Friday, September 23, 2011

Revenge of the Bratz

I remember reading a few years back that the Mattel Toy Company has obtained an injunction against the makers of the Bratz dolls because of their alleged similarity to the Barbie Doll. I was confused-on the surface the two dolls are not at all similar. The case, Mattel v. MGA was premised upon Mattel’s argument that the Bratz dolls infringed upon Mattel’s copyrights’ among other claims. Ultimately, Mattel’s argument was based upon the mistaken premise that one can assert a copyright in a mere idea or concept. Remember that this is the same company which unsuccessfully sued a group for recording the song “Barbie Girl”.

The kicker to the Bratz case is that in prevailing, the Bratz manufacturer was awarded a judgment for its costs and attorneys fees in the amount of $137,000,000 (yes, one hundred thirty seven million.I triple checked it.) Section 505 of the Copyright Act provides that the prevailing party in a copyright infringement case is entitled to petition the court for an award of its costs and attorneys fees. This point was famously demonstrated in the case Fantasy v. Fogerty, wherein John Fogerty recovered his attorney’s fees in defending himself against his former publisher’s erroneous claim that he had somehow infringed his own work.

This is the reason one has to be dead certain of their legal position before instituting a copyright infringement case and it is, I believe, one of the main deterrents to more frivolous copyright lawsuits being filed. Still, if you can afford to pay $137 million in legal fees, I guess deterrence is not really an issue.

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