present the idea at HP and get rejected by clueless managers? This is what happened to Wozniak. Woz actually wanted HP to create the Apple.

Or did he secretly develop the property at Mattel (using their time, equipment, etc) and start his own company without showing his work to anyone?

I hate to be the black cloud here Mike, but how would you feel if one of your employees developed his own website/service while you were paying him to work develop Floor64 and went off and started up a very similiar site/service without running it by you first?
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Crimson, 4 Dec 2008 @ 9:24pm

Re: same post as #4, with better grammer (hopefully)
The pertinent question is this - did he present the idea at HP and get rejected by clueless managers? This is what happened to Wozniak. Woz actually wanted HP to create the Apple.

Or did he secretly develop the property at Mattel (using their time, equipment, etc) and start his own company without showing his work to anyone?

I hate to be the black cloud here Mike, but how would you feel if one of your employees developed his own website/service while you were paying him to work on Floor64 business and then he went off and started up a very similar site/service without running it by you first?
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Anonymous Coward, 4 Dec 2008 @ 9:44pm

Re:
I suspect that Mike would be happy.
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Michael B, 4 Dec 2008 @ 10:16pm

All About the $$$
What's fairly obvious is that Mattel would have completely ignored the Bratz phenomenon if (a) Barbie sales hadn't tanked and (b) if Bratz was a commercial flop. So now they see that Bratz is successful and, according to them, cutting into Barbie sales (a doll which is overpriced and certainly not "hip") so, rather than trying to reinvent Barbie they decide to kill the competition. Yes, MAYBE the designer of Bratz conceived of it while employed by Mattel, but is any concept thought of by an employee automatically the company's property? Would they have been so anxious to sue if, for example, the guy devised some non-toy, non-competitive product that consequently earned another company millions of dollars? I doubt it.
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Mike (profile), 4 Dec 2008 @ 10:49pm

Re: Re: same post as #4, with better grammer (hopefully)

I hate to be the black cloud here Mike, but how would you feel if one of your employees developed his own website/service while you were paying him to work on Floor64 business and then he went off and started up a very similar site/service without running it by you first?

That would be fine. I encourage my employees to do what they think is most important in their lives. I might be upset over losing a good employee, but if they really have a passion to go off and do their own thing, I'm not going to stand in their way. Over the years, some employees have left (ones I wished had stayed), but I'm still in contact with every single person who's ever worked here in some way or another, and always excited to hear about their progress with other projects.
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Crimson, 4 Dec 2008 @ 10:57pm

Mike, let me be more explicit. I'm NOT simply talking about losing a good employee.

Suppose you pay an employee to work 8 hours/day on Floor64. He (or she) told you he was working on Floor64 business. But it turns out, he was really working on his own business when he claimed to be working on Floor64 and goes off to use the material built using your resources to start his own company.

Would you still be OK with this?
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Anonymous Coward, 4 Dec 2008 @ 11:13pm

it doesnt matter if you work on it in your own time using your own resources, once you go corporate as an engineer or designer of some kind, the bosses will ask/require you to sign a contract indicating that any and all ideas made during your employment at that company, are owned by the company unless permission otherwise is given at a later date.

If you come up with ideas while working at corporate, do NOT ever let your bosses find out, because they own the rights to the patents. Even if it has nothing to do with their company (although in those cases they will often allow you to keep working on it because they are uninterested in a totally unrelated patent in their portfolio).

There's a good reason he left mattel. Too bad they caught him.
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bikey (profile), 5 Dec 2008 @ 12:38am

IP
One must accept that IP law is no longer aimed at fostering innovation but at protecting the old guys who once had a thought. Lawrence Lessig is on the right track - go after the lobbyists who 'push' congress to enact ever more draconian IP law, and parse out 'national security' from IP law so that these guys can't use fear to get every detail of your life.
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Logan Starrider, 5 Dec 2008 @ 2:17am

Mattel
I think the real problem and shame is (everyone here is overlooking) Mattel thought it un-necessary to build any dolls that represented minorities.
I can tell you my daughter HATED little blond haired dolls. Can you find any American-Indian dolls WITHOUT headdress, buckskin miniskirts, and moccisins?

Bratz, while admittedly on the trashy side, a minority girl could look at and see something that was at least close to how they looked.
Now I guess it's back to everyone having to fall in line and buy the good little aryian blonde chick...I feel so sorry for my grand-daughters.
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anon, 5 Dec 2008 @ 2:29am

Every time i see a story like this, where a corporation unethically used the law to push themselves towards a monopoly of the market (or sues their fans, or creates draconian TOS's to limit creativity), it paints a very vivid picture in my head.

I see the CEOs of the corporations as overfed, spoiled, bitter and whiny kids whos sissy parents have just taken a slice of their 8-gallon 15 layer chocolate cake and given it to a starving child. The kid does what comes natural to them- they demand their slice of the cake back. i mean, its their cake, right? legally, not really, and ethically not at all.
unfortunately, the system that we have instantiated in our society allows the use of scalpels and stomach pumps in order to retreive our cake.

disgusting.
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joe hark, 5 Dec 2008 @ 3:04am

what's the problem?
So what is stopping anyone else who never worked at either company from creating a non-infringing line of ugly dolls named Lil Creeps or Nasties?

Oh, wait. I just googled those words and either of them is pretty much a guaranteed lawsuit.
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Mike (profile), 5 Dec 2008 @ 3:15am

Re:
Suppose you pay an employee to work 8 hours/day on Floor64. He (or she) told you he was working on Floor64 business. But it turns out, he was really working on his own business when he claimed to be working on Floor64 and goes off to use the material built using your resources to start his own company.

How do you define "my resources"? First of all, if he wasn't actually getting his work done for us, then I would be happy to see him go. If he is getting his work done, he (or she -- we have women employees as well) is free to do what he wants with the rest of his time -- even if it's creating his own business. In fact, I've encouraged some of our employees to work on various side projects they have that seem interesting.
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Freeman, 5 Dec 2008 @ 3:29am

As Far as Ideas Go...
I've read a lot of comment about Mattel dropping the ball when it came to fielding the original idea for the Bratz doll. I think it's safe to say that this is one of those 'nobody saw it coming' phenomenons. Think about that fateful exchange:

Bryant: "Boss, I've got a great new idea for a doll line."

Mattel Exec: "Pitch it to me."

B: Oh, it's fantastic. I've got a design for a new doll I think we should market to girls between six and twelve. We'll give them ultra-skinny bodies and huge heads and feet which are grotesquely disproportionate to their bodies.

ME: Uh, go on.

B: Then we'll dress them in tube tops and miniskirts and give them gaudy eye makeup to make them look like whores. We won't give them a nose, and we'll make their lips look like a collagen job gone horrifyingly wrong - in fact, I propose their lips be as large as both of their hands put together.

ME: This isn't sounding very aesthet...

B: Oh, and their eyes, too. Also, I thought about names like 'Lick Lick' and "Lisa Lichstaspread,' but we'll take the edge off and use names like 'Sasha' and 'Jade' instead, you know, for marketability purposes.

ME: These things sound disfigured...do you even have...

B: The best part is, we can sell the little hooches for twice what a Barbie costs, because God knows prepubescent girls would just love to have a doll that looks like a girl who spends her weekends spread-eagle with her panties wrapped around her platform shoes in the back of her boyfriend's '89 Camaro, crossing those 'please God no baby' fingers as she makes another mental note to start taking the pill. And parents will shell it out, because after all, they're all afraid of their kids. Whaddya say, boss?

ME: Uh, let's go 99.99% no.

B: So there's a chance!

ME: Well...do you own a firearm?

B: Uh, no.

ME: Go ahead and bump that up to 100%, then.
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Twinrova, 5 Dec 2008 @ 4:02am

Mattel's products suck which is why they're REALLY suing.
First, to all you out there who call these dolls "slutty", shut the hell up. In case you haven't paid attention, most of these dolls are dressing up as many role models tweens watch every day.

While I personally don't see how these dolls can be appealing to anyone, sales of these plastic icons prove it's quite a few, and this is why Mattel is up in arms about it.

"Even if it's eventually decided at higher courts that Bratz somehow infringe on Barbie intellectual property, it seems like a fine, rather than a complete injunction is a much more reasonable punishment."
Fine? Bullshit. There is no IP infringement as any person with half a brain can easily tell the difference between a Barbie and Bratz doll.

The initial ruling was also bullshit which shows more of how our judicial system is failing, rather than protecting. Mattel's "rights" are out of line here so there was nothing to protect.

"However, even if you grant that Mattel has some sort "ownership" over the ideas in this guy's head while he worked at Mattel"
ANYONE who thinks this is an ignorant moron and is usually called "CEO". No one, not even the idea maker, owns an idea. It's not tangible. You can't own it. You may own the product spurned from the idea, but not the idea.

Oh, wait. This explains why there are so many IP issues as ignorant morons continue to believe this.

Here's an idea (up for sale if anyone wants it): Let's fire anyone who thinks ideas can be owned so the rest of business can truly innovate.
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hegemon13, 5 Dec 2008 @ 6:13am

No more Bratz!
Good riddance! Okay, no, not really. I hate the precedent this sets. But, man, I despise those dolls and all the materialism and slutty attire they represent.
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TDR, 5 Dec 2008 @ 6:14am

Half the country would be out of work then, I suppose.
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Angry Dad, 5 Dec 2008 @ 7:10am

Good News!
Dolls that encourage little girls to dress like sluts SHOULD be banned for that reason alone, regardless of IP considerations.
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Anonymous Coward, 5 Dec 2008 @ 7:35am

Re: Good News!
Haven't watching Disney, lately, have you? They dress just like the girls on DISNEY dress....
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Crimson, 5 Dec 2008 @ 7:44am

"How do you define "my resources"? First of all, if he wasn't actually getting his work done for us, then I would be happy to see him go. If he is getting his work done, he (or she -- we have women employees as well) is free to do what he wants with the rest of his time -- even if it's creating his own business. In fact, I've encouraged some of our employees to work on various side projects they have that seem interesting."

"Your resources" are your company equipment and time. Let's pretend you had an office with lots of specialized equipment for doing specialized design work (like say, designing and creating molds of dolls).

And more importantly, I'm not saying you told or encourage them to use their *free* time to do something else. You instructed them, as many business do, that company equipment and time can only be used for YOUR company's business. Let's say you made them sign an agreement saying exactly that, as I'm sure Mattel did.

Even at Google, the apocryphal "20% side project" is owned by Google.
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mattel == brats, 5 Dec 2008 @ 8:45am

copyright ?
"The same jury later awarded Mattel $10 million for copyright infringement "

How can one copyright the likeness of the human form ?
This is stupid.
Where do they find these people to sit on the jury ?
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nipseyrussell, 5 Dec 2008 @ 9:46am

Re: Mattel
i hear your plea, and agree, but...."Can you find any American-Indian dolls WITHOUT headdress, buckskin miniskirts, and moccisins?" - wouldnt that just look like any other brunette "white" doll????
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nasch, 5 Dec 2008 @ 10:39am

Re:
I'd be interested in some evidence that all corporate engineering jobs come with employment contracts including such clauses.

Know your obligations and rights. If you sign an employment contract, read it thoroughly and know that you have the right to change it and give your employer an opportunity to accept or reject the change. If there's something you don't like, cross it out, then sign - and draw your employer's attention to the revision to avoid unpleasantness later.
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nasch, 5 Dec 2008 @ 10:46am

Re: Mattel's products suck which is why they're REALLY suing.
Wait a minute, WTH? Twinrova is making perfect sense!
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Yakko Warner, 5 Dec 2008 @ 10:54am

Re: Re: Good News!
And that makes it all ok then?

As some friends of ours commented when I rolled my eyes when their daughter dressed up as Hannah Montana for Halloween: "Hey, we like Hannah Montana. She actually wears clothes."
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Mike (profile), 5 Dec 2008 @ 10:58am

Re:

"Your resources" are your company equipment and time. Let's pretend you had an office with lots of specialized equipment for doing specialized design work (like say, designing and creating molds of dolls).

It's not at all clear that this guy used company owned tools, and unless you're being paid hourly (we don't pay our employees hourly) I don't believe in "company owned time."

And more importantly, I'm not saying you told or encourage them to use their *free* time to do something else. You instructed them, as many business do, that company equipment and time can only be used for YOUR company's business. Let's say you made them sign an agreement saying exactly that, as I'm sure Mattel did.

I wouldn't do that. I see no reason to do so.
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Ken, 5 Dec 2008 @ 12:06pm

Re: Mattel
So you think minorities should be portrayed as pre-teen tramps, and that's OK? Last time I checked, Mattel has been making ethnic Barbie's (and Barbie's friends) for decades. If you can't find them, then maybe the problem is the store you shop in, not the folks making the dolls. Oh, and what's with the prejudice against American-Indian Barbie with an indian-themed outfit? Surely all the millions of other clothes designed for Barbie will fit her, no? How should they packager her? Dressed as a casino employee with a bottle of whiskey? I still can't find any reference to an indian "bratz" character. I'm glad they're taking bratz off the shelves simply because I've never approved of pre-teens running around looking like street hookers.
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Ken, 5 Dec 2008 @ 12:13pm

Re: Re: Good News!
On what Disney shows? I haven't seen "I'm a pre-teen whore" on Disney, but then I don't get the HD channels. The girls on Nickelodeon sure don't dress that way. Or do you have a special "hoochi" Disney channel?
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BTR1701, 5 Dec 2008 @ 12:18pm

Re: Re: Clause
> I'd be interested in some evidence that all
> corporate engineering jobs come with employment
> contracts including such clauses.

Or, more to the point, that such a clause would be remotely enforceable by a court.
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The infamous Joe, 5 Dec 2008 @ 12:55pm

Re: As Far as Ideas Go...
I get the humor, really, but it turned out there is a huge market for mishapen, trashy pre-teen dolls. I think that says much more (and worse) about this generation.

I have an idea.. A cross between transformers and bratz: Robo-pimps. With Kungfu backhand action. :)
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Oh Boy, 5 Dec 2008 @ 1:33pm

copyright on Nature
I wonder if there are other things in nature for which mattel thinks they have copyright.
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mookie von zipper, 5 Dec 2008 @ 10:04pm

mike and crimson...

ok, what if your employee kicked the door to your house in and gave your kids drugs, drank all your beer, raped your wife, stole your car and credit cards, used one to by an assualt rifle at a gun show, and then shot up your place of business, killing 5 and wounding 17 before turning the gun on himself, but not before the final insult of said employee expensing the afformentioned carnage as "business lunch" and "mileage"...

...oh, and all of this was on company time...

i think we've found common ground here and would agree that these actions are not copyright violations... but it still may not prevent a movie studio from claiming it's their intellectual property...
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Omali, 6 Dec 2008 @ 9:47pm

Re: Mattel's products suck which is why they're REALLY suing.
I spy a ten year old and his name is twinrova.

The dolls are slutty, as are the "role model tweens" they are modeled after.

Telling the difference isn't IP law, it's trademark.

And to your comment about nobody owning an idea; it's in a contract, the same thing happened with Steve Wozniak. They owned everything he came up with while he was working for them, same thing happens with companies like Mattel. You can own it, it's called copyright and intellectual property.

Don't quit your day job, let alone be fired for making stupid suggestions
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Francis, 6 Dec 2008 @ 11:00pm

Actually, no. Your ideas are your ideas.
If an individual comes up with an idea, whether they pitch it to the company they work for or not, it remains their idea. This continues even if the company they work for acts on the pitch. The copyright on the original concept can only be signed over to a company with complicated legal documents. The original concept remains prior art to any patents the company may apply for.
The only way around this for companies is to incorporate – ie. turn the company into a sort of person. Then those involved in the corporation may work together to come up with the details of a concept, and the corporation still owns the copyright / rights to patent, but if it's one individual working on it by themselves, it's still them and not the corporation's.

As much as I despise Bratz itself, this sounds like gross injustice to me.
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yearzero, 7 Dec 2008 @ 10:18pm

Re:
Crimson, you hit it exactly right. At trial, Bryant admitted that he never showed Bratz to Mattel. While the post above suggests that there was evidence that Bryant developed Bratz before he worked for Mattel, that was the claim that the jury rejected after hearing evidence. It found that Bryant created and developed Bratz while under contract with Mattel. The jury also found that MGA concealed Bryant's involvement with Bratz and lied for years about where Bratz came from. Obviously, that in itself shows MGA and Bryant knew they were in the wrong. And who can forget the publicity about Bryant installing and running a program called "Evidence Eliminator" on his computer after he was sued? We all have plenty of legitimate reasons to be concerned about US IP law, but this case isn't among them.
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yearzero, 7 Dec 2008 @ 10:25pm

Re: All About the $$$
As I understand it, Mattel owned the designs created by its employees that relate to its business. I doubt it could have sued Bryant if he'd come up with a non-toy design and hadn't also used Mattel resources. Anyway, what is your point here? That it's okay to steal so long as the theft is big enough? Fundamentally, you want to be paid by the man, he owns what you make that relates to your job. You want to keep what you develop? Strike out on your own. It's pretty simple.
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yearzero, 7 Dec 2008 @ 10:36pm

Re: Actually, no. Your ideas are your ideas.
Wow, you must have been the person giving that Mattel designer the brillant advice that led him right into this disaster. I just hope to god no one else listens to you and ends up being sued in another case like this one. First, it is common in virtually every creative industry here in Calfornia -- software, film, TV, toys, etc., etc. -- for employees to sign inventions agreements that assign to their employer all rights in their work product that relates to their employer's business. Courts almost always uphold these contracts. Second, this assignment to the employer occurs as a matter of law under the Copyright Act, even without an agreement. It is the work-made-for-hire doctrine. Basically, if you create certain categories of copyrightable works in the course of your employment, your employer owns them.
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year, 7 Dec 2008 @ 10:53pm

Re: well...
What's your evidence that Mattel ever was approached with Bratz or turned it down? The Bratz designer said at trial that he never told Mattel about it. The jury also found that MGA lied for years about where Bratz came from. (The legal term is "fraudulent concealment"). I work in IP, and I have to say that I have trouble seeing what the issue is here. You work for a company, you will be required to sign an inventions agreement. Hell, the manufacturer of the Bratz dolls, MGA, has them too, just like Mattel and almost every other company that develops products. If you don't like it, don't take the job or else try to negotiate a different agreement. Or, at a bare minimum, don't sneak off to a competitor like Bryant did and then lie about it.
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Anonymous Coward, 14 Dec 2008 @ 8:27pm

Re: Re: same post as #4, with better grammer (hopefully)
That's not really correct, Woz didn't want to give up the ideas but was required to do so. He went to the company and asked for a waiver of that obligation which they gave to him. In retrospect it was one of the dumbest business decisions ever, but it's how it works.

In this case his contract probably had a similar clause for anything he was creating or innovating at the time of his employment and failed to get the requisite waiver.
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Ronald J Riley (profile), 30 May 2009 @ 6:26pm

Creator Bill of Rights
Mattel's conduct with Carter Bryant is outrageous. It is by no means the first instance. Mattel is well known in the inventor community for their entitlement school yard bully mentality.

Ronald J. Riley,

Speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 8 pm EST.
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courtney, 3 Jul 2009 @ 9:08am

bratz are nothing like barbie.
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Laura Tompkins, 2 Dec 2009 @ 2:08pm

Conspiracy
"I hate Barbie," is my new slogan. "Bratz" represented to young inner city girls an image of them that was successful beautiful and independent. The dolls dressed like a diva with all the bling-bling of a urban beauty. There are more issues at play for Mattel other than money and race and social status are among those issues. It is time for Barbie to move on becasue she was the plastic version of societies standard of beauty. It is time for that image to be abolished.
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