Bratz Trade Secret Litigation $309 million



Bratz Dolls



As an update to the Bratz litigation, the Court has ordered Mattel, Inc. to pay MGA Entertainment $309 million.  In one of our prior posts which can be read here, Mattel initially sued MGA for trade secret and copyright infringement over the popular Bratz dolls, and received a judgment against MGA in 2008.  However, in a reversal, the Court then issued a judgment against Mattel finding them liable for trade secret misappropriation.  Now, the Court has finalized its judgment as follows: $85 million, plus another $85 million in punitive damages for trade secrets misappropriation.   Plus another whopping $137 million was awarded for legal fees, totaling close to $309 million against Mattel.  Ouch!  However, no word yet as to Mattel's appeal.

Hangover Copyright Infringement of Tyson Tattoo?

The Hangover: Part II, set to hit theaters this Thursday, will not be hampered by a copyright infringement lawsuit, at least for now. The tattoo on Mike Tyson’s face was done by tattoo artist S. Victor Whitmill, and Whitmill’s work is distinct enough that he doesn’t want anyone copying it. That includes Ed Helms’ character, in the second installment of the Hangover saga. The problem is that Helms’ tattoo wasn’t done by Whitmill, and he claims Warner Bros. took unlawful liberty in reproducing his distinct style on someone else’s face. Someone else’s high-profile face, that is. The tattoo factors highly in the marketing campaign for the film.

According to the lawsuit: “Warner Bros. copied Mr. Whitmill's Original Tattoo and placed it on the face of another actor ... This unauthorized exploitation of the Original Tattoo constitutes copyright infringement.”

Whitman sued Warner Bros. for copyright infringement (Case No. 4:11-cv-00752-CDP, Missouri Eastern District Court), and wanted an injunction to stop the release of the movie. Fortunately for fans, a judge denied the injunction today in federal court. However, the suit was not thrown out, and it will be interesting to see how it plays out.

Bratz's Copyright Infringement Trial Comes to an End...For Now

After more than seven years, 70 witnesses, and thousands of exhibits, a verdict has been reached in the roller-coaster “Bratz” dolls trial. The trial (Bryant v. Mattel, 04-09049, U.S. District Court, Central District of California) pitted toy making giants Mattell, Inc. against Van Nuys based MGA Entertainment, Inc. over the rights to the wildly popular line of Bratz dolls. Mattell originally filed its lawsuit accusing MGA of stealing trade secrets and copyright infringement seeking. MGA began manufacturing the dolls after toy designer and former Mattell employee Carter Bryant sold them the idea in 2000. Mattell claimed that Bryant thought of the idea for Bratz during his employment with Mattell, therefore claiming that Mattell owned the intellectual property rights to the doll.

The verdict has gone back and forth – a 2008 Jury awarded Mattell $100 million. But that verdict was overturned later in a federal appeals court. The current decision, reached in Santa Ana Thursday, instead awarded MGA $88.4 million dollars, and found Mattell guilty of stealing MGA’s trade secrets. According to the verdict, Mattell employees used fake IDs to gain entrance to MGA showrooms. Although this verdict is taken as a victory for MGA, it is likely that Mattell will appeal the court’s decision. Issac Larian, MGA's CEO estimates they spent nearly $170 million on legal fees, while Mattel's legal expenses where closer to $400 million.

Playboy Sues Drake for Copyright Infringement

Hip hop artist Aubrey Drake Graham, aka “Drake” had a hit last year with the song “Best I Ever Had.” But, like many other commercially-successful songs these days, “Best I Ever Had” sampled a previous song. The original song, called “Fallin in Love,” is by 1970’s soft rockers Hamilton, Joe Frank & Reynolds. And interestingly, it’s Playboy Enterprises, Inc. that owns the copyright to “Fallin In Love.” Apparently Drake didn’t get permission to use the song, which for samplers isn’t always necessary. But Playboy just filed a copyright infringement lawsuit against Drake.

The case is 2:2010-cv-04750

A major question is going to be whether the song is a copy for commercial gain, or an artistic interpretation with a different and new meaning.

Foo Fighters Copyright Infringement In Australia

The Foo Fighters recently sued an Australian advertising company for Copyright Infringement for using a re-recorded version of “Learn To Fly” in one of their TV commercials. The lawsuit was filed in Australian federal court last week, and alleges that the RE/MAX company made commercials that "incorporate a musical composition... that reproduces a substantial part" of the Foo Fighters' hit.

Nicholas Thiele, regional director of RE/MAX, told TheAge.com.au, ''It's certainly not the position of this company to intentionally infringe on anyone's copyright. We've got very strong trademark and copyright issues regarding our own brand that we feel are very important.''

The band became aware of the commercials from a message posted on their internet fan bulletin board last week.

Copyright Litigation May Commence Without First Obtaining Registration

In order to commence a copyright infringement action in federal court, under 17 U.S.C. § 411(a), makes registration of a copyright a prerequisite prior to bringing an infringement suit. But in a May 2010, Court of Appeals for the Ninth Circuit case, Cosmetic Ideas, Inc. v. IAC/Interactive Corp., has held otherwise. The case was an appeal from a U.S. District Court, California Central District case in which Cosmetic Ideas, Inc. sued the Home Shopping Network for copyright infringement involving a necklace. Cosmetic Ideas submitted a copyright application for a necklace, and then sued HSN before getting an official registration from the U.S. Copyright Office.

Initially the case was dismissed for lack of subject matter jurisdiction because of the lack of a registered copyright. The Ninth Circuit court then later overturned that decision. The 9th Circuit court found that a copyright is actually considered registered once the application has been submitted and stated "that receipt by the Copyright Office of a complete application satisfies the registration requirement of § 411(a)."

Their reasoning was that Congress’s purpose for copyrights was to protect intellectual property in exactly this scenario. Cosmetic Ideas may have had to wait several months before their copyright was officially registered. And theoretically, during that time, nothing could be done to stop copyright infringers. The issue of speed of information in the post-internet world is likely to affect similar statutes. And this is probably not the last time we’ll hear about this specific case.

Jessica Seinfeld Copyright Infringement Battle Over Cookbook

Last week, a federal appeals court upheld the previous decision of a lower court in the Jessica Seinfeld cookbook case. Jessica (Jerry Seinfeld’s wife) was sued for both trademark and copyright infringement by Missy Chase Lapine, author of “The Sneaky Chef: Simple Strategies for Hiding Healthy Foods in Kids’ Favorite Meals.” Jessica’s book is titled “Deceptively Delicious: Simple Secrets to Get Your Kids Eating Good Food.” See the original lower district's complaint here. It does seem a bit close for comfort, but two judges have now ruled that Jessica’s book is not a copycat.

According to Judges Reena Raggi and Peter W. Hall of the Second U.S. Circuit Court of Appeals in Manhattan, “stockpiling vegetable purees for covert use in children’s food is an idea that cannot be copyrighted.” Conceptual ideas like that cannot be protected by copyright law. Seinfeld's intellectual property attorney's stated "countless prior works utilized this very same unprotectable idea," including a 1971 book."

Lapine’s book was published four months previous to Seinfeld’s, and apparently, some publishers were looking at the books around the same time. It seems pretty unlikely that Jessica Seinfeld would have had enough time to plagiarize, since both books were published around the same time.

On a side note – a slander case is still pending for Jerry Seinfeld’s jokes (when he said his wife is accused of "vegetable plagiarism") about the suit and Missy Lapine on The Tonight Show.

Craigslist awarded $1.3 million judgment in copyright infringement case

Last week, Craigslist sent a clear message to sites offering third-party posting software. Powerpostings.com, owned by one Igor Gasov, had been offering customers the ability to post (including multiple postings) and manage ads on Craigslist. Craigslist sued them for copyright infringement, referencing the Digital Millennium Copyright Act, the Computer Fraud and Abuse Act, and trademark law. The defendants didn’t contest, and Craigslist was awarded a $1.3 million judgment.

In the past, other companies have offered Craigslist posting software, but Powerpostings took it too far. They also offered listing agents, who would post ads for customers, and they used false email addresses on Craigslist. No doubt there were several violations of Craigslist’s terms of use, in addition to the alleged trademark and copyright violations. Because Powerpostings didn’t appear in court, Craigslist didn’t have to prove anything. Craislist would have had to prove they registered parts of their Web site, and that Powerpostings copied those parts, for copyright infringement to have taken place. But considering all the allegations against them, it was probably a smart move for Powerpostings to accept a lesson learned the hard way.

Green Day Copyright Infringement of Scream Art

Immediately following a Green Day concert in LA last August, local artist Dereck Seltzer began receiving calls and emails, alerting him that his ‘Scream Icon’ art was being used as the backdrop to the show. Seltzer was surprised, since he had no previous contact with the band. Scream Icon was copyrighted by Seltzer in 2003. When he approached the band, complaining that they had used the art without regard for the registered copyright, they offered him concert tickets in settlement. Green Day continues to use artwork in promotional materials and backdrops.

Seltzer filed a complaint in the Central District of Los Angeles and is suing Green Day for Copyright Infringement, and unfair competition and false designation under Section 43(a) of the Lanham Act. However, Green Day’s attorney, Don Passman claims that "Green Day received Mr. Seltzer's image from a responsible company and was unaware that there could be any copyright or other issues."

It’s hard to be too careful about usage of graphics and artwork, and it’s important to know the actual source. Although it may seem harmless, much of it is legitimately copyrighted material. Even more important to be careful when dozens of sold out stadiums will be viewing the art in question.