Cases of Note-Copyright-Constructive Trust
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Against the Grain Volume 30 Issue 2 Article 23 2018 Cases of Note-Copyright-Constructive Trust Bruce Strauch The Citadel, Emeritus, [email protected] Bryan M. Carson Western Kentucky University, [email protected] Jack Montgomery Western Kentucky University Libraries, [email protected] Follow this and additional works at: https://docs.lib.purdue.edu/atg Part of the Library and Information Science Commons Recommended Citation Strauch, Bruce; Carson, Bryan M.; and Montgomery, Jack (2018) "Cases of Note-Copyright-Constructive Trust," Against the Grain: Vol. 30: Iss. 2, Article 23. DOI: https://doi.org/10.7771/2380-176X.8049 This document has been made available through Purdue e-Pubs, a service of the Purdue University Libraries. Please contact [email protected] for additional information. LEGAL ISSUES Section Editors: Bruce Strauch (The Citadel) <[email protected]> Jack Montgomery (Western Kentucky University) <[email protected]> Cases of Note — Copyright — Constructive Trust Column Editor: Bruce Strauch (The Citadel, Emeritus) <[email protected]> MATTEL, INC. V. MGA ENTERTAIN- Pool, Bratz Babyz Ponyz Buggy Blitz, Ninth said ‘twas inequitable to transfer a MENT, INC. UNITED STATES COURT OF etc.), video games (“Bratz: Girlz Really billion dollar brand because Bryant had an APPEALS FOR THE NINTH CIRCUIT, Rock,” “Bratz: Forever Diamondz,” idea in the last weeks of his job. 2010 U.S. App. LEXIS 26937. “Bratz: Rock Angelz,” etc.) AND Bratz So Now What? This opinion was written by Chief Judge the movie. Well, you’re back with copyright viola- Alex Kozinski who was considered one of the The Appeal great brains of copyright. See “Bet You Missed tions. It” in this issue for a brief description of how A constructive trust transfers wrongfully The jury had been quite astute, sending the he was driven off the bench. held property to its rightful owner. Communist judge a note asking if it could find that only the Party of U.S. v. 522 Valencia, Inc., 35 Cal. first generation of Bratz dolls were infringing. Carter Bryant worked in the Mattel App. 4th 980 (1995). “Barbie Collectibles” department designing And he said they could. And they found dam- fashion and hair styles for high-end collector That case name should grab your attention. ages of $10 million, a mere bagatelle. dolls. In a lightbulb moment, he conceived of It’s a fight over ownership of real estate. What? The judge didn’t care for this and made Bratz dolls — urban, multiethnic and with a I thought commies believed in sharing! his own finding of infringement leading to the … well … bratty attitude. Bryant’s Mattel contract had him assign- constructive trust. He pitched his idea to MGA Entertain- ing all “inventions” to the company and stated The Ninth Cir. held that Mattel only owned ment, a Mattel competitor. They loved it. He the term “includes, but is not limited to, all copyright in the original sketches and the gave two weeks notice to Mattel. discoveries, improvements, processes, devel- sculpt with bratty expression — not the idea opments, designs, know-how, data computer In no time, the “anti-Barbie” began to crush of a bratty doll. Mattel could not own the programs and formulae, whether patentable its rival. By 2005, the Bratz line had revenues idea of young, hip, female fashion dolls with or unpatentable.” of $800 million while Mattel steadily descend- exaggerated features. ed to $445. That will tend to get the attention The Ninth Circuit chewed over whether The district court needed to take another of the suits in the top floor suites. And the “ideas” were in the list, but decided it was a look and determine if each doll (“Bratz Wild attack-dog lawyers are just a phone call away. jury question for remand. Wild West Fianna,” “Bratz Funk ‘N’ Glow And you can already see what’s coming. It did, however, find the constructive trust Jade” et al.) is like (substantially similar) or You know darn well Bryant was under a con- was way too broad. The value Mattel would different from the original sketches. It could tract where every thought he had belonged to be getting had been made much, not have found that the vast Mattel. But he just couldn’t quite see leaving much greater than Bryant’s majority of the dolls were at until his bases were covered. little sculpt and the name all like the sketches unless it relied on the similarity of And of course MGA knew Bryant had “Bratz.” As you can see from the list of ideas — big-headed, attitu- been under contract to Mattel, and did its dinous mall rats. best to conceal his employment. Besides, he products, there was claimed he designed Bratz when he was on all that designing, See: Cases of Note, a hiatus from Mattel and, by golly, his mom investment and mar- Vol. 30-1, p.52 for a would testify to it. keting. discussion of the whole Should I defraud substantial similarity But the Bratz line “The Girls With a Passion thingy. for Fashion” was a juggernaut and a badly you of stock that ris- frightened Mattel did some snooping. es in market value, I The retrial did not can’t complain that you go well for Mattel. “Wasn’t what’s-his-name in accessory de- get that benefit when you take it back. But MGA had gotten in claims of trade secret sign one of ours? Where did he go exactly?” “[w]hen the defendant profits from the wrong, theft by Mattel. The jury decided Mattel had The truth came out, and Mattel sued. it is necessary to identify the profits and to re- not proven copyright violations but instead In the final two weeks ofBryant’s Mattel capture them without capturing the fruits of the had stolen trade secrets and awarded MGA employment, he had done a “sculpt” — a defendant’s own labors or legitimate efforts.” $88.5 mil which the judge bumped up to $310 mannequin-like plastic doll body and coined Dan B. Dobbs, Dobbs Law of Remedies: Dam- million. the name “Bratz.” ages-Equity-Restitution § 6.6(3) (2d ed. 1993). MGA claimed Mattel had an 11-page The trial court really slammed MGA, grant- Gosh-a-rootie. Dobbs was my Torts prof “How to Steal” manual and lied its way into ing Mattel a constructive trust over everything way back in the UNC Law days of yore. And private showings for retailers to get advance with Bratz in it. That included — ready? —: a fabulous prof he was. knowledge of MGA’s toys. www.giftsanddec. Bratz dolls (Bratz, Bratz Boyz, Lil’ Bryant was only a minor cog in a machine com/.../485187-mga-entertainment-sues-mat- Bratz, Bratz Lil’ Angelz, Bratz Petz, that took the “Bratz” name and idea and ran tel-over-trade-secrets. Bratz Babyz, Itsy Bitsy Bratz, etc.), doll with it. First generation (Cloe, Yasmin, Sasha See also: tsi.brooklaw.edu/cases/mga-en- accessories (Bratz World House, Bratz and Jade), second (Ciara, Dana, Diona, Felicia, tertainment-inc-v-mattel-inc-et-al Fianna etc.). Cowgirlz Stable, Bratz Spring Break continued on page 43 42 Against the Grain / April 2018 <http://www.against-the-grain.com> Century will be available in June 2018. The Cases of Note Rumors archive is the latest release in Gale’s suite of from page 42 from page 36 twentieth century primary source archives, helping researchers discover the hidden histo- And Business Insider reports that lawyers ties, has selected OCLC WorldShare Man- ries behind today’s most critical conversations have done very well from all this having agement Services (WMS) as its new library including gender, race, diversity and sexuality. raked in “hundreds of millions” in hourly services platform. “Oxford Brookes University Gale will host a launch event and showcase billings. www.businessinsider.com/bratz- has over 150 years of history,” said Eric van the new archive at the American Library mattel-lawsuit-2011-8. Lubeek, Vice President, Managing Director, Association (ALA) Annual Conference, June And what of Carter Bryant? The latest on OCLC EMEA & APAC. 22-25 in New Orleans at the Gale booth #2331. him is from 2013 when he designed “Pinkie www.brookes.ac.uk www.gale.com. Cooper and the Jet Set Pets,” 9-inch fashioni- Gale, a Cengage Company, is launching a John Wiley and Sons Inc., (NYSE:JWa) stas that are human but with a cocker spaniel’s new digital archive to help researchers explore (NYSE:JWb) has recently launched a com- face for a toymaker named Bridge Direct. the development, actions and ideologies behind prehensive program to partner with leading Money.cnn.com/2013/02/04smallbusiness/ political extremism. Political Extremism & content platform providers to make it more bratz-dolls-pinkie-cooper/index.html. Radicalism in the Twentieth Century: Far- affordable and easier for students to purchase The line died within a year, but the internet right and Left Political Groups in the U.S., their Wiley course materials, as part of their has many entries by grieving doll collectors. Europe and Australia is the first digital archive tuition and fees. Wiley Inclusive Access, in documenting a range of radical right and fascist Isaac Larian, 82% MGA owner, is an Irani- partnership with Barnes and Noble College, movements, communist and socialist groups an Jewish immigrant who became a billionaire Follett, Red Shelf and VitalSource enabled and new left activists in never-before-digitized through toys. Singing Bouncy Baby, rejected campus stores, not only saves students more primary sources. The archive contains more by Mattel, became his first hit in 1997. than 60% off the cost of a bound text, but also than 600,000 pages of content and more than provides valuable first-day of class access.