When Barbie Went to War with Bratz (2024)

Bratz dolls have swollen heads, pouty lips, spindly limbs, and chunky-heeled shoes. Their waists are barely wider than their necks. Their eyes and heads are so big and their noses so small that if it weren’t for their Penthouse makeup (icy eyeshadow, cat-eye liner, glistening lip gloss, and eyelashes as long as their fingers) and their come-hither clothes (crop tops, hot pants, microminis, and kinky boots), they’d look like emaciated babies, Kewpie dolls in a time of famine. Carter Bryant was thirty-one and working at Mattel in August of 2000, designing clothes for Barbie, when he created Bratz, though he later said—and his legal defense turned on this claim—that he’d got the idea for the dolls while on a seven-month break from Mattel, two years earlier. He drew some sketches of clothes-obsessed, bratty-looking teen-agers—“The Girls with a Passion for Fashion!” he called them—and made a prototype by piecing together bits and bobs that he found in a trash bin at work and in his own collection at home: a doll head, a plastic body, and Ken boots. He meant for his Bratz to come in pick-your-own skin colors and to have monetizably vague ethnic names. Two weeks before Bryant quit Mattel, he sold his idea to a Mattel competitor, MGA Entertainment, which brought out four Bratz girls in 2001—Jade, Cloe, Yasmin, and Sasha—the first dolls to successfully rival Barbie since she made her début, in 1959, in a zebra-striped swimsuit and stilettos, eyebrows arched, waist pinched.

Mattel sued Bryant; Mattel sued MGA; MGA sued Mattel. In the course of years of legal wrangling, hundreds of millions of dollars changed hands, but I’m afraid I couldn’t possibly tell you exactly how much because, as talking Barbie used to say, her pull string wriggling, “Math class is tough!”

The feud between Barbie and Bratz occupies the narrow space between thin lines: between fashion and p*rn, between originals and copies, and between toys for girls and rights for women. In 2010, Alex Kozinski, then the chief judge of the U.S. Court of Appeals for the Ninth Circuit, who presided over Mattel v. MGA, wrote in his opinion that most of what makes a fashion doll desirable is not protectable intellectual property, because there are only so many ways to make a female body attractive. “Little girls buy fashion dolls with idealized proportions which means slightly larger heads, eyes and lips; slightly smaller noses and waists; and slightly longer limbs than those that appear routinely in nature,” Kozinski wrote, giving “slightly” a meaning I never knew it had. But only so much exaggeration is possible, he went on. “Make the head too large or the waist too small and the doll becomes freakish.” I’d explain how it is that anyone could look at either a Barbie or a Bratz doll and not find it freakish, except that such an explanation is beyond me. As a pull-string Barbie knockoff once told Lisa Simpson, “Don’t ask me! I’m just a girl!”

Orly Lobel, a professor at the University of San Diego School of Law, has recently published “You Don’t Own Me: How Mattel v. MGA Entertainment Exposed Barbie’s Dark Side” (Norton). For the book, a hair-raising account of a Barbie Dreamhouse-size Jarndyce and Jarndyce, Lobel interviewed Judge Kozinski over lunch and happened to mention that, when she was a girl, her mother, a psychologist, told her that Barbie dolls were bad for girls’ body image. Kozinski professed astonishment. “The only thing wrong that I saw when I held Barbie,” he said, joking, “is when I lift her skirt there is nothing underneath.” Last month, Kozinski resigned from the federal judiciary after more than a dozen women, including two of his own former law clerks, accused him of inappropriate behavior. Justice is hard!

Before Barbie, dolls were babies, to be fed and burped and bathed and wheeled around in prams and put down for naps. Barbie, who has hips and breasts, was a ripoff of a magnificently racy German doll called Lilli. Lilli was inspired by the title character in a Playboy-style comic strip; she works as a secretary but is usually barely dressed, like the time she shows up at the office in a bikini. “So dumb!” she says. “When I wake up in the morning, I think I’m still on vacation!” (“Gentlemen prefer Lilli,” her slogan went.) Ruth Handler, who co-founded Mattel with her husband in 1945, bought more than a dozen Lillis while on a tour of Europe with her children Barbie and Ken in 1956. She had the dolls shipped back home to California, and charged the Mattel designer Jack Ryan, a lesser Hugh Hefner, with making an American Lilli. Handler’s husband declared that she was “anatomically perfect.” Mattel introduced its doll as Barbie, Teen Age Fashion Model.

Ruth Handler elaborated on Barbie’s German origins only after Ryan, a man she called “the world’s greatest swinger,” began claiming that the idea for Barbie was his, not hers. (“He couldn’t think of anything original,” Handler said about Ryan, “but once you led him, and said what he should make, then he figured out how to make it happen.”) Handler said she named the doll after her daughter, but Ryan insisted that he was the one who named her, after a different Barbara, his wife. (Another of Ryan’s five wives, Zsa Zsa Gabor, claimed, after divorcing him, that she hadn’t been able to bear the fur-lined sex dungeon in his Bel Air mansion.) In 1961, Lilli’s manufacturer sued Mattel, charging that the company had copied Lilli “one to one,” having modified her “only very slightly; et voilà, Barbie was created.” Handler liked to say that Lilli was a freak, that she had an “elongated and distorted kind of look,” while Barbie was entirely natural. “I wanted an American teen-ager, but I wanted a narrow waist, narrow ankles, and boobs,” Handler said. In fact, the two dolls are nearly identical. Mattel settled the case out of court, and bought Lilli’s copyright in 1964. In 1978, Handler, having been investigated by the Securities and Exchange Commission, was indicted for fraud; she maintained her innocence but pleaded no contest. Two years later, Ryan sued Mattel; Mattel settled. In 1991, after suffering a stroke, Ryan shot himself in the head. Handler, who, after battling breast cancer, had founded a company, Nearly Me, that made prosthetic breasts, died in 2002, the year Bratz won the Toy of the Year Award.

Notwithstanding her lurid origins, Barbie was the world’s top-selling toy for girls for a half century. Mattel is believed to have sold nearly a billion Barbie dolls. Sales have lately been falling (despite Mattel’s introduction, in 2016, of “body diversity” Barbies that come in different sizes, shapes, and colors). Still, nine in ten American girls between the ages of three and ten own at least one Barbie doll, and, even without counting those buried in landfills, there might well be more Barbies in the United States than there are people.

Barbie is both a relic from another era and a bellwether of changing ideas about women and work, sex, and men. Her 1959 début coincided with the release of the erotically charged film “Pillow Talk.” Doris Day, who looks something like Barbie, plays an extravagantly fashionable interior decorator obliged to share a party line with a rakish playboy (Rock Hudson). They flirt over the phone. “This career girl had everything but love,” the film’s trailer announced, introducing “the most sparkling sexcapade that ever winked at convention.” The playboy has a switch in his apartment with which he can lock the door from the couch, so that his dates can’t escape. The interior decorator, who fends off all manner of advances from her clients, wants nothing more than to be carried into the playboy’s lair. (Much of the winking at convention had to do with Hudson’s sexuality: at one point, he plays a straight man pretending to be a gay man; at another point, he is taken for a pregnant man.)

In 1961, Barbie began dating Ken, a Rock Hudson look-alike named after Ruth Handler’s son. Their sexcapade sparkled. “I have a date tonight!” an early talking Barbie said in 1968. “Would you like to go shopping?” Originally marketed to girls between the ages of nine and twelve, the career girl and her beach-blanket-bingo boyfriend weathered the women’s movement and the sexual revolution by appealing, each year, to younger and younger children, which also made Barbie appear, each year, older and older. By the nineteen-nineties, when three out of four women between twenty-five and fifty-four worked outside the home and Mattel was taking in a billion dollars annually in Barbie sales alone, Barbie had become a plaything for three-year-olds—girls who wore footie pajamas and pull-up diapers and who drank out of sippy cups, girls who were still toddlers. Barbie wasn’t their baby; Barbie wasn’t the teen-ager they wanted to grow up to be; Barbie was their mommy.

If “Pillow Talk” marked the advent of Barbie, the movie version of “Bridget Jones’s Diary,” released in theatres in 2001, marked the début of Bratz. At a failing London publishing house, another career girl, played by Renée Zellweger, works for Daniel Cleaver, played by Hugh Grant. Much of their office flirting, conducted not by telephone but by e-mail, concerns her clothes: microminis and see-through blouses—Bratz clothes.

Daniel: If walking past my office was attempt to demonstrate presence of skirt, can only say that it has failed parlously—Cleave.

Bridget: Shut up, please. I am very busy and important. P.S. How dare you sexually harass me in this impertinent manner?

Daniel: Message Jones. Mortified to have caused offense. Will avoid all non-P.C. overtones in future. Deeply apologetic. P.S. Like your tit* in that top.

MGA sold ninety-seven million dollars’ worth of Bratz dolls in 2001 and a billion dollars’ worth in 2003. Mattel began to panic. To the press, as Lobel recounts, Isaac Larian, MGA’s C.E.O., offered all sorts of explanations about where the idea for Bratz had come from, including from a focus group or from his daughter, Jasmine. Eventually, according to Lobel, an anonymous letter tipped Mattel off to the truth: Bratz had been created not by Isaac Larian or by any of his children but by Carter Bryant, who, when he was hired by Mattel, had signed an intellectual-property agreement: everything he created during his employment at Mattel, it said, belonged to Mattel.

“What does it mean to own an idea?” Oren Bracha, a professor at the University of Texas School of Law, asks in “Owning Ideas: The Intellectual Origins of American Intellectual Property, 1790-1909” (Cambridge). Intellectual property takes the form of patents and copyrights, legal instruments derived from the practices of fifteenth-century Italian republics. In Anglo-American law, the first patents and copyrights were issued in the sixteenth century, although they weren’t rights; they were privileges, favors granted by the crown, such as the patent that Elizabeth I granted to Sir Walter Raleigh in 1584 for the “discoverie” of Virginia and to “Have holde & enjoye the saide Land,” or the copyright that James I granted in 1611 to printers of what became known as the King James Bible. As Bracha points out, early patents and copyrights were not understood to involve ideas. That transformation came in the course of the eighteenth century, when the courts began to understand ideas as things that could be owned and ownership of them as having the characteristics of property rights.

In 1787, patents and copyrights had only lately taken on this meaning and force in English common law when the U.S. Constitution granted Congress the power “to promote the progress of science and useful arts by securing for limited times to Authors and Inventors the exclusive rights to their respective writings and discoveries.” In the late eighteenth century, a property in ideas came to rest in authors and inventors, on the theory, foundational to possessive individualism, that the act of creation is the act of an individual. Not everyone agreed with this premise, which pits the property rights of authors and inventors against a public interest in books and inventions. Benjamin Franklin famously refused to patent any of his inventions, on the ground that, he explained, “as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours; and this we should do freely and generously.”

Few followed his lead. Instead, nineteenth-century Americans “democratized invention,” according to the economist Zorina Khan, granting to ordinary people, as a universal right, what had once been a privilege granted to an élite few. They also adopted a Romantic notion of authorship—fetishizing the originality of the fevered, Byronic genius—though jurists like the Supreme Court Justice Joseph Story found the standard of unstained originality all but useless for adjudicating copyright disputes. “No man creates a new language for himself, at least if he be a wise man,” Story wrote. “Virgil borrowed much from Homer... and even Shakespeare and Milton, so justly and proudly our boast as the brightest originals, would be found to have gathered much from the abundant stores of current knowledge and classical studies in their days.”

The reason to protect a property in ideas, at least originally, was to promote creativity both by rewarding authors and inventors for what they do and by, after a fixed time, releasing their ideas to the world. The standard of originality in intellectual property has, historically, been low, because everything, to some degree, copies at least part of something else. Good ideas are cobbled together out of other ideas, even bad ideas, and, for people to keep having new ideas, old ideas have to be set free. As Louis Brandeis explained in 1918, “The general rule of law is, that the noblest of human productions—knowledge, truths ascertained, conceptions, and ideas—become, after voluntary communication to others, free as the air to common use.”

The reign of authors and inventors began coming to a close in the eighteen-eighties, with the rise of corporate liberalism. Authors and inventors there might still be, but, when they were employees, their employers owned their ideas. Corporate ownership of ideas, the dramatic extension of the terms of copyright, and a wild expansion of what counts as protectable intellectual property have together undermined the original purpose of intellectual-property law. Nine out of ten patents granted in the United States are now owned by corporations. Congress passed ten copyright-extension acts in the course of the twentieth century; copyright now lasts for seventy years after the death of the author. Corporations have attempted to claim exclusive legal rights to everything from yoga moves to genetic sequences. LucasFilm, George Lucas’s company, sued two lobbying groups over the use of the phrase “star wars” to refer to the Reagan Administration’s proposed missile-defense system, and licenses the word “droid” to Verizon, even though it was coined in the nineteen-fifties, twenty years before LucasFilm used it in “Star Wars.” By the nineteen-nineties, especially after the passage of the soi-disant Mickey Mouse Protection Act, in 1998, a growing number of legal scholars had begun to question the basic assumptions of intellectual-property law, wondering whether it has ever done what it was meant to do. Insisting on a “freedom to copy,” they argued that the private rights of corporations were overrunning the public interest.

“The central narrative of intellectual property law, that legal protection against copying is necessary in order to promote creative behavior, has been subjected to surprisingly little scrutiny,” Kate Darling and Aaron Perzanowski observe in “Creativity Without Law: Challenging the Assumptions of Intellectual Property” (New York University), a new collection of essays that looks at creative artists whose work has thrived outside the regime of intellectual property—including chefs, bartenders, p*rnographers, and tattoo and graffiti artists. Tattoos are protectable intellectual property, but nearly all tattoo artists operate outside that legal realm, following, instead, a set of industry norms. p*rnography, which has historically been the first to adopt and adapt to new technologies, is generally lax about copyright enforcement and has instead devised a new business model, based on sharing not content but experiences. By operating outside intellectual-property law, each of these industries has thrived, both creatively and economically. A counter case could be made that industries that are vigilant about copyright infringement—action-figure franchises, say, or television sitcoms—may have made a lot of money for the corporations that own them, but the results have not generally been distinguished for their creativity.