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.

Manny Garcia gives up his claim that he, not the Associated Press, owns the copyright in the photo he shot and that Shepard Fairey used as the source of the image in the Obama Hope poster.

Manny Garcia has dropped all the claims in the lawsuit over whether Shepard Fairey’s Obama Hope poster infringed the copyright in the photo Garcia had taken and that Fairey had used as the source of the image. The Stipulation of Discontinuance with Prejudice filed in the case is embedded below.

What this means is that Garcia has given up his claim that he rather than the Associated Press owns the copyright in the photo. The Associated Press claims that it owns the copyright in the photo on the grounds that Garcia shot it as a “work for hire.” The fact that the claims by Garcia and against him have been discontinued by agreement of the parties “with prejudice” means that Garcia has given up any right to re-assert those claims in the future. The agreement constitutes a final, binding determination that the copyright in the photo belongs to the Associated Press.

It does nothing, however, to illuminate the outcome of the claim by the Associated Press that Fairey’s poster infringes the copyright in the photo. But it does illuminate those familiar with the history of copyright know — the enlargement and enforcement of copyright has always been more about protecting the interests of publishers than it has been of promoting artistic creation:

There is one group of people not shocked by the record industry’s policy of suing randomly chosen file sharers: historians of copyright. They already know what everyone else is slowly finding out: that copyright was never primarily about paying artists for their work, and that far from being designed to support creators, copyright was designed by and for distributors — that is, publishers . . .