Barbie, Bratz, and a lesson about works made for hire

When this patent librarian was a kid, Barbie dolls pretty much ruled the roost when it came to fashion dolls. While HotWheels had to compete with Matchbox, and Gobots wooed a loyal following away from Transformers, there was really no substitute for Barbie dolls in the imaginations and toy boxes of children.

More recently, though, Barbie has had to deal with some pretty fierce competition from a line of dolls known as Bratz. Launched in 2001, the Bratz line of dolls, with their fashion-forward outfits and grotesquely large heads, wowed their target audience and proved a major success for their manufacturer, a company called MGA Entertainment.

Bratz and Barbie have recently made headlines because of a lawsuit alleging that the original drawings from which Bratz came and the Bratz name itself actually belonged to Mattel, the company that makes Barbie. (And you were wondering what all of this had to do with intellectual property.) In July, a jury ruled that the creator of Bratz, Carter Bryant, had come up with the concept while working for Mattel and that MGA was infringing on their copyright by producing the dolls. A few days ago, Mattel was awarded $100 million in damages; as of yet, it is still unclear whether MGA will be able to continue to produce the Bratz line.

Determining authorship can be difficult in the realm of copyright, and cases like this one illustrate an important concept in figuring out who owns what. In regards to copyright, authorship refers to the creator of a given work. At its simplest, the "author" of a work is a person who put pen to paper, fingers to guitar, eye to lens, etc.

Once we get into the world of businesses, however, things get a little trickier. Intuition would tell us that Carter Bryant, the person who drew and named the dolls, would be the author and, thus, the owner of the copyright. The problem is that at the time that Bryant created the drawings and name, he was working for Mattel as a designer. Because he was under contract to design dolls for Mattel, the designs that he came up with during his employment with Mattel would be considered the property of Mattel.

This aspect of authorship is known (here comes the jargon) as a work made for hire. The idea is that if you create something during the course of employment or are contracted by an employer to do a certain type of work, the work that you create during that employment becomes the property of the employer. This blog, for instance, is part of my work as a librarian. Because I create the blog while I'm on the clock, the copyright belongs not to me but to my employer, the San Francisco Public Library. In the case of a blog made for education use by a non-profit library, the copyright isn't really valuable. But for Mattel, the Bratz copyright has proven valuable both because of the loss of revenue caused by the competition with Bratz and because of the potential revenue that the dolls could have made for Mattel had they been the firm to market them.

As a product designer under contract, Carter Bryant most likely didn't punch in and punch out like people performing other types of work would do, so Mattel probably included in his contract a statement of ownership of his doll designs during the course of his employment. Indeed, only $10 million of the $100 million award was for copyright infringement; the rest was for breach of contract.

Like just about every legal issue related to intellectual property, the rules governing work made for hire aren't always concrete. For an authoritative handling of work made for hire, check out the Copyright Office's Circular 9, which covers how to determine if a work is in fact made for hire.