Bratz, Mattel, and Work for Hire: does copyright really protect the artist?

I often wonder if artists who cry loudly about the threat posed to creativity by insufficient “protection” of copyright are really useful idiots. That copyright is primarily about protecting the artist is questionable, not least because of the “work for hire” doctrine. In short, as the Stanford Copyright & Fair Use site puts it:

If a work is created by an employee in the course of his or her employment, the employer owns the copyright.

The recent victory by MGA Entertainment over Mattel in the fight over the ownership of the copyright in Bratz dolls highlights the difficulties creators might face in connection with the work for hire doctrine. In part, the case turned on the distinction between an “idea,” which cannot be copyrighted, and its particular expression, which can. Carter Bryant was an employee of Mattel at the time he first developed and sold to MGA the idea for the Bratz dolls. As Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit explained in the 2010 decision overturning an earlier jury verdict in favor of Mattel, that idea in and of itself could not be claimed by Mattel merely because Bryant was its employee at the time:

Assuming that Mattel owns Bryant’s preliminary drawings and sculpt, its copyrights in the works would cover only its particular expression of the bratty-doll idea, not the idea itself. See Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir. 1971). Otherwise, the first person to express any idea would have a monopoly over it. Degas can’t prohibit other artists from painting ballerinas, and Charlaine Harris can’t stop Stephenie Meyer from publishing Twilight just because Sookie came first. Similarly, MGA was free to look at Bryant’s sketches and say, “Good idea! We want to create bratty dolls too.”

But, as Jonathan Bailey at Plagiarism Today explains, Mattel’s claim was based in part on Carter’s employment contract, which stated that

I agree to communicate to the Company as promptly and fully as practicable all inventions (as defined below) conceived or reduced to practice by me (alone or jointly by others) at any time during my employment by the Company. I hereby assign to the Company … all my right, title and interest in such inventions, and all my right, title and interest in any patents, copyrights, patent applications or copyright applications based thereon. (emphasis added)

The contract further specified that “the term `inventions’ includes, but is not limited to, all discoveries, improvements, processes, developments, designs, knowhow, data computer programs and formulae, whether patentable or unpatentable.”

Mattel argued that the contract’s definition of “inventions” therefore gave it rights to any “ideas” Carter developed during the time of his employment. The 9th Circuit “conclude[d] that the agreement could be interpreted to cover ideas, but the text doesn’t compel that reading.” (emphasis added) It therefore left to the jury in the new trial to decide what in fact Carter and Mattel had intended the contract to cover. Plainly, the jury did not buy Mattel’s argument.

As Bailey points out, the issues involved in the case have very meaningful implications for all creators:

Generally, any work you create for an employer as part of your job becomes copyright of the employer, not you. However, almost instantly there becomes issues as to what is and is not part of your employment, especially when you do creative work on the side that is similar to the work you do for a living.

If you are an artist and do artistic work for your employer, when is your creative work done in the course of employment and when is it not? That is a difficult question in and of itself, but an artist must also pay close attention to his or her contract. While Carter and MGA prevailed over Mattel, your contract, might give your employer ownership over your very ideas if it states so clearly enough.

Scrabble v. Scrabulous redux

There are many examples of what I wrote about yesterday — lawyers prosecuting a lawsuit on behalf of a client who in fact would be better off not suing even though his claim might be a legitimate one — but there are few better than the one I wrote about here in November: Hasbro’s lawsuit against the creators on Facebook of Scrabulous, brought because, in the words of Hasbro’s lawyer, “Hasbro has an obligation to act appropriately against infringement of our intellectual properties.”  As Eric Eldon wrote yesterday in Venture Beat, “Hasbro owns the Scrabble copyright for the U.S. and Canada and forced Scrabulous to go offline in those countries at the end of July; Mattel owns the rights to Scrabble everywhere else and followed in Hasbro’s footsteps a month later.”  The problem is that now Hasbro’s product on Facebook and the product newly produced by the creators of Scrabulous are splitting a smaller audience on Facebook than Scrabulous alone had on Facebook even as Facebook’s participation climbs precipitiously.  Eldon suggests it would’ve been much wiser for Hasbro and Mattel to have entered into a partnership with the creators of Scrabulous to produce a Facebook-based Scrabble game.  Instead, the lawyers took over, and everyone is worse off:

This is exactly how not to build a Facebook app. Facebook is designed to help people share information with those they care about – geography-based licenses from another era have just gotten in the way of making something people want to use.