Jewish World Review Dec. 16, 2008 / 19 Kislev 5769
This is bigger than Barbie
By Jonathan V. Last
http://www.JewishWorldReview.com | Last week, U.S. District Judge Stephen Larson issued what may be the first legal opinion ever to interest America's 8-year-old girls. He ordered a halt to all sales of Bratz dolls.
Come February, the popular toys will be pulled off store shelves, effectively killing the Bratz franchise. It's one of the most far-reaching intellectual-property decisions since Polaroid's 1985 victory over Eastman-Kodak, which forced Kodak out of the instant-camera business for good.
But let's start at the beginning - with Barbie. America's favorite fashion doll was born in 1959 and has been a mainstay for toy giant Mattel for half a century, despite many competitors.
In 2001, a company called MGA Entertainment launched a line of dolls called Bratz. They were sexed-up little numbers. Marketed to preteen girls, they often sported bare midriffs or fishnet stockings. In 2007, the American Psychological Association worried that Bratz were highly "sexualized."
In spite of this - or perhaps because of it - Bratz became big sellers. The fashion-doll market is roughly $2 billion a year, of which Barbie claims the lion's share. But Bratz made quick inroads.
By 2005, sales of Bratz dolls had reached $750 million. With the success of the toys came a host of ancillary products: lunch boxes, greeting cards, music albums, a TV series, a movie. Meanwhile, sales of Barbie plummeted as Bratz gobbled up market share.
But Barbie and Mattel had an ace in the hole: Bratz dolls were created by a man named Carter Bryant, who had previously worked for Mattel.
In 2004, Mattel filed suit against MGA, alleging that Bryant had created Bratz while he was still under contract with Mattel. Because of this, Mattel contended that it was the rightful owner of the entire Bratz empire. It sought $2 billion in damages.
After four years of wrangling and more than $110 million in legal fees, the case finally went to trial this year. The jury found mostly for Mattel, awarding the company $100 million (only a fraction of what it sought). But the jury was not clear on whether all the Bratz dolls - there are about 40 of them now - constituted copyright infringements, or just the original four models.
So it fell to Judge Larson to examine the dolls, case by case. (Larson, who presides in Riverside, Calif., has become something of a specialist on intellectual property and fictional characters. This year, he wrote a decision restoring the property rights to Superman to the heirs of co-creator Jerry Siegel.)
At the conclusion of his survey, Larson decided that all of the Bratz dolls were derivative of the work Bryant had done while under contract with Mattel. He issued an order declaring that, as of Feb. 11, all Bratz dolls must be removed from store shelves; the remaining supply of the dolls must be turned over to Mattel; and MGA must destroy the plates, molds and matrices used to manufacture the dolls.
And just like that, Barbie's primary competitor will vanish.
It may not come to that, of course. MGA is appealing Larson's decision, and it's possible that the two companies could come to an arrangement. MGA could be allowed to continue making Bratz dolls, as long as it pays royalties to Mattel. Or Mattel could relaunch Bratz under its own aegis.
For now, though, Larson's destruction of Bratz stands as a twofold public good. First, the aggressive defense of intellectual property is one of the cornerstones of innovation. And second, the tarted-up Bratz really do look like streetwalkers.
It couldn't have happened to a nicer doll.
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Jonathan V. Last is a columnist for the Philadelphia Inquirer. Comment by clicking here.
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