Michael M. Rosen
March 26, 2018
arbie—role model for children, sex symbol for adults, plastic epistle of the American dream, and the most profitable toy in history—has weathered marriage, divorce, and countless makeovers, delighted generations of girls, enraged thousands of mothers and feminist critics, and endured depiction in print, music, theater, visual art, and performance art, but not until now have her struggles in the courtroom been fully exposed.
As new kids on the block Bratz dolls challenged Barbie’s playroom primacy, her creators at Mattel launched an aggressive, multi-pronged campaign to eradicate them and their creators, MGA Entertainment. Along the way, the companies helped, at times unwittingly and unwillingly, to elucidate the borders of employment law, copyright, and unfair competition.
In You Don’t Own Me: How Mattel v. MGA Entertainment Exposed Barbie’s Dark Side, a fascinating study of “how the quest for innovation can lead to ferociously unethical behavior, quashing creativity and innovation itself,” Orly Lobel, a professor of law at the University of San Diego and a friend and former colleague of mine, asks whether “the current hyper-protection of intellectual property promote[s] more innovation or perversely impede[s] it?”
Lobel pens a gripping tale of corporate malevolence, courtroom betrayal, and copyright hijinks. It’s a story of big business colliding with child’s play, of employers exploiting employees and those employees exacting their revenge, of morality and sexuality in the toy industry, and of greed, fame, and fortune. Lobel, a leading international researcher of the intersection between employment and intellectual property, tells the tale with verve and aplomb.
This courtroom-drama-cum-industry exposé begins in 1998 when Carter Bryant, a toy developer at Mattel charged with designing Barbie, took a hiatus from Southern California to his native Midwest, where, he claimed, several mall-going teens inspired his design for what would later become Bratz—a posse of ethnically diverse teenage girls with exaggerated features, loud clothing, and wild hair.
Initially, Bryant did little with his inspiration, returning refreshed to Mattel and toiling away in its rigid, hyper-protective corporate cocoon. But before long, during off-hours, Bryant trolled the basura bin at the facility for discarded doll parts that he fused into what Mattel would later in court describe as Frankenbratz—physical doll prototypes, his earlier drawings made flesh (or at least plastic).
After soliciting interest from MGA by showing the Frankenbratz to Isaac Larian, the company’s brash, swashbuckling head honcho, Bryant allegedly enlisted the help of moonlighting Mattel seamstresses to develop outfits and accessories during their spare time. After signing an agreement with MGA, Carter departed Mattel, seemingly on good terms.
Once introduced to market in 2001, Bratz became an immediate smash hit, toppling Barbie from her decades-long seat atop the doll kingdom’s throne. MGA’s sales ballooned in three years from $90 million to nearly $3 billion; the company sold more than 100 million dolls by 2006.
Enraged at losing its market share, Mattel did what many corporate giants do in similar circumstances: it filed suit.
Tipped anonymously to Carter’s alleged malfeasance, Mattel CEO Bob Eckert initiated a complaint against MGA in federal court in San Francisco, alleging breach of contract and copyright infringement on the part of Carter, Larian, and MGA. The case revolved largely around when exactly Carter conceived of the Bratz design and whether Mattel was entitled to whatever work he did while moonlighting, but the courtroom turned into something of a circus, with racial and sexual issues rearing their ugly heads.
In the end, the jury awarded Mattel $100 million, along with a worldwide injunction against sales of Bratz. But the idiosyncratic libertarian appellate judge Alex Kozinski, who abruptly retired from the bench last December amidst sexual harassment allegations, reversed the verdict, finding the lower court’s legal rulings credited Mattel’s rights too broadly. A retrial several years later saw vindication for MGA, which escaped Mattel’s claws and punched back with its own partially successful counterclaims for trade secret misappropriation. Lobel aptly notes that “everyone lost,” because “in the end, both companies ended up paying hundreds of millions of dollars in legal fees to pursue the deadlocked trials.”
Throughout the story, Lobel interweaves the histories of Mattel and MGA, both of which were founded as hardscrabble American family businesses by European and Iranian Jewish refugees, and both of which named and modeled their star creations after their own children.
She also documents, at times lovingly, at others witheringly, the evolution of Barbie herself from her origins in postwar Germany as Bild Lilli, a sexy comic-strip figure, to her adulation by mid-century American girls, to the feminist backlash her persistent presence generated, to the postmodern reassessment of her iconic value.
Lobel also illuminates Mattel’s long history of aggressive intellectual property litigation, including its unsuccessful 1997 suit accusing the Danish band Aqua of copyright infringement for its smash hit Barbie Girl, and its efforts to prevent various artists from depicting Barbie in, well, compromising positions. Mattel’s equally aggressive “competitive intelligence” operations come in for commensurately vigorous criticism.
But Lobel’s criticisms of the American IP regime writ large occasionally go a bit overboard.
In her view, “the legacy of building on culture, adapting, developing, and remixing it, is too often crushed by the contemporary expansion of intellectual property.” She goes so far as to suggest that IP law is hindering [progress in arts and sciences] by blocking too many new ventures and innovations.”
This paints with too broad a brush. In many industries, including computer software and hardware, it’s the larger companies that favor weakening IP rights to foster innovation (and benefit their bottom line). And from a global perspective, it’s hardly debatable that the relatively strong copyright and patent regimes in the United States have fueled Hollywood and Silicon Valley, the most powerful innovation engines in the world and among the greatest sources of creativity in human history.
Conversely, Lobel claims that “often, the more an industry benefits from copyright protection, the less likely it is to be innovative and dramatic.” But try telling that to recording studio executives, whose industry was decimated last decade after their copyrights were violated en masse by Napster and its ilk.
Lobel also contends that large corporations unfairly dominate the patent scene, arguing that, in the wake of recent legislation, “small inventors and artists are left frustrated with few rewards from or control over, their creations,” and notes the “complete absence” in the United States of “any requirement for businesses to compensate their employed inventors.” Yet that legislation also weeded out significant abuse from the patent system, which itself had inhibited innovation, and nowadays every tech company worth its salt awards financial benefits to employees who successfully file patents.
Still, Lobel concludes with a rousing defense of IP’s proper role in the U.S. economy: “developing creative communities, encouraging diverse content, and sustaining an ecosystem of ongoing innovation.” When it comes to designing the optimal intellectual property system, it may not be Barbie’s world after all.