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Substantial Similarity

This guide illustrates the "substantial similarity" doctrine from U.S. copyright law, using a set of case summaries.

Mattel, Inc. v. MGA Entertainment, Inc., 616 F.3d 904 (9th Cir. 2010).

Facts

Mattel designs and sells the famous fashion doll, Barbie. Carter Bryant was employed at Mattel to work on fashion and hairstyle for high-end collectible Barbie dolls. During his time at Mattel, Bryant came up with the idea of Bratz dolls, “urban, multi-ethnic and trendy . . . dolls [with] attitude.” Bryant shared his “preliminary sketches, as well as a crude dummy” for Bratz dolls with MGA Entertainment. Later, while still employed at Mattel, Bryant created a sculpt of a Bratz doll for MGA. The court explained that “[a] sculpt is a mannequin-like plastic doll body without skin coloring, face paint, hair or clothing.”

Mattel filed state law claims as well as a copyright infringement claim against Bryant and MGA. In a summary judgment ruling, the district court held that the copyright in the sketches and the sculpt belonged to Mattel under Bryant’s employment agreement. The copyright claim went to trial, with the district court instructing the jury “that any ‘substantially similar’ Bratz doll infringed Mattel's copyrights in the sketches and sculpt.” The jury found that MGA had infringed and awarded damages of $10 million, far less than the $1 billion sought by Mattel. The district court then granted equitable relief, making its own infringement findings as to specific products. It found that the first four Bratz dolls created based on Carter’s sketches and many subsequent Bratz dolls created by MGA were substantially similar to the sketches and the sculpt and thus infringed Mattel’s copyright.

Court's Analysis

On appeal, the Ninth Circuit found that the scope of Bryant’s employment agreement should not have been resolved on summary judgment. The court also concluded that the district court could not reasonably have found that the “vast majority of Bratz dolls” were substantially similar to Bryant’s sketches, even if it could reasonably have found that some were.

The court discussed the copyright infringement issue, because if, on remand, the district court found Mattel held the copyrights to the sketches and the sculpt, the district court would again have to decide the issue of infringement.

The court noted that the district court erred in its decision on the scope of protection. In the extrinsic test, the court examines the relevant evidence to determine if the expressions get broad or thin protection. If there are many ways to express an idea, the court wrote, then the various expressions should get broad protection. Works that are substantially similar infringe. If there are only very limited ways to express an idea, then the expressions get thin protection due to merger. Quoting Satava v. Lowry, 323 F.3d 805, 812 (9th Cir. 2003), the court noted that in the case of ideas that can only be expressed in limited ways, the expressions would have to be “virtually identical” for the court to find copyright infringement. In the intrinsic test, the court applies the standard selected in the extrinsic phase.

The court first looked at Mattel’s claims based on the sculpt made by Bryant. Considering other depictions of young women with similar characteristics, the court stated that “[t]he concept of depicting a young, fashion-forward female with exaggerated features, including an oversized head and feet, is . . . unoriginal as well as an unprotectable idea.” The particular expression of the sculpt the sculpt was “highly constrained” because the exaggerations had to be attractive; the right features had to be exaggerated, to the right extent. Thus, the court held that the correct standard to apply was the “virtually identical’ standard.

The court then considered claims based on Bryant’s preliminary sketches. The court noted that “[u]nlike the limited range of expression for the sculpt, there's a wide range of expression for complete young, hip female fashion dolls with exaggerated features. Designers may vary the face paint, hair color and style, and the clothing and accessories, on top of making minor variations to the sculpt.” The court concluded that the right standard to apply was substantial similarity. However, the district court should not have compared unprotectable elements in its substantial similarity analysis. The court cautioned that “a finding of substantial similarity between two works can't be based on similarities in unprotectable elements,” such as ideas. Specifically, “MGA's Bratz dolls can't be considered substantially similar to Bryant's preliminary sketches simply because the dolls and sketches depict young, stylish girls with big heads and an attitude.” Otherwise Mattel would have “a monopoly over [unprotectable ideas, such as] fashion dolls with a bratty look or attitude, or dolls sporting trendy clothing.”