A (3:38)

The fights are getting bigger and more frequent. The structure of market competition is changing everywhere. The value that companies bring into markets is much more reliant on innovation, on brands, on the human capital, the talent that they employ. And that's why we see in every industry a struggle to recruit the best talent to poach from others, but also to keep whoever is really good employees, to keep them from then competing from them, moving on to a competitor or going on their own and creating new things that would compete with the old brand. It's just become a practice of employers and especially of large corporations that have these very standard contracts to try to fence all of the ideas, the innovation, the skills and experience of whoever they hire through these really generic clauses where you're signing away, basically your freedom to move on. And we've actually been seeing this also in right now with the MeToo movement where it's just very standard that Companies today demand. NDAs demand non disparagement clauses, and with that also they demand non competes and innovation assignment agreements that are really broad.

B (5:13)

So I promised we'd talk about Icy Cool Barbie versus Sassy Brats. But before we do that, I have to ask you to just talk a little bit Orly, because it's so crazy about the history of Barbie. She's older than she looks, right?

A (5:29)

She's ageless. She's cool and plastic and maddeningly perfect. She has a secret history, which I uncover in the book. She is not all American as she was presented and introduced by Mattel in 1959. She actually was reincarnated from German basically adult toy slash prostitute cartoon. That was this girl woman who traded her sexuality for money with adult German men.

B (6:12)

Nice. I guess I didn't think about this until I started reading. But of course, giving tween girls or preteen girls a Barbie is entirely a different thing than giving them a baby doll, which is what everything else was, right? When Barbie gets invent, that was a.

A (6:29)

Huge innovation in the toy industry. And it was Ruth Handler who claims the invention. She was the founder of Mattel she thought girls want to play with what they can see themselves turning into. And mothers might buy this overly sexual doll for their girls if they can be convinced that it will actually help them be career women. Think about fashion. So let's do away with just, you know, giving girls babies to cradle.

B (7:02)

Your story really begins, or this litigation begins with a gentleman by the name of Carter Bryant who is like designing dresses for Barbies at Mattel. And he's feeling stifled and he's got all these ideas. Take us through how this becomes really the big intellectual property toy smackdown that it grows into.

A (7:26)

Right. So the story begins in our current time, basically where Barbie has been dominating the industry for a long time, really 90% share of the doll market. And we have, as you describe, Carter Bryant, shy, creative, gay, very passionate designer for Mattel. Not so happy about being at Mattel, but he works for the Barbie line and he feels pretty much disillusioned by the ability to create new ideas at Mattel. He never gets anything that he proposes developed any new doll line. Mattel is not interested. It's very much like a straightforward economic theory would suggest, where if you're the dominant actor in the market, you really have very little incentive to introduce new products. They actually use in the corporation the term cannibalization. They don't want to cannibalize Barbie and her success. They just want her to be the only doll on the block. And so Carter has all these ideas of dolls that are more reflective of our realities. So first of all, Barbie is not only ageless and, you know, icy cold plastic, but she is basically very much white. She was introduced as, you know, a blonde. And Mattel had many years of these kind of back and forth, one step forward, two steps back, having more multi ethnic dolls, Barbies that are not just blonde. And Carter Bryant takes some time off from Mattel designs something that he thinks is much more of our time. He calls them Bratz. He designs dolls that have a more realistic body image. They're multi ethnic, they're fun, they're sassy, they're what he feels is more empowering to girls today.

B (9:53)

And.

A (9:56)

He sells the idea to a small competitor of Mattel mga, which releases Bratz. And for the first time in nearly 60 years, suddenly we have a real competitor to Barbie. She knocks Barbie off her pedestal in the holiday season and girls want to buy br. And this all happens without Mattel knowing about what's going on. They actually don't know that Carter Bryant is behind this idea for Bratz until much later, until Bratz is actually released. And the story is really tragic for Carter. He's basically kind of written off by both companies and he becomes this pawn where when Mattel actually discovers a couple of years later that he had sold the idea to mga, he sued. MGA is sued by Mattel. Mattel claims that they own the entire Bratz empire because of this contract that he once upon a time signed with them. And that's what starts a decade long rollercoaster litigation.

B (11:15)

So you mentioned that some of this is contract law, some of it is intellectual property law. Can you just chunk out for us what the issues become in the litigation? I know it goes up to the 9th Circuit and then it comes back, but can you help us just figure out what the size of the field is here?

A (11:33)

It's a mixture of contract and copyright and trademark, as you say. So the claim of Mattel is that because Carter Bryant was their employee, there are doctrines in intellectual property law that say that anything that he invented that was kind of work for hire or he was hired to invent, they own. And they're claiming that he developed these ideas, the sketches. He drew the sketches for these dolls while he was an employee of Mattel.

B (12:06)

And that's true, right? He did that. Is that correct, that he was still working for Mattel when he was brainstorming this? Or is that, is that in dispute?

A (12:13)

There's some dispute about the moment of Eureka and what exactly happened in his mind and then during weekends and nights while he was working at Mattel. That's part of what's fascinating in this long trial and what drew me to tell the story, because it really brings out the personalities and this question of where does creativity come from? Who owns ideas? How do they happen? The bottom line is that, yes, he did do some of the planning to leave Mattel and to sell these ideas and the sketches to MGA while he was still working for Mattel. So the question becomes, what is the extent of copyright protection? Whether copyright protects ideas and not just concrete expressions. Copyright should not protect just ideas. So as the ninth Circuit says, when they reverse the first decision in this case, they say, anybody is free to look at sketches and say, this is a great idea for bratty dolls, for Sassy dolls. Let's develop them. You know, let's develop something. It's only really the protectable, concrete expressions that are the subject of copyright. And those lines are really, really difficult to draw. And they're the basis of a lot of battles in copyright law. It's really fascinating how this body of Law has developed and whether we think.

B (13:51)

Of.

A (13:53)

Features, for example of the human body, which dolls are as protectable, or these are something that if you have a teddy bear, and I'm another toy company, I can also design a teddy bear. Because they all relate in some way to something that's out there and real and it's not really specific ideas or specific expressions that are owned by the company. So that's part of the battle. The other piece of it is that they say even if these are not copyrightable elements, these ideas of Bratty Doll, we still own it. Because Bryant signed away much more than that. He signed that any innovation, any ideas, any improvements, any design. So a lot of non legal terms, just kind of very broad catch all phrases about what you do as a worker, all of that is owned by the company. And that becomes really interesting to explore. What is it that you give up when you join a company that becomes what in, in the book and also in the in the trials is labeled the weekends and nights battle? Do you own your own time to, to dream? Basically, Mattel is arguing that even if you come up with things that are in your dreams at night, they own it. So it's the entire period when you're employed, they own everything that you invent.

B (15:29)

So what happens? How is this ultimately resolved? After millions and millions of dollars and years and years and buckets and buckets of lawyers, how does the case get resolved?

A (15:41)

Yeah, it's a lot of twists and turns and it's a huge reversal of fortune. So in the end it's not only that Mattel loses its claim over Bratz and the Bratz empire, but things happen. In the second trial, after it's remanded by the 9th Circuit to the lower court, things happen that expose the Mattel corporation as very problematic corporation. And there's a lot of counterclaims that are added by MGA about Mattel's practices. So corporate espionage spies at the toy fair questions about the corporate ethics with recalls when Mattel discovers that some of its toys are produced with unsafe conditions or toxic dolls. Questions about antitrust problems. So Mattel really announced war against MGA and Bratz. And so it became, I argue, completely irrational in the ways that it went about competing with it. Both in using the sledgehammer of litigation that was, I thought, a losing case. And the second court thought that, the second set of juries thought that, but also in all of the ways that they competed in the market, which was counterproductive. This is what's really fascinating about the case is that it was tried twice and the first time, really, Mattel gets it all. There's a jury and a judge that announced that Mattel owns the entire Bratz empire, that MGA has to stop producing any Bratz doll, stop using the Bratz trademark. This flip is really what triggered my interest in explaining how much we should care about the lines we draw in both employment law and contract and intellectual property law, and how effective a good attorney and telling the story can be. Because I really think that the mindset in the second trial really changed when Mattel was described as a different kind of corporation and the competition was understood to be something different than what it was presented in the first trial.

B (18:09)

I want to take a moment to talk to you about our membership program, Slate Plus. If you are hearing this, you're listening to the regular version of our show, which is awesome. But if you sign up for Slate plus, you will romp through the show commercial free and you'll get access to amazing bonus segments and extended versions of your favorite Slate shows. It only costs $35 for your first year. $35. And you can sign up for free for two weeks just to check it out first. One more thing. By signing up for Slate plus, you will be supporting this show and all of our journalism here at Slate, which you know is more important now than ever. To learn more and to begin your free two week trial, go to slate.com amicus and we are back with Orli Lobel to talk about her book, you Don't Own Me. So. So you have these internal memos that you write about where Mattel is talking in house about, quote, a rival led Barbie genocide rapidly grows. I mean, it's crazy talk, right? This is, you know, I had a skipper. I was kind of a skipper more than a Barbie person. But this is Crate, right? It says, quote, this is war. Sides must be taken. Barbie stands for good, all others stand for evil. I. It is literally the stuff that is going on that you're describing where Mattel looks like the dark lords in the midst of this who are just willing to burn everything down to keep Barbie pristine and pure. I mean, it's the paradox, I think at the heart of the book. But it's interesting because you're saying there was this reversal between the first and second trial. Is that because Mattel is smoked out as the evil overlords? Or is that because there's better lawyering? Or is that, I mean, I know there's a lot of places where you're noting that the optics had changed. Is that different guidance from different courts. I mean, what really is the reason that MGA goes from being losing everything to prevailing in the second round?

A (20:16)

Yeah, I think it's a combination of, first of all, the court of appeals saying on the law, really, we should be very cautious in how we interpret these very expansive contracts. We should understand also copyright law to have very clear limits of not everything can be deemed property. We should allow competition. Already the second trial is framed in that way of really being very careful about what is copyrightable, what was turned over by contract. But the mindset is very much part of the explanation and the story. So this idea that somebody stole something from Mattel becomes just very difficult to support when all this evidence comes out about how Mattel had a whole unit that was called, or at least at trial, it was called how to Steal, how to Steal Manual and How to Steal Corporate arm. It was called in the Mattel Corporation, the intelligence department. And the whole setting was a team of people who were sent to the toy fairs, issued fake names, fake business cards, fake stories about who they are in order to steal from competitors, their market plans, and their kind of next big toys. So that definitely made the jury more skeptical about what's going on. There are a lot of other things that really were introduced in the trials that drew me to the case. It involves questions about ethnicity and immigration. So it's really a story of David versus Goliath, but the David is not Carter Bryant, who is like too small of a David to even fight this big corporation.

B (22:25)

Goliath versus Goliath. Yeah. Right.

A (22:27)

Well, it's still an underdog. So Isaac Larian is the founder CEO of mga, and he was very effective in the trial. In the first trial, it didn't really work in his favor. He presented himself as this American dream, Iranian American immigrant who starts with nothing, founds his own company, and then he gets sued by this huge behemoth. He is in trial every day with his family. He presents his passion about the toy industry, all of his ideas to promote play, and he names his brass dolls for, like, his daughter and son. And he. At some point in the first trial, this is not really working to his favor because there's evidence that there is some racism in the jury, by the jury. A juror comes forward and says that one of the other jurors says that all Iranians are thieves. And the judge in the first trial, Steve Larsen, says, oh, yeah, that's not okay, but probably didn't affect anything. In the second trial, I talked to jurors that were really convinced that these, these adult men, these corporate CEOs were in some ways personifying the dolls that they were putting out. So, you know, the cold, icy CEOs of Mattel, who the executives didn't really want to be there, were kind of above everything. We're no longer passionate about what they were really doing. It could be selling cheese, it could be selling computers and it could be selling toys. It really kind of, it was all business and it was all the bottom line of maintaining their dominance at all price. And then we had Isaac Larian, who really cared about the ideas and the inventiveness and the market, the industry. There's a lot of storytelling going on before the jury and in the minds and hearts of the people involved in the. And that comes through, I think really that affects the outcomes of the case.

B (25:07)

It's so funny because I'm listening to you talk and I'm watching my producer doubled over in laughter at the black ops of Mattel, Mattel just running through toy conferences. It's so nuts. And then sort of layered over that you're also describing this unbelievable world of we're letting Mattel and MGA litigate who is an American in some sense. What are our iconic ideas, idealized visions of American womanhood. There's really, it's so strange how. And layered over that of course is MeToo and NDAs which you, you mentioned at the top or a piece of the story. It's really incredible that a fight, you know, between Barbies and Bratz has so many threads of the kinds of anxieties we're all living through in our non Barbie based lives.

A (25:59)

Absolutely. And of course, the Bratz Barbie trial is not the only trial that Mattel has been part of. So this impulse to control, as you say, who's the all American girl. What are the images of womanhood that we put out there in the fashion and entertainment and toy industries? And who controls that image and who owns that image? That is the basis of so much courtroom drama that I uncover throughout the book. So it's not really just this case that starts us off, but Mattel has been suing for decades any artist, musician, film producer and competitors that had different visions for, you know, what Barbie can look like, what she sings, what she does, who she is, and that play, play on play really is, I think it's really important. And again, I started by saying that I brought these battles that happen in corporate America, in every industry, and I think this story is really universal in that sense. I brought it to These industries, because I think they are so important. Who creates culture? How is culture maintained, and how is it challenged? These are the questions that in some ways affect us the most from the moment we are born, more than whether we'll get this new technology in our iPhone or not. There are minor differences between Apple and Samsung smartphones or whatever it is. Those are also important battles. But these cultural icons are with us, and they shape the way that we dream and the way that we play, the way that we interact, the way that we perceive others. And you discover when you go through the history of these courtroom battles, that law is all over the place. Law is really shaping the path that these industries have been going.

B (28:19)

And it's interesting because I think that it's pretty clear. You know, you describe in the book, I mean, I know, you know, you were. In a sense, you were. When your mom was researching children in play, you were kind of exhibit A and she was watching you. And your own complicated relationship with dolls and with girls and dolls and with gender is definitely running through this as well. Right. So this isn't even just you reflecting on American culture. This is reflecting as your mom's daughter and you as a mother. I mean, this is, in some ways, you thinking through what all American girl imagery in play does to our children.

A (29:04)

Yes. And I'm not even American, but I am the daughter of a psychologist who studies gender development. And as you say, in that sense, I'm a character in the book because she posed me at the age of six and on in experimental psychology studies and videos where I was playing with boy toys and girl toys, Barbies and tiaras versus trucks and soccer balls, and showed these videos all over the world. And the results were really striking. When I was playing with the boy toys, I was perceived by the subjects of these studies as having more leadership skills, higher intelligence, more potential. So very early on, I became a critic of the toy industry and not just playing for fun. And I am a mother of three girls, So I think about play seriously, and I make choices, like we all do, about what to buy our kids and how to direct them and help them kind of develop their sense of identity. One of the things that becomes really important, all of this to me, is the idea of choice. Like with every other industry and with every other field, what's really important is that we have openings. Not this idea of, okay, let's just get rid of Barbie. First of all, it's not an option. But the other thing is that there are. It's much more mixed, as you say, there's ambivalence in all of us of how we react and interact with sexuality and girlhood, womanhood, the kind of images that we put out our own dual or multiple identities as mothers and sexual beings and career women. It's complicated, but what's really important is not to have one corporation or one organization or a government telling us this is the one way that we have to live within this realm. What I hope is also evident from the book is that intellectual property is another place, another forum in which we play out a lot of our questions about what is speech, what is democracy, what is exchanges, democratic engagement and creation, cultural creation in a healthy society.

B (32:03)

Orly, I was thinking about I love Justice. Brandeis used to call the curse of bigness. You know, when things get too big. I mean, he was talking about banks and money concentrated. But it does feel. And I think, you know, hearing you talk about Mattel going after, you know, the band Aqua for the sound song Barbie Girl, I mean, it just seems as though at some point, and I think you've made this point about Steve Jobs and Apple, at some point you become so big that you stop valuing innovation and creativity and you start to. You just use your bigness to crush other people. Is that the moral of this story, that bigness, bigness at some point begins to be at odds with the kinds of creativity that brought us Bratz Dolls. But also, I think, and maybe again, this is what connects this MeToo moment and the NDAs and Harvey Weinstein to your story about Mattel. And that has something to do with, at some point you're so big you can use the law to crush other people.

A (33:12)

Yes. Bigness is, a lot of times it's equivalent to basically having monopoly power or just too much power that corrupts. And it corrupts in several ways. One is what we said before, the kind of idea of not wanting to cannibalize your own success. So it's a very simple economic model that that's been confirmed and tested out. In reality, Kenneth Arrow, who's a Nobel laureate in economics, suggested this years ago that there's just little incentive of whoever has the one product that everybody uses to create new products, because they're already, you know, they already have such a huge market share. So that's why we need an active industry that has new entry, that's healthier in that sense of entrepreneurship and less concentration. But there's something more than just that. I think that, again, what you just said about using litigation and using the law in ways that really confirms Your dominance and staying power and resources to go all the way through with litigation is a real big problem in so many aspects. So we see right now with MeToo, we see a lot of settlements that are secret. We just had the Supreme Court decision about mandatory arbitration agreements and class arbitration not even being part of that, or waivers being enforceable of waivers of class arbitration. What all of this means is that when we have unequal powers, very, very unequal sides in the race to the courthouse, there's going to be just a huge difference in who is willing to fight it out and who will just have this. Most of us will just be chilled. There's going to be a huge chilling effect on what risks we're willing to take, what behaviors we're willing to engage in. So I've actually argued about all of these clauses that they have a chilling effect that goes way beyond what we see in litigation. Yes, there's a rise in trade secrecy litigation. There's a lot of fear by employees that when they leave, they're going to be hit by an NDA clause and their employer is going to say, you took something away from us. You're using whatever you learned with your new employer. So there's all the time active litigation in those fields. But what we don't see is below the tip of the iceberg, all of these decisions that are really private and passive about not speaking out, about not moving to a new employer. So to me, again, to connect it to MeToo, these are the two sides of the coin. It's exit and voice. In the workplace, in the marketplace, where individuals fear to speak out against power when it's overly concentrated, when it's very. When there's not a lot of options. And I've recently written actually about Fox News and this question of who spoke out about sexual harassment and the in Fox, I talked about it as a prisoner's dilemma and all this kind of game theory question of if you're the only one who's going to speak out, you're going to be crushed. And so you have very little incentive and just very little chance to win. So there's that internally, but there's also not enough exit if you can't move to others or other workplaces, other options. And so the two feed into each other where we see power as corrupting and the law supporting that.

B (37:47)

One of the reasons I wanted you on the show, Orly, is because to draw a line between A.O. hirschman, exit voice, Power, Secrecy, and the Sleepover Barbie Kit is. It is a master. It is really? That is a masterpiece of legal analysis. Orly Lobel teaches law at the University of San Diego. Her specialties are employment and intellectual property, and her really gripping book about Mattel vs. MGA, Barbie vs. Bratz, is called you'd Don't Own Me. It was published this past year. Orly, thank you so much for joining us on the show.

A (38:27)

Thank you so much for having me.

B (38:30)

And that is all she wrote or podcasted for this episode of Amicus. Thank you so much for listening in. If you want to get in touch, our email is amicuslate.com youm can always find us at facebook.com amicuspodcast Today's show was produced by Sarah Burningham. Steve Lichti is our executive producer and June Thomas is senior managing producer of Slate Podcasts. And we'll be back with another episode of the show in two weeks.