$100 million awarded for Bratz/Barbie paternity suit

Following on from my earlier post about the Bratz / Barbie litigation, a US jury has awarded Mattel $100 million for the infringement of its rights, finding that Bratz dolls were wrongfully created using intellectual property taken by former Mattel employees.

Mattel had asked for $1.8 billion, $1 billion in Bratz profits and interest, and $800 million related to causing a breach of contract.

MGA, the manufacturer of Bratz, intends to appeal.

Will Bratz dolls continue to be manufactured? Nobody know yet, negotiations are continuing.

Image credit: Zoey101@HSM**!!

Star Wars – whose victory is it?

Lucasfilm Ltd, the makers of Star Wars, had a victory in a copyright case against Andrew Ainsworth, who sells stormtrooper helmets online.

Sort of.

Ainsworth created the Stormtrooper helmets for the first “Star Wars” movie in 1977. He claimed he owned copyright in the design. Lucasfilm disagreed and sued him for copyright infringement, winning a $20 million judgment in a California Court in 2006.

But a UK High Court judge said Ainsworth’s U.S. sales, £25,000 to £30,000 ($50,000 to US$60,000), were not significant enough to bring him under U.S. jurisdiction. So he refused to order Ainsworth to pay the $20 million judgment.

Ainsworth is claiming victory, saying he can continue selling Stormtrooper helmets anywhere except the USA.

Moral of the story – if you hire someone to create anything for you, you can avoid making the same mistake as Lucasfilm simply by coming to an agreement over ownership of copyright. And it’s best to do this at the time of creation, not 30 years later when millions of dollars at stake.

Sexyland and Superman – but the complaint is coming from an unexpected source

Adult superstore Sexyland is under fire for using a Superman style figure for its Father’s Day billboard advertisement.

The cartoon superhero has “Sexy Man” across his chest and the tagline “Super ideas for Father’s Day”.

Australian Family Association president Angela Conway told the Herald Sun “Given they are using the superman image reinforces that they are targeting kids or, at the very least, are recklessly indifferent to the impact the signs would be having on parents who try to mediate what their kids are exposed to. These type of sexualised messages should not be allowed in the public domain.”

Interestingly, DC Comics, the owners of the Superman film rights haven’t complained, although they are no doubt protective guardians of the very valuable rights (see previous blog entry on the original sale of Superman rights for $130).

They could very easily say that the ad is abusing their rights.

But it’s a catch-22. If they complain, they could draw unnecessary attention (and give extra free publicity) to an adult products retailer with whom they would not want to be associated.

It’s always worth thinking twice before unleashing the lawyers.

Hari Puttar – not a spelling mistake, but Warner Bros are suing!

Warner Bros, producers of blockbuster Harry Potter movies, are suing the makers of a Bollywood children’s film called Hari Puttar – A Comedy of Terrors.

“The movie has nothing to do with Harry Potter,” protested the 11 year old star of the film, Zain Khan.

In the film, a 10 year old boy nicknamed Hari Puttar moves to Britain and recovers a stolen top secret computer chip originally developed by his father for the Indian Army.

A key difference is that unlike Harry Potter, Hari has no magic powers and is certainly no wizard.

Not that Warner Bros care. To them, the title itself is too close.

Titles are not protected by copyright law. We’re not sure whether they’re suing under trade marks law (Warner Bros have several Harry Potter trade marks in Australia, presumably they have registered the title in India too), or passing off. Either way, the Harry Potter series has a formidable reputation so it should be an interesting case.

Victoria’s Thomas puffs his last

The Victorian Goldfields Railway has fallen foul of copyright law, showing once again that copying can get you into trouble regardless of whether you do so for commercial gain.

For five years the VGR had operated a Friends of Thomas the Tank Engine attraction, based on the popular children’s characters and run between Maldon and Castlemaine during the school holidays. Their trains had Thomas-style faces and they even had their own “Fat Controller” in top hat and tails.

VGR is a non-profit operation staffed by around 80 volunteers, whose only motivation is to provide holiday fun for children. However, that was never going to pass muster with entertainment conglomerate HIT International, which owns the Thomas and Friends brand along with those of other popular children’s characters such as Bob the Builder and Barney and Friends.

Though the VGR operation had been tolerated until now, HIT has begun developing Thomas theme parks in the UK and US and is clearly not prepared to allow an unauthorized version.

Are Bratz and Barbie sisters?

Did Bratz originate from ideas to update Barbie?

Mattel, manufacturers of Barbie dolls, certainly thought so. They sued MGA Entertainment, manufacturers of Bratz, for stealing the idea for the popular Bratz doll by hiring former Mattel employee Carter Bryant to access confidential information.

Mattel claimed that it had sketches of the Bratz dolls produced by Bryant in 1999 before he left Mattel for MGA. Mattel also claimed that Bryant had been giving ideas for Bratz to MGA while he was still working for Mattel, breaching intellectual property rights.

The court agreed with Mattel. As a general rule, product ideas created by employees are generally owned by their employer (I’ll write more about how this works and what employees need to know in future blog posts – subscribe if you want to find out).

But there’s a complication – MGA is now asking the court to declare a mistrial because a juror made racist slurs about its Iranian immigrant CEO Isaac Larian. The juror, who was dismissed for the slurs, said Iranians were “stubborn, rude” and “thieves” who have “stolen other person’s ideas.”

Did Seven steal Apple’s idea for the iPod ad? Judge for yourself

Seven’s television advertisement for its TiVo digital TV recorder (click to see ad) looks very similar to Apple’s iPod advertisement (click to see ad).

The Apple ad features album cover art building up into a city before being sucked into an iPod. The TiVo ad features a similar animation, replacing cover art with TV screenshots.

The Sydney Morning Herald reported that Seven spokesman Simon Francis said: “Anyone knows there’s no copyright in an idea, and the TiVo television commercial is one of many out there at the moment expressing the same idea – worlds which are opened up to consumers by new technology and the information and entertainment which unfolds for them when they use that new technology.” He also said it was an independent creation by Seven’s inhouse team.

Is Francis correct? Does copyright law really allow the kind of similarity?

True, there is no copyright in an idea (worlds opening up and unfolding), but copyright protects the material expression of that idea (arguably, the use of imagery, whether cover art or screenshots, building into a city and then being sucked into a product). Not looking good for Seven.

What about the “independent creation” claim? If true, there is no infringement, because copyright only applies if there is copying, not coincidences. But the circumstances look very suspicious, especially where the original ad is a high profile one from such a well known company.

If Apple were to sue, I’d put my money on them.

Why a Bob Marley fan is suing Bob Marley’s estate

A Bob Marley fan is suing the estate of the late reggae superstar, as well as music and clothing companies run by his family, for copyright infringement, ironically involving images of Marley.

Massachusetts artist Jurek Zamoyski, who grew up in Communist Poland loving Marley for his songs of freedom and justice for the oppressed, claims Fifty-Six Hope Road Music Ltd, Bob Marley Music and Zion Rootswear are making unauthorized use of three of his copyright portraits of Marley – “Rasta Dreads”, “Lion Zion” (pictured left, together with t-shirt inset) and “Kaya Man” – on T-shirts and other items being sold worldwide.

Zamoyski, who has also done designs for the Grateful Dead, maintains his works were licensed for use through his licensing firm, Jurek International Graphics, in the mid-1990s, but authorization was revoked when the company folded in 1999. However, the Marley companies have continued to use the designs, Zamoyski says, even though he hasn’t earned royalties from them since 1999.

Apparel bearing his designs continues to be available on the Zion Rootswear website.

Under copyright law, the subject of a painting (Marley) does not normally own any copyright – only the artist (Zamoyski) does.

Louis Vuitton loses case over Murakami knockoff

Louis Vuitton has just lost a 4 year court case against Dooney & Bourke, involving their It Bag (pictured), which LV alleged looked too much like their popular Murakami design.

The LV Murakami design was introduced in 2002 and generated sales of $145 million by 2006. D&B launched their “It Bag” in 2003, and it has generated sales of more than $100 million. Which is a good reason for LV’s anxiety.

But the judge Shira Scheindlin said:

“[Louis Vuitton] offered no proof that the similarities in the marks is likely to confuse ordinary consumers, whether it is at the point of initial interest, point-of-sale, or post-sale. Even the testimony of Louis Vuitton’s director of intellectual property suggests Louis Vuitton’s infringement claim is not necessarily premised on a likelihood of confusion between its products and those of [the] defendant, but rather Louis Vuitton’s distaste at being associated with the ‘It Bags.”

It shows the limits of owning a ‘look’ – which is hard to protect – as opposed to specific designs.

This is at least the second case involving the Murakami design this year. 

In January, LV sued artist Nadia Plesner, who created a t-shirt and poster of a starving child holding a Murakami bag and chihuahua to protest the media attention given to Paris Hilton while children in Darfur are starving.

LV was not impressed, and took action to stop the sale of the items.

The case is ongoing.

IP laws are not really set up for brand owners to control usage of their designs for political purposes.

(Dooney & Bourke story via uk.fashion.popsugar.com)

Borat make benefit from copyright infringement?

As well as giving us the “mankini” and expressions like “sexy time”, Borat also seems to have a gift for provoking lawsuits. 

A US man is suing 20th Century Fox, the producer of Sacha Baron Cohen’s 2006 spoof, Borat: Cultural Learnings Of America For Make Benefit Glorious Nation of Kazakhstan, and Christian singer Timothy Spell, claiming Spell performs a song of his in the movie without permission.

Frank O’Brien claims Spell falsely represented that he controlled copyright and received US$25,000 for the use of the song, Nothin’ Like Being Able, adding that he would never have allowed its use because the movie lampooned his Christian beliefs.

To prove breach of copyright, O’Brien must demonstrate that he either composed the song and retained copyright, or that he legally acquired copyright from someone else.

Just last month, another man failed in his attempt to sue over unauthorized use of his image in the trailer for the movie and in a 13-second clip in which he shouts “go away” and runs as Borat tries to hug him in a New York street. The judge ruled that under US law the clip was “newsworthy” and not illegal. Two students and a driving instructor from the US and a group of Romanian villagers have filed similar suits.