With the success of Margot Robbie and Greta Gerwig’s blockbuster movie, we are once again living in a doll’s world. Toymaker Mattel has long had a reputation for aggressively defending its Barbie-related intellectual property. Hosts Trisha Rich and Maggie Mendenhall Casey are joined by K&L Gates partner, Alexis Crawford Douglas, to discuss the intellectual property aspects of the movie, the origin story of the Barbie doll and the most interesting and impactful IP cases that have been part of the ongoing quest to protect the iconic doll brand.
Special thanks to our
Trisha Rich: Hello everyone and welcome to CBA’s At The Bar, a podcast where we have unscripted conversations with our guests about legal news, events, topics, and other stories that we think you are going to find interesting. I’m one of your host today, Trisha Rich of Holland & Knight and co-hosting the pod with me today is Maggie Mendenhall Casey, General Council of the City of Chicago’s Community Commission for public safety and accountability. Maggie, thanks for being here today.
Maggie Mendenhall Casey: Hey lady, I’m excited to chat with you.
Trisha Rich: Hi. I am excited about today’s topic. You know, I am a movie buff, so I am very excited to be here.
Maggie Mendenhall Casey: Are you a Barbie girl in a Barbie world, Trish? That’s the main question.
Trisha Rich: I know. We are going to get into it. So joining me and Maggie today is Alexis Crawford Douglas, a partner with the global law firm of K&L Gates. Alexis sits in the Chicago office where she practices intellectual property law. She does counseling, transactions and litigation related to trademarks, domain names, social media and copyrights, and provides strategic management of global trademark portfolios for all kinds of clients all over the world.
Alexis is also a longtime CBA member and has been instrumental in a number of Chicago Bar Association projects over the years, including serving for a number of years on the planning committee for the events surrounding Women’s History Month, which the CBA acknowledges each March. But for purposes of today’s podcast, maybe all I really need to say is that Barbie, that Barbie is a lawyer. Alexis, welcome to the pod.
Alexis Crawford Douglas: Thanks so much you guys. Excited to be here.
Trisha Rich: Very, very, very excited to have you. So we brought you on today to talk about what is now a global phenomenon, Greta Gerwig’s Barbie was released on July 21, 2023 and as we record this episode today on August 31, just over one month later, it has broken almost more records than I can count.
This is a non exhaustive list as I truly could not include all of them. It is the biggest opening of any movie in 2023. It is the biggest opening of any female director ever. It is the biggest opening ever for a non sequel movie. It is the biggest opening ever for a toy based film. It is the biggest opening ever for a movie without IMAX. It led the fourth biggest movie weekend of all time ever. It now holds the record for the biggest Monday ever for a Warner Bros. movie. It is the biggest opening weekend ever for a Warner Bros. movie. It is the highest grossing film directed by a woman ever. It is the 9th fastest film ever to reach $1 billion in revenues.
On August 16th, it became Warner Bros.’ highest grossing movie of all time and six days later, it became the highest grossing movie of 2023. And as of eight days ago, it is the 14th highest grossing movie ever and is expected to crack the top ten by the end of its box office run. And as I said, those are just a few, just a few of the records that this movie has broken. It is truly a Barbie world.
And yet it’s a bit of a surprise because Mattel has been famously litigious when it comes to Barbie and has protected that image both through threats of and actual litigation for decades. And we’re going to get into all of that today.
But first, ladies, have you seen the movie?
Maggie Mendenhall Casey: Of course.
Alexis Crawford Douglas: I had to see it in preparation for talking to you. I’d been planning on it. I actually had a really sweet story of we were on vacation with my mom and my daughter, and so we had three generations of Barbie girls that went to the movie to see it together. And that was pretty fun.
Trisha Rich: And what’d you think.
Alexis Crawford Douglas: It was highly entertaining, highly entertaining. And two of us cried at the end. So that’s an effective movie, I think.
Trisha Rich: We won’t make you tell us which two.
Maggie Mendenhall Casey: I did not see the movie. I have to make an admission. But I do have to give a big shout out to Greta Gerwig, a fellow Barnard College graduate, shout out to BC Barnard College, women getting it done.
Alexis Crawford Douglas: Yeah. I mean, I remember first hearing about this movie being in the works, and I rolled my eyes very hard. I thought it was a total joke.
Trisha Rich: Yeah. I have to say I did too, until it came out. And then I started seeing everybody I knew you see on social media like, everybody was posting about dressing in pink and going to the movie, and I’m like, wait, what is this? So they did a great job marketing ahead of time. I think that was a credit to the success of the film.
Maggie Mendenhall Casey: Well, I haven’t seen the movie. I have put my daughter in one of those Barbie boxes to take photos. I’ve posed in a number of those Barbie boxes. I love the marketing, wore in fact, the all pink outfit to the board of managers inauguration. I really admire how they’ve been marketing and publicizing this movie.
Alexis Crawford Douglas: I loved the run up to the movie where Margot Robbie was doing all the press in the classic Barbie costumes. I mean that was gorgeous. It was just a stroke of genius. She wore it all of them so well. She really has just embodied this character.
Maggie Mendenhall Casey: Yeah, she really did. Yeah and my understanding is that she had an interest in producing this movie or getting this movie across the line for years, I think maybe even before Greta Gerwig was on board and you could really see her passion and dedication to the concept throughout the whole publicity run.
Alexis Crawford Douglas: One of the pieces that I thought was also kind of interesting is as you’re watching the movie, I hadn’t looked into it a lot before hand. I just was like I’m going to go in fresh. I hadn’t read a lot of the news, but Mattel was sort of they were cooperative. They didn’t have a lot of direction, I read some articles saying, but they allowed this to go on. So there’s not going to be any lawsuits between Mattel and the producers, right. But I think they did have a little bit of input and things like that from what I saw in an interview with the CEO, who, of course, the movie kind of makes fun of.
But I just think that’s genius too, because it made it a cultural event, and now everybody’s thinking about Barbie. I’m like, mom, where are my Barbie? Let’s get them out.
Trisha Rich: It’s amazing. So I did the opening day Barbenheimer push.
Alexis Crawford Douglas: Oh, nice.
Trisha Rich: Yeah, I left work early. I did a 5:00 viewing of Oppenheimer, so that went from five to eight and then I saw Barbie at 9:30. And I would have sat through both of them again immediately. If you were like, Trish, you got to sit in a movie theater for another five and a half hours, I would have said, okay. I thought they were both really incredibly well done. I mean two very different kinds of movies.
And my husband was supposed to go with me, but he ended up, he was on trial, and he thought it was going to settle, and it didn’t, so he couldn’t come. And so I took my friend Jackie and we went and then when my husband got back from Tampa on his trial, he was like, I still want to go.
Alexis Crawford Douglas: Did you see it again?
Trisha Rich: Yeah, we went and saw Oppenheimer again, and then we went and saw Barbie. So we did not do it the second time, I did not do them back to back, but I’ve now seen each of them twice, actually. So some amount of that $1 billion is me.
Alexis Crawford Douglas: Two times. I was surprised by the people that I’ve talked to who’ve actually seen it, like one of the heads of our IP group, he’s like, oh, the Barbie. Yeah, totally, that sounds great. He’s like, I saw it. I was like, you saw it? He’s like, my wife wanted to see it, so I went with her, and I was like, that’s awesome.
Maggie Mendenhall Casey: You guys are making me so jealous. Those are both movies that I want to see. And Trish, at this point, you’ve seen them not once, but twice. I also think that this is a great business move for Mattel and Barbie, right, like the Barbie dolls. As we all know, public knowledge have not been selling as well as of late, but to try to reformulate the thinking around Barbie and that it’s not just the dolls but it’s a whole universe like Star Wars, like Marvel, they can keep cranking them out and then also produce all of this merch that us adults want to buy and be involved in the world.
Trisha Rich: Yeah. I got to tell you, it’s just this incredible thing. So on opening day, when I went to see it, I went to the movie theater by neighborhood. I live in Lakeview so I saw it at the Alamo Drafthouse. So I saw like I said, Oppenheimer first, the movie theater was full of men and women wearing pink. And so we all were doing the exact same thing. We were all sitting through three hours of Oppenheimer, taking an hour and a half break and then going back in to watch Barbie and I will say that my neighborhood abuts or includes I should say the North Halsted neighborhood, one of Chicago’s historically gay neighborhoods.
But I did not see a gender difference in my movie theater. I would guess it was 50% men, 50% women, right.
Alexis Crawford Douglas: Same here, yeah.
Trisha Rich: And it was just fascinating how enthusiastic people were for both of these films. And so I mean, the funny thing is like the Alamo Drafthouse has parking validation, but you can only stay four hours. So I had to go out in between drive my car around the block and go back in but it was worth it. It was just, there were people lined up out the door to take those pictures in the little Barbie box.
And then when I saw it again the second time, like several weeks later, it was the same thing. People were still wearing their pink Barbenheimer shirts and the marketing of these two films together I think is part of what’s driven the success of it of both of them but really, if anything, Barbie has, I think, really helped Oppenheimer in a way that is probably not going the other way.
Alexis Crawford Douglas: No. Absolutely. I actually saw it in a small independent theater in South Haven, Michigan. It was raining on the day that Monday that we were up there. The day before, I was like, “I think it’s going to rain. I’m going to get tickets ahead just in case.” And my mom’s like, “come on, nobody’s going to be there.” Who’s in town right now? Because it’s like August after most school started and the theater was totally packed. It was sold out. It was like sold out 20 minutes before the show for this tiny little theater. We got seats in the second row, so we’re like looking up their noses. But it was also, like a good mix, like gender mix, like even in Michigan, like a good mix of people, it was less pink because everyone was drenched from the rain, but there was still some pink. It wasn’t as much of the marketing. But still, everybody’s like, crowding in there all wet, soggy.
Maggie Mendenhall Casey: I bet on a day like that, you’re really getting a hit of dopamine and watching the movie.
Alexis Crawford Douglas: Totally.
Maggie Mendenhall Casey: Right?
Alexis Crawford Douglas: Yeah.
Maggie Mendenhall Casey: I watched ‘Architectural Digest’ put out like, a five-minute clip on YouTube where they showed the set for Barbie and the Barbie home and just even watching that, I just felt like, “oh, this is so beautiful.” Beyond it being beautiful really makes you think because they’re trying to make it look like a Barbie house, not a real house. Like they have the little stickers and all of that. As I continue to hear you, my jealousy grows and grows. I’m turning green over here, ladies.
Alexis Crawford Douglas: Well, the week before it came out, I just — I get my nails done every few weeks. I was in my nail salon getting my nails done, and I looked around, and every single person there was getting pink nails. Nobody was doing a non-pink color. It’s really taken the world by storm.
Trisha Rich: They could have sold nail polish ahead of time. Barbie has a trademark, actually, for the pantone color of the pink for – Barbie pink. They could do nail polish. I’m sure they have in the past.
Alexis Crawford Douglas: Everything.
Maggie Mendenhall Casey: Yeah, I think they did an OPI collection, and that’s something I definitely want to chat with you about later. Like Tiffany blue, Barbie pink, Louboutin red. Like, that type of stuff is super interesting to me.
Trisha Rich: Let’s talk a little bit about for all of the history and the lore behind the Barbie brand. I understand, Alexis, that it started with a lawsuit, right?
Alexis Crawford Douglas: Right. The story behind the Barbie doll, as you hear in the movie at the end, that Ruth Handler was the inventor of the Barbie doll, and she created it to be a doll that her daughter could play with that wasn’t the traditional baby dolls. And so it looked more like a woman. And they’d gotten the inspiration when they were on vacation. And I guess she had been pitching this idea for a long time, and Mattel was like, “no, no, no, nobody’s interested in that.” They were on vacation in the Swiss Alps, and Handler and her daughter saw this German doll in a window called Bild Lilli. And the doll was a perfect representation of the idea that she had came to Mattel with, which was like a woman — let’s do a doll that looks like a woman rather than just like a baby doll, and people can use it as sort of inspiration and aspirational.
Went back to Mattel created the doll. Of course you do something like that, and it’s maybe taking someone’s idea, but I mean, she had the idea before, but really the first lawsuit was a patent infringement suit that the company behind the Bild Lilli Doll, Greiner & Hauser brought for the patent on the hip joint of the doll. This was the first doll that had like women’s legs like elongated legs and other features. I think that case was dismissed, and Mattel convinced them to sign a contract to sell their patents and copyright and to nerd out here on IP law, patents are only valid for — you only get the monopoly for a short period of time. And copyright too, it’s a longer period. You get it for a little bit. Copyright’s longer. The genius, I think, behind Mattel has been trademark is a type of protection. Patent covers the invention, the hip joint, and how it moves. If it was novel and non-obvious, if it was a new way of making dolls.
Copyright would cover what the doll looks like, her mold, her facial features and things like that. Sort of the doll as a whole, maybe packaging, sometimes anything written. It’s sort of the same thing that covers music or any kind of artwork, anything put down in tangible form. And that trademark is what covers a brand. So Barbie. The name Barbie for dolls, Barbie for accessories, Barbie for dream houses, Barbie for everything else.
The kind of neat thing — I don’t know, I’m just totally nerding out on this is they started with this patent limited monopoly, idea copyright. And Mattel’s brought a lot of copyright cases over the years that we’ll talk about later, I’m sure. And then one of the greatest ideas, I think probably Ruth Handler Mattel had was registering the trademark for that Barbie mark back in 1959. It was the first trademark registration for the Barbie doll and accessories came in 1964. And then toys and some more things started coming in the 80s when I think Barbie was trying to revamp itself and sort of get more relevant. It’s kind of neat to see their IP registrations and how over the years that’s followed, what the company has done with the doll, too. You guys let me get really into this.
Maggie Mendenhall Casey: No, we appreciate it.
Trisha Rich: That’s why we’re here.
Maggie Mendenhall Casey: That’s why we brought on the IP lawyer. I appreciate you even talking about the fact that it was about the hip joint. I, in looking into, didn’t realize that it was something as specific as a patent for a hip joint. That was the genesis of one of really these first litigations or lawsuit. My question is about Barbie and the development of Barbie trademark. How does a brand or Barbie in particular, establish a trademark that is legally protectable? Do they just go down to some government office and say, “we want to trademark Barbie?” How does it become like the spirit and the legally protected spirit that we know of today with the pink and the writing and all of those things?
Alexis Crawford Douglas: There’s a couple of ways, really, to do it. And I’m sure back in 1959, it was actually an earlier trademark law, but once they started selling the Barbie products, you file an application, and for Barbie for particular goods or services, in this case, it was Barbie for dolls. It’s usually through — you can get trademark rights by simply selling a product in commerce, and people start associating the mark with your company. But it’s much better to get them by registering — or to register your trademark with the trademark office, because that gives you sort of a presumption of validity and ownership of the mark. Like I said, they did that very early on. And then that allows you to have rights across the United States. Say she had just sold them in — I actually don’t know where they lived, but let’s say New York, because they were in New York quite a lot. Mattel has been.
If it was only in New York and somebody else had a Barbie product in California, at that time, and then you’re like, “well, we sold them here, you sold them there”, you’re carving up rights. By getting a federal registration, you have nationwide rights and nationwide priority. And so, yes, so they did that pretty early on and that goes for any brand these days. And now these days, if you have a plan for a brand, you can file an intent to use based application. Say I have a plan to market a doll named X, and you file an application to put yourself in line. Eventually, to get a registration, you have to prove that you have sold the doll. That’s sort of how the process goes. And they’ve used those registrations, really, to enforce Mattel’s rights in the Barbie brand from all kinds of — some of these famous cases. But also in digging into this, I was looking there’s a lot of counterfeit cases. There’s a lot of — and these days, one of the issues that’s super hot for a lot of brands is enforcement online like, different online sales platform forms that you can buy and sell products on.
Sometimes have counterfeit goods or products that have the trademark in the description or the name, and you’re like, “no, no, no, you can’t use our trademark to sell those products.” Mattel’s had to take action against those too.
Maggie Mendenhall Casey: I love that you use the word enforce, because it does seem as if Mattel has been very diligent about protecting their IP rights and making sure that they are not diluted. I think that’s a technical term that I learned, dilution.
Alexis Crawford Douglas: No, it is. No, that’s absolutely — dilution is actually the word for it. I have no insight into these cases other than just the research we’ve done to prepare for this and just to be, like, kind of an avid follower of the brand. But dilution is a big thing because that’s for famous marks like Barbie is famous. Absolutely. Everybody knows about it, and especially now with this marketing. Diluting the brand is, I’m sure, a concern for the company. And it’s how you have a case like the recent one in September where wrap snacks came out with some potato chips. It looks like barbecue honey.
Trisha Rich: Before we get there, and we will after our first break.
Trisha Rich: IP law is not my forte, and it’s just not a thing I even really, I think, have a strong understanding of, except to know that I would bring in an IP lawyer. I am a lawyer but just a little bit of a layperson here when I talk about IP law. What I want to say is, if you look at the photo of the Bild Lilli doll and you look at a photo of the first Barbie, those two things look remarkably similar to me, particularly in face structure, height, the built of the doll, the leg, the arms, everything. I mean, I’m just like a regular consumer, but I look at these two things and I’m like, yeah, it looks like they copied it.
Alexis Crawford Douglas: You know, that was probably part of the dispute back in the day and I’m sure that these days, if the tables were turned, I’m sure there would be some action happening there. Yeah, I was looking at it too, because the face, the eyes have that same 1950s winged, right?
Trisha Rich: Yup. The cat eyes, the high cheekbone. I mean, the structure of the face looks not identical, but very substantially similar.
Alexis Crawford Douglas: Yeah. And that would be a copyright issue, right? So what the doll looks like and sort of if you think of it as a sculpture, like a sculptural work, that would be, and I’m sure their arguments have been made over the years or that you would argue but, yeah, substantially. Did you say substantially similar? Because that is the statement, right, for copyright infringement?
Trisha Rich: Apparently, I (00:21:41) copyright law.
Maggie Mendenhall Casey: There we go.
Alexis Crawford Douglas: See, you might have listened in some class in law school.
Trisha Rich: Yeah. Well, with that, let’s go ahead and take our first break and we’ll be back in a minute just to talk about some more of these lawsuits.
Trisha Rich: And we are back. So right before the break, Alexis, you started to talk to us about the Rap Snacks case. So what happened?
Alexis Crawford Douglas: So in September 2022, well, actually, that’s when the case ended. But to the beginning of last year sometime, Rap Snacks came out with potato chips called Barbie-Que, so B-R-B-I-E-Q-U-E honey truffle and they had Nicki Minaj’s name on the front of the bag and an image that kind of looked like her with the Barbie t-shirt on and Mattel had sued for trademark infringement on the grounds that people would confuse the snacks or be confused into believing that the snacks came from Mattel or usually in these cases it’s like authorized by Mattel or they sponsored it or something. Their argument was that Mattel licenses the Barbie brand to other food and snack products. Rap Snacks allegedly never got a license or asked permission to use the mark in connection with these products, so they sued for trademark infringement. Unfortunately, as with all of these in the IP world and trademark world, most cases settle. They don’t get to go to trial that much because sometimes it’s just not economically — most of the time it’s not economically feasible to continue litigating when you could enter into a licensing agreement, perhaps. Who knows what happened here? I have no idea. But my guess is that perhaps something like that. They finally came to some kind of resolution on that front.
Maggie Mendenhall Casey: So when I was reading about this particular case, it flagged like another issue or just like inquiry for me. So I know the Rap Snacks. You go in a corner store, you go in a gas station, they have Rap Snacks that have like Snoop Dogg or Fetty Wap on the front promoting a particular flavor of chips. In this case with the Nicki Minaj barbecue chips, part of Nicki Minaj’s persona is Barbie. I went as Nicki Minaj one year for Halloween with a pink wig. She would wear a Barbie chain early in her career that was and is a big part of her persona. She released a song called Black Barbies. I am curious about what, if any, type of protection there is for Nicki Minaj to utilize Barbie in that fashion. Is it good marketing for Mattel and Barbie, so they decided not to go after her. Do you have any thoughts on just like an artist really ingraining a trademark into their own persona?
Alexis Crawford Douglas: Yeah, I think that’s where the fuzzy line of IP comes in and we’ll see that in these other case. You know, in cases where somebody was selling another doll with Barbie on it or like these counterfeit cases where it’s like clearly a Barbie doll but not the Barbie doll, that’s infringement. That’s really clear cut. But when somebody’s taking the brand and making some kind of commentary on it or using it in their own way, that’s where it gets a little bit fuzzier to enforce. I did see somewhere in the background that Barbie had done a doll line with Nicki Minaj at some point 10 or so years ago, and they donated the doll, like the proceeds or the dolls to charity. So I had seen that in some article online. Hopefully it’s true. I assume that at some point they had a chat because of course, Mattel, why would you not want a little bit more publicity for your brand? But also as an artist, you’re allowed to talk about brands or you’re allowed to talk about things and do that and you can’t. It’s a whole free speech idea, right? And it’s hard to stop people. So that is where it gets a little bit fuzzy.
Maggie Mendenhall Casey: Nicki Minaj and Mattel and Barbie are friends and fans of each other. In fact, Nikki was featured on the soundtrack for the new Barbie movie.
Alexis Crawford Douglas: That’s right, yeah.
Maggie Mendenhall Casey: Right, right, which is actually a remix of the Aqua song Barbie Girl, which Mattel initially sued MCA Records over. So it’s just so many different layers and intersection of the IP there between Nicki Minaj, Barbie and then the Aqua Barbie Girl song. I don’t know if you wanted to speak on that case just briefly, Alexis.
Alexis Crawford Douglas: Yeah, well, I was just going to start by saying for the people that have never heard it, because I would suspect there were or a lot of people that don’t know this song.
Maggie Mendenhall Casey: True.
Alexis Crawford Douglas: But just to give our listeners just a minute of backstory on that, the year is 1997. Little Trish is a junior in high school. No, a rising senior. This band comes out with this song called Barbie. Is it called Barbie girl. I think it’s called Barbie World.
Maggie Mendenhall Casey: Yeah, Barbie Girl.
Alexis Crawford Douglas: It’s satirical and unflattering in a number of ways, but if you’ve ever heard it’s the “I’m a Barbie girl in a Barbie world,” and this will mark the first time I think anybody’s ever sang on the podcast and I can’t believe —
Maggie Mendenhall Casey: Life is plastic.
Alexis Crawford Douglas: Me, right.
Maggie Mendenhall Casey: No, not too many words. Not too many words. That’s a whole another IP issue.
Trisha Rich: I hope that Jen has our insurance policy in place here.
Alexis Crawford Douglas: Fair use. We’re just taking a little bit to reference the song.
Trisha Rich: I remember of course, the video coming out for it and I think Mattel brought pretty swift action on that song and then did not use it in the movie, but as Maggie noted, had Nicki Minaj remix it into a different song that they did use in the movie. So with that as background, Alexis, what happened there?
Alexis Crawford Douglas: Sure. I have to say, I was in 7th grade and I just vividly remember this song and I can still sing all the words. I’m not going to, but I totally can.
Trisha Rich: Actually, now that you mentioned it, I, too was also in 7th grade. I just had a lapse in memory.
Alexis Crawford Douglas: Yeah, no, that’s okay.
Trisha Rich: No, I am a couple of years older than you, Alexis.
Alexis Crawford Douglas: But that’s okay. I didn’t mean to age you, but I’m like as a middle school teen girl who’s obsessed with music and all that stuff. This is where that fuzzy line comes in because the song really was “life and plastic, it’s fantastic” and it was sort of making fun. And it is the idea, I think, that the movie hits on, too, over the years, people have villainized Barbie and said, it’s an unattainable standard for women and things like that. And the Aqua song was kind of playing on that same idea and so, you know, of course, Mattel did sue and claimed that they violated the Barbie trademark and turned Barbie into a sex object and referring to her as a blonde bimbo when they alleged that the song violated their copyrights and trademarks of Barbie. This is another interesting one and that its lyrics tarnished the reputation of their trademark and impinged on their own marketing plans. On the other side, I haven’t read all of the pleadings in this case because it was a long time ago.
Trisha Rich: You were in 7th grade.
Alexis Crawford Douglas: Right. I was in 7th grader, I wasn’t quite thinking about law school yet. On the other hand, sometimes things like this bring attention to the brand in a way that it wouldn’t have had otherwise. And so, sometimes when you’re weighing these kinds of claims, you have to think about that too. And so MCA Entertainment, the producer, they contested the claims and accused Mattel of defamation because Mattel had likened them to a bank robber. And so that was kind of interesting. And then know a whole bunch of procedural things that happened.
They moved to dismiss the complaint for failure to state a claim. And on appeal, the Ninth Circuit which — here’s a lot of IP cases, kind of the Ninth Circuit and the Second Circuit are the big where most of the trademark copyright cases, especially copyright in the Ninth Circuit are brought. They ruled that the song was protected as a parody under the doctrine of nominative fair use which means you just are using enough of the mark to bring it to people’s minds, but they weren’t, like, Aqua wasn’t selling another doll, right? They were just referring to the name Barbie in their song. So they’re not even really competing products and that kind of idea, and under the doctrine of Nominative Fair Use and the First Amendment, right? Judge Alex Kozinski had sort of a famous opinion here that we all read in law school if you take IP classes and at the end of the ruling, he says, “The parties are advised to chill.” It was a fun read. I do remember that.
Trisha Rich: So, you know, artists can have their own commentary on the brands and things like that and our law allows for that. So, one of the things you mentioned, Alexis, you said something briefly in there about how Barbie portrays this unattainable, like not only an unattainable woman and how women should be, but also like this ideal that has been controversial over the years, right? It’s been both, and the movie, I think, rapples with this over and over again.
Alexis Crawford Douglas: Totally.
Trisha Rich: Yeah, that it’s both this empowerment like Barbies can be everything and there’s so many points in the movie where Barbie says, “I didn’t know men could be on the Supreme Court” and there’s like all of these, like all of that. All of these places where Barbie is both this symbol of empowerment. And then in the other world, in the real world, really struggles with the way that the Barbie image has helped to perpetuate stereotypes about women that can be harmful. This comes to a crescendo in a scene where she goes to find her girl in the real world. By the way, we should have started this episode by saying we are going to talk about the movie and there are going to be spoilers.
Alexis Crawford Douglas: Yeah, we should add that in.
Trisha Rich: And for some reason, Maggie came anyway, which is great but it is a crescendo in this movie of this point where she goes to the middle school to meet the girl that she thinks is like her human in the real-world universe, Sasha. And Sasha just tears into her and gives her this like long speech about how she is, you know, she’s been holding women back. Margot Robbie in a place of incredible acting, you see her tear up. She’s obviously very moved. I mean, she’s incredible in this role. I will say, I think Ryan Gosling is really a, just a real standout but Margot Robbie really, really does a great job, but in this scene, she’s like very moved by this young girl who’s telling her like, no Barbie, you are everything that’s wrong with America. You have led to all of these problems over time, and it’s clearly something that Barbie has never thought of before, ever.
Alexis Crawford Douglas: Some of it I hadn’t thought of either, I’ll say.
Trisha Rich: And she’s like 14, yeah.
Alexis Crawford Douglas: Right.
Trisha Rich: I mean, the kids are right. The next generation is going to be just fine.
Alexis Crawford Douglas: Yeah, we made it through.
Trisha Rich: But the most fascinating thing about that scene is something I read later, that those four girls are the original Bratz girls and they share the names and the aesthetics of the four original Bratz girls, which were created in a part to be like this anti Barbie force. And so, that led to a lawsuit. And that’s the next lawsuit I want to ask you about, Alexis. And so, I didn’t know that at the time. I am too old to have been playing with dolls when the Bratz came out, but Sasha, who’s one of the main characters, she is both shares the aesthetic and the name of the original Sasha Bratz doll. So, can you talk a little bit about that lawsuit?
Alexis Crawford Douglas: Right, and that lawsuit I think ended. We’re near the same age so I think it ended around the time I was in law school.
Trisha Rich: That’s very generous of you.
Alexis Crawford Douglas: No, seriously. No, I’m now dating myself because I’m like, I think I was almost in law school when this ended because I do remember some of these cases. Some of these older cases the last time you read it as full cases when you’re in law school. But you know, that one was Carter Bryant, the inventor, was young and working at Mattel in around 2000.
So well past the time we would have been playing with Barbies on designing clothes for Barbie when he created Bratz. Although I think at some point later in the case, he said that, or in his legal defense turned on the fact that he actually came up with this idea when he was on a break from Mattel a couple years earlier. So this idea, when you’re an employee to go into the legal aspects of things, since this is a legal podcast, when you’re an employee working within the scope of your employment, generally, whatever you come up with is owned by your employer. Copyrights, trade secrets, you know trade secrets are also something that if you’re working for the company, they own it, right? Like anything you’re doing and then any written work product or designs or things like that. You’re working for the company. They own it. It’s called the “Work for Hire” doctrine. Otherwise, you’d have to create assignments for everything you do and it would be very cumbersome. And so, Mattel’s arguing that Carter came up with this while he was working for Mattel, and you can’t just like take this and go start another company.
Trisha Rich: But not just, sorry, not just working for Mattel, right? Like working on the Barbie line.
Alexis Crawford Douglas: But like working on Barbie. Yeah, yeah.
Trisha Rich: Creating Barbie clothes for Mattel, right?
Alexis Crawford Douglas: Creating like a competitive, grumpy Barbie, version of Barbie. And yeah, they claimed that MGA Entertainment, who came up out with the Bratz dolls infringed Mattel’s copyright by producing those dolls. It looks like on appeal they challenged the jury’s verdict also that Mattel misappropriated MGA’s trade secrets. There was a lot of back and forth on that but there was a really large jury award for an infringement copyright. Infringement was found or they found copyright infringement. And then there’s some back and forth about attorney’s fees and costs and things like that. But there are two sort of competing IP issues going on in that case but it’s interesting, it was gutsy of them right to come up with another line when he’d been working there. Usually if somebody came to me with a case like that, I’d be like, eh, what’d you do?
Trisha Rich: You know, the thing that I think is fascinating about it really is that like, you have Mattel, right? They come up with a doll that’s substantially similar to another doll that exists in the world. They defend a lawsuit against it. Then they turn around and they have like decades of very aggressive litigation on it, and you see things like they sue Aqua over the song, but then they don’t sue, ever sue Nicki Minaj, and then they remake the song, put it in their movie, they sue over the Bratz dolls but the Bratz dolls have a very prominent place in their movie and it’s like a wink wink to the people that are in the know here. And so it’s like they’re doing both all of the protective things and then they’re actually using those same things in the movie which I think is quite interesting.
Alexis Crawford Douglas: I think where the where the movie gets away with it is that the movie was done by Warner Brothers, right? And it’s not Mattel’s movie so it’s an artistic work. And so, you can make an homage to something else or a wink, wink, nudge, nudge these might be the Bratz dolls over here and make people think about it and juxtaposing those two ideas against each other. I feel like the movie did that. They did that well. I have to say, I’m sure if the Aqua song was in the movie, there was probably some like, you do have to pay like a fee to perform music, other people’s music. So that’s not total fair use. I’m sure.
Maggie Mendenhall Casey: It also seems like just some basic strategy, right? First you try to squash your enemies, neutralize them by that way and if you can’t do that, then you appropriate them and bring them in. And so, with the Bratz, we’re bringing them in, with Aqua we’re bringing them in, strategy. I love a little bit of strategy.
Alexis Crawford Douglas: Yeah, right. I mean, in these kinds of cases, this whole area is a lot of strategy and there’s a lot in the high IP world. There’s contentious stuff but usually work it out, like people work it out. Like, how can we work together? How do we figure things out unless you really hate them and then you’re like, I want nothing to do with them but there’s often avenues for that kind of amicable, let’s both help each other sort of thing.
Trisha Rich: Yeah, well it’s interesting because it’s like, I’ve read a lot about this movie, I’ve seen a lot of interviews with Greta and Ryan Gosling and with Margot Robbie and one of the interviews I saw with or read with Greta Gerwig, she was saying, you know, they’d sit down with the people from Warner Brothers, they’d sit down with the people from Mattel. I’m paraphrasing, but she said there were so many objectionable things in the movie that both Mattel and Warner Brothers could take aim at.
She said it was almost overwhelming and they couldn’t ever point to just one thing, and she thinks she benefited as a result of that. Because they got through so many things including now this very — this joke that’s become very famous about Barbie being a fascist, right, and like Mattel and Warner Brothers signing off on that.
Alexis Crawford Douglas: I’m using Matt term, yeah.
Trisha Rich: Yeah, is really, really remarkable. I mean, it’s an incredible work of art. I think only Greta Gerwig could have made it. I think it’s Margot Robbie, right, Alexis said she spent years trying to get this done.
Alexis Crawford Douglas: Or maybe —
Trisha Rich: But it’s really something. It’s really something to sit in the movie theater and watch it and know that this is a little bit different than the image that Mattel has been trying to put out about Barbie since the 50s.
Alexis Crawford Douglas: Yeah. You know, I think, I don’t know. As a feminine, you mentioned my history with the CBA of the Women’s History Month. I was a raging feminist. I’d say I loved it. I loved it. I was like, this is great. I hadn’t even thought of like the world where Barbie is everything. She can be everything and that was the intent behind the dolls that has sort of over the — I guess the Bratz Girls called that outfit. It’s making people feel like they should do more. But it was empowering and how often do you see a movie that’s so — it kind of gives you chills and you’re like, oh my gosh, the whole Supreme Court’s women? That’s awesome. I was feeling kind of inspired, honestly.
Trisha Rich: I really loved the opening, not the opening scene, which was an ode to my husband’s favorite movie, 2001 Space Odyssey, which was great. The opening scene in Barbie World, where the women are getting their Nobel prizes and every one of them gets up and says, “I earned this. I’m getting this award because I deserved it, because I worked hard,” which if you go to any event where a woman’s getting an award ever, they’re so quick to say like, it was a team effort and it’s not my war. There’s a lot of luck that came into this or whatever, and there were so many big and little things like that throughout the entire movie that make it just like this really incredible statement about the way women are in the world and the way woman could be and like what Barbie thought it was doing and where we are.
Alexis Crawford Douglas: Yeah.
Trisha Rich: But with that Alexis, I do think we have to call it a day. Thank you so much for coming. We are going to take our last break and then we are going to be back for Stranger Than Legal Fiction.
Okay, and we are back for our third and final segment. Alexis, you have co-hosted the pod before so you know what we’re about to do. But this is our last segment where Maggie and I have researched and verified a couple of laws. Each one that’s real one that’s false. So we’re going to quiz you and each other. This is a high-stakes game. There is a lot of — there’s a lot of CBA podcast pride that goes into the person that wins.
Alexis Crawford Douglas: I’ve listened over the years, so I know. I’m nervous.
Trisha Rich: You’re ready? All right.
Alexis Crawford Douglas: I’m ready.
Trisha Rich: Maggie, do you want to kick us off?
Maggie Mendenhall Casey: Sure, Trish. So, you know, I always like to kind of switch it up when we do our Stranger Than Legal Fiction. I have a question that is patent related. I’m going to give you a true or false. So, only one —
Alexis Crawford Douglas: I’m not patent attorney.
Maggie Mendenhall Casey: It’s okay, it’s okay. I think you have this, Alexis. So, only one U.S. president has obtained a patent. Which of the following statements is true and which of the following statements is false? Abraham Lincoln received a patent for a device to lift boats over river obstructions or James Madison received a patent for swim fins. Which one is true? Which one is false?
Alexis Crawford Douglas: I’m going to go with the swim fins because I actually don’t know. I haven’t heard this one.
Maggie Mendenhall Casey: You think swim fins is true?
Alexis Crawford Douglas: I’m going to go with swim fins, yeah.
Maggie Mendenhall Casey: Okay. Trish? Ms. Rich?
Trisha Rich: So I’m a diver, and I don’t know a lot about the history of diving. But I sort of think that if Madison invented some version of swim fins, I would have — I think I would know about that.
Alexis Crawford Douglas: Would have heard about it?
Trisha Rich: You know.
Alexis Crawford Douglas: See, you’ve got some basis. I’m like I have no idea.
Trisha Rich: Yeah. But possibly not, you know, I got a lot going on. I’m going to go with my boy Abe. It’s hard for me to believe that he was around a lot of rivers, but he seemed like an industrial guy. I think he worked on a riverboat. So, I’m going to go with that one.
Maggie Mendenhall Casey: Okay. So, in this case, Ms. Rich is correct.
Alexis Crawford Douglas: See, I’m not a patent attorney. I have no idea.
Maggie Mendenhall Casey: You’re an attorney, you’re a patent historian. Two different things.
Alexis Crawford Douglas: Right. That’s true, that’s true.
Maggie Mendenhall Casey: So, Lincoln was at times a patent attorney and he was familiar with the patent application process. He did come up with this device for lifting riverboats but it was never produced for practical use. Benjamin Franklin, who famously refused to patent his inventions, created a number of unique inventions including swim fins and bifocals.
Alexis Crawford Douglas: See, I knew the swim fins or somewhere. I feel like I’ve heard of that somewhere.
Trisha Rich: I mean they definitely exist.
Alexis Crawford Douglas: That’s a good one, Maggie, yeah.
Trisha Rich: That was great. Okay, so I am going to take us further away than Springfield, Illinois. So, this is number one. In Switzerland, it is illegal to own only a single guinea pig. Or, number two, in Switzerland, the Air Force is not legally allowed to fly after 5:00 p.m.
Alexis Crawford Douglas: You know, a guinea pig. So you can’t have one, you need multiple of them. That seems maybe to keep the family together.
Trisha Rich: The guinea pig family.
Alexis Crawford Douglas: But then I know how the Europe has a lot better labor laws than we do, and they less, so it seems a little bit more. Or at least those that project people’s weekends, you hear about the email. Like the kids sent emails on the weekends or evening, which would be really nice some days in my practice working with like Australia, Europe, but how would you even enforce that?
Trisha Rich: I don’t know you’re talking about, Alexis. I love getting emails all weekend, all night.
Alexis Crawford Douglas: All weekend, all night, like you —
Trisha Rich: Yeah. It’s my favorite. On holidays, send them, guys.
Alexis Crawford Douglas: You go to bed emailing Australia, wake up to the Europe emails. It’s like, great. So, I’m just going to go with the 5:00 p.m. answer because I just want it to be bad.
Trisha Rich: Okay. So, you’re saying the second one is true, the first one is false. Maggie, what say you?
Maggie Mendenhall Casey: I’m going to say that the first one is false. I don’t really think that they have like anti-guinea pig cruelty law. That’s so specific. And the latter one, the second one is true, but Alexis, I’m with you. I always get it wrong. So, we’ll see.
Trisha Rich: Well, today is not your day, Maggie. You always got it wrong again.
Alexis Crawford Douglas: Oh, no. What?
Maggie Mendenhall Casey: Both of us.
Trisha Rich: Alexis do, too.
Maggie Mendenhall Casey: You got them all wrong. No, if you’re not coming back.
Trisha Rich: So, they do have, Meggie, in exactly the opposite of what you just said. They do have a law that protects owning just a single guinea pig. And it’s not just guinea pig though. It also applies to llamas, horses, goldfish and something called a budgie. Do either of you know what that is? I had to look it up.
Maggie Mendenhall Casey: No.
Alexis Crawford Douglas: No.
Trisha Rich: It’s a nickname for a certain kind of bird. But the idea is a few years ago, Switzerland updated a number of laws and put into place some laws to protect animals, and this was one of them. And the thought behind it is that guinea pigs, horses, goldfish, et cetera, are all social animals and do not do well when they are alone.
Alexis Crawford Douglas: Oh. So, that’s kind of what I was thinking. Yeah, keeping it together. Being with somebody. Okay. See, I should have just gone with my gut and like family focused idea.
Trisha Rich: So, Switzerland says that it’s a form of abuse if you have one of these animals alone. So, it’s an animal abuse law. So, that became a law. They also enacted a couple of other interesting laws in that same timeframe including that if you have a dog, if you own a dog, all dog owners are required to take a course that teaches you how to take care of your dog. And one that I thought was kind of interesting, if you are a fisherman, you are required to complete a course that talks about and teaches who about humane fishing techniques. And so, this was part of a package of laws that Switzerland passed a few years ago related to animal safety and animal cruelty and comfort.
The Air Force not being allowed to fly after 5:00 p.m., which I just thought was kind of funny because like, you know, so if there’s an emergency, they’re going to be out, right? I guess.
Alexis Crawford Douglas: Yeah, obviously, right. You’re going to have to. I just was caught up in the email, selfish focus here.
Trisha Rich: So that was a law until 2015.
Alexis Crawford Douglas: Oh, see.
Maggie Mendenhall Casey: Okay, we’re not so bad.
Trisha Rich: The hours of operation for the Air Force were 8:00 a.m. to 5:00 p.m. So not terribly dissimilar than what you’re talking about with labor laws. And also, I assume noise ordinances. But in 2015, they extended the hours for the Air Force. They can now fly from 6:00 a.m. until 10:00 p.m.
Alexis Crawford Douglas: How is that better? See, we’re all — it’s all encroaching into all of our lives. It’s like work all the time. That’s okay. It’s fine. We like what we do.
Trisha Rich: So, Alexis, I’m sorry that you did not win Stranger Than Legal Fiction. You do not get all the bragging rights of the podcast. But we love to having you. That is our show for today. Thank you so much for your time and this interesting conversation. I also want to thank, of course, Maggie, for being here today, and being a valuable member of our podcast crew and Executive Producer Jennifer Burn for the work she does behind the scenes that makes this machine work. As always, huge thanks to Adam Lockwood on sound engineering and to everyone in the Legal Talk Network family. They’re truly the very best in the business and we are humbled and grateful every day to be able to work with them.
Remember, you can always follow us and send us comments, questions, episode ideas on Facebook, Instagram, Twitter, or as I think we call it now X at cba@thebar. Please rate and review us, leave us your feedback on Apple podcast, Google Play, Overcast, Spotify or wherever you download your podcast. It always helps us get the word out. And until next time from everyone here at the Chicago Bar Association, thank you for joining us and we will see you soon At The Bar.
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