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Ninth Circuit Spanks Spoiled Brats
February 22, 2010

They may be trashy role models for impressionable young girls, but Bratz dolls are not copyright infringers.

The Court of Appeals for the Ninth Circuit confirmed a lower court's finding that the maker of the popular Bratz dolls did not infringe the copyright or trade dress rights in a line of T-shirts called Spoiled Brats. In particular, the plaintiff, Art Attacks Ink, failed to show that Bratz maker MGA Entertainment had access to the Spoiled Brats products prior to introducing the Bratz dolls. Furthermore, Art Attacks failed to establish that the Spoiled Brats line had acquired secondary meaning such that it was entitled to trade dress protection.

The court also addressed a procedural issue, finding that MGA's failure to timely renew its JMOL motions under Rule 50(b) did not preclude the court from ruling on those motions because the defendant waived its objection by failing to raise it at the district court level.

More details of Art Attacks Ink v. MGA Entertainment after the jump.

Art Attacks is a small company that sells custom made T-shirts including a line of T-shirts called "Spoiled Brats" that features cartoonish, predominantly female characters with oversized eyes, disproportionately large heads and feet, makeup, and bare midriffs. Art Attacks sold about 2,000 Spoiled Brats T-shirts per year between 1993 and 2001, when MGA began selling its Bratz dolls. Art Attacks never advertised in broadcast or print media. It did however have a web site which included images of some of the T-shirt designs that included the Spoiled Brats characters. However, this was during the early days of the internet, and the web site took two minutes to load. Furthermore, there were no meta tags such that the site could be found via an internet search engine. Art Attacks did display the Spoiled Brats images at several Wal-Marts and at numerous county fairs in California.

At trial, the jury found no trademark infringement, but failed to reach a verdict on the copyright and trade dress infringement claims. The district judge dismissed the jury on Friday, May 11, and entered an order declaring mistrial on Monday, May 14. On the advice of the judge's law clerk, MGA mistakenly believed it had ten days after the declaration of mistrial, rather than ten days after the jury was dismissed, to file its Rule 50(b) motion renewing its earlier motions for finding of no copyright infringement or trade dress infringement as a matter of law. The district court then granted MGA's motions for judgments of no copyright or trade dress infringement. Art Attacks did not object to the timeliness of MGA's Rule 50(b) motion at the district court level.

At the Ninth Circuit, Art Attacks argued that Federal Rule of Civil Procedure 6(b)(2) , which forbids courts from extending the filing period set out in Rule 50(b), makes Rule 50(b) jurisdictional, and therefore incapable of being waived or forfeited. The Ninth Circuit followed several other circuits in ruling that Rule 50(b)'s filing deadline is non-jurisdictional, and therefore can be waived or forfeited. It further found that Art Attacks' failure to raise the objection at the district court level forfeited the right to raise that objection.

In the absence of direct evidence of copying, proof of copyright infringement requires a plaintiff to show a reasonable chance that an alleged infringer had access to view the protected works. Such access can be established by circumstantial evidence showing either: (1) a chain of events linking the plaintiff's work and the defendant's access, or (2) the plaintiff's work has been widely disseminated.

Art Attacks did show that a Bratz representative attended a Los Angeles Country Fair sometime between 1995 and 2005. Art Attacks displayed its Spoiled Brats designs at that fair during the years 1998 through 2001. Therefore, there was some chance that MGA had access to designs. However, the Ninth Circuit upheld the district court's finding that this was a just a bare possibility and was not sufficient to create a "chain of events" that demonstrated that MGA had access to the material.

The Ninth Circuit also affirmed the district court's finding that Art Attacks did not prove access by demonstrating wide dissemination of its protected work. In particular it found that the Art Attacks booths at Wal-Marts and county fairs, the 2,000 T-shirts per year that acted as walking billboards, and the rudimentary internet site were all insufficient to establish wide dissemination.

The Ninth Circuit also affirmed the district court's finding that Art Attacks failed to present sufficient evidence to show that its Spoiled Brats designs had acquired secondary meaning. Art Attacks presented only a single customer who said that she would associate the Spoiled Brats image with Art Attacks. Furthermore, it failed to introduce any evidence to show that its use of the designs was exclusive. Art Attacks only evidence of actual confusion came from testimony of Art Attacks employees or close personal friends of the founder. The Ninth Circuit found that the district court was correct in giving such evidence little probative value.

To read the full decision in Art Attacks Ink v. MGA Entertainment, click here .

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