Link Sausages From the Valley of the Dolls

Today's late platter was waiting for a couple of anticipated items...

• Fans of Bratz dolls can breathe easier — until the (next) inevitable appeal, that is. In what the LATimes calls a "stunning decision" (probably because the paper has previously demonstrated not just no, but negative, knowledge of intellectual property and unfair competition law), an Orange County jury found for MGA and against Mattel on virtually every important aspect of the Bratz v. Barbie dispute. Frankly, this is an entirely unsurprising result after the most recent Ninth Circuit decision in this matter.

  This particular case has several frustrating aspects. Leaving aside the ethical/moral dimension of the particular objectifying toys at issue — a problem on which there really can't be much, if any, agreement — this case represented an opportunity for courts to definitively rule on the propriety of "spare time creations belong to the employer" employment agreements/contracts/employee handbooks, as the Ninth Circuit found too many loopholes in Mattel's version; on whether the scenes à faire doctrine from the 1909 Act survives as an independent consideration for copyrightability under the 1976 Act, or whether (as I believe) is it properly considered as one of the § 107 fair-use factors and not an independent determination; and whether the appalling amount of money represented in both the toy lines themselves and the legal fees could, and should, have been allocated better to the benefit of the various shareholders in the respective corporations. As Mattel has already been told once when it overreached to "protect" Barbie's anatomically incorrect image, "The parties are advised to chill." Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 908 (9th Cir. 2002) (holding that the song "Barbie Girl" does not infringe Mattel's rights).

  Although explaining why is well beyond the scope of this blawg, this matter also has some interesting implications for Happy Days (may that misbegotten load of dreck be quickly and permanently forgotten). Let's just say that CBS sympathizes with Mattel's side in this particular dispute and leave it at that, ok?

• Instead of female dolls, we could just worry about effeminate memorabilia. Yee ha. I wonder if the chimpanzee is a named party? On second thought, I really don't want to know.
• Transitioning slightly to another aspect of fair use, one finds another bit of remarkably ignorant side commentary in the LA Times concerning the Weird Al/Lady Gaga brouhaha (or, rather, the dispute between Weird Al and Lady Gaga's overcontrolling, overambitious manager, as it turns out). The LAT's mistake is this statement:

  Yankovic didn't actually need Gaga's permission, but he extends the mutually beneficial proposition as a courtesy — his parodies have always fallen under "fair use" in matters of copyright law.

  (typography corrected) No, no, and yet again no. On the one hand, Weird Al's work almost always qualifies as fair use. However, "parody" has been a relevant consideration only since 1994, when the Supreme Court said that a parody could constitute fair use (not necessarily is fair use), and there are several Weird Al songs that — however much I love them — fall outside the bizarro definition of "parody" that holds in US copyright law, so they don't even have that much protection, although they should. And, amusingly enough, one of them just popped up at random on the playlist...

  Of course, Lady Gaga has other legal problems right now, so jettisoning this one makes good strategic sense, too. And how often can one say that about anything in the entertainment industry?