Commentary: Make sure that gray area is yours, not theirs
Bratz-Mattel case proof it's tough to take a stand using someone else's legsA question for aspiring filmmakers: Who do you think owns that groundbreaking screenplay you've been hammering out on your lunch breaks? What about the short film you spend your nights and weekends shooting? If you've got a day job in the industry, the answer might be the very boss you've been developing your dream project to escape.
Work-for-hire disputes don't often rise to lawsuits in entertainment, but a cautionary tale is currently unfolding in a month-long copyright trial in Riverside, Calif. Mattel, maker of the venerable Barbie, claims that a former hair and fashion designer came up with the concept for the sassy Bratz dolls while employed at the toy giant. Carter Bryant later took his ideas to MGA Entertainment, which analysts now say generates more than $2 billion a year from the navel-baring Bratz figurines -- at least $30 million of which Bryant has pocketed. Meanwhile, poor Barbie's sales have plummeted.
The Bratz trial has focused on Bryant's career path, which might sound familiar to some who trek west to give Hollywood a go. An aspiring songwriter, he ended up designing for El Segundo, Calif.-based Mattel from 1995-98 before retreating to his parents' house in Missouri, where he took a job selling hoodies at Old Navy. MGA argues that Bryant, now 39, drew key sketches of the hip-hop-flavored Bratz doll during this time. But he returned to Mattel in 1999 before defecting to MGA in 2000. It's during this second tenure that Mattel says Bryant developed Bratz, and that it is entitled to hundreds of millions of dollars in the fruits of its employee's labor.
Who's right? Lawyers have been fighting over the extent to which Bryant communicated with MGA before he decamped Mattel and whether he used a software program suspiciously called Evidence Eliminator to expunge damaging information from his laptop. But the case highlights a broader truth about work-for-hire law that some in the entertainment industry might find surprising. Namely, that even personal work performed outside the office can be considered property of your company if it's related to the job you were hired to do.
Copyright law is fairly clear on the subject. Works created by employees (not independent contractors) in the "scope of employment" are owned by the employer, who is considered the "author" of the work.
What constitutes the scope of employment? "That's a trickier question," Loyola Law School entertainment law professor Jay Dougherty says. Courts look at what the employee is paid to do, whether the work occurs mostly during business hours or at the office, and whether it's performed at least in part to serve the employer. A guy like Bryant, who was hired as a doll designer and ended up creating one of the most successful doll lines ever, has a tough argument. But other cases aren't as clear on where to draw the line. What about a development exec for studio blockbusters who decides to write a period-piece romance? "Or a secretary? Or an assistant at a film company? You can see how this analysis isn't simple," Dougherty says.
The major studios have long tried to eliminate ambiguity by making employees sign away ownership of the "rights and proceeds" of their work, including anything arguably related to their jobs. Author a children's book while employed in the film group at Sony and you're probably fine; write a kick-ass "Hancock" sequel and what's yours is likely theirs (or at least theirs to take a first look at). In fact, Bryant had just such a deal with Mattel, which explains why he reached a confidential settlement with his former employer last month after Judge Stephen Larson ruled that his exclusivity contract was valid (MGA continues to fight).
Absent an explicit agreement, or even with one in gray-area situations, work-for-hire law can lead to tense situations. In an industry in which employment can be casual and transient, and where today's mailroom clerk is tomorrow's six-figure writer, it's surprising more employees don't pay attention to the language they sign when taking a job. Conversely, smaller development companies that don't ask new employees to sign work-for-hire deals risk losing out on whatever brilliant idea is brewing in a worker's head.
Everyone benefits by negotiating language in employment agreement that spells what is and -- importantly -- what is not within the scope of employment. But of course, low-level workers at entertainment companies usually have the least leverage in negotiating that very language. And, as Bryant learned with his Bratz doll, entertainment conglomerates don't often play nice when real money is on the line.