Copyright law is no child's play as Bratz and Barbie battle it out

What the jury had to decide was exactly when Bratz was conceived. Only in California could you ask such a question? Not at all: the case has important lessons here too.

Bratz owes everything to her millionaire sugar daddy, Carter Bryant. He worked as a designer for Mattel, which makes Barbie, between September 1995 and April 1998. Bryant then took a few months off before going back to the drawing board from January 1999 to October 2000.

Shortly afterwards, he showed the first sketches of Bratz to Isaac Larian, who ran a small company called MGa.

On the advice of his daughter, Larian put Bratz into production. She is now thought to be earning him £250 million a year.

Like many employees, Bryant had signed an agreement giving Mattel rights to anything he designed while working for the company. He says Bratz was born during his summer break from Mattel in 1998. Not so, said the jury. Bryant was still working for Mattel when Bratz was drawn.

So does that mean Mattel is now entitled to the valuable Bratz franchise? Not at all, says Larian. "Carter Bryant did not have anything to do with the many Bratz-related products we created-such as Bratz Babyz, Lil' Bratz and Bratz Kidz". Or the spelling, one hopes.

Even so, shares in Mattel advanced in New York last week on the expectation the jury would decide that the MGa dolls embody one or more of the drawings that now belong to Mattel - which would make Bratz part of the Barbie family.

Robin Fry, an intellectual property specialist at law firm Beachcroft, points out that Mattel can rely on very wide copyright protection in the US for manufactured products.

"Provided Mattel can show there has been some access to the original designs by MGa, similarity is all that is needed," Fry adds.

English law, by contrast, sets a " crippling standard" for similar claims, he says. "To bring a claim for design infringement, businesses must show that the overall impression is the same and the design is not commonplace."

Procter & Gamble, which registered a distinctive "trigger" design for a spray-can room freshener, was unable to prevent a rival manufacturer from selling Airwick in a similar can. There were enough differences between the two designs, the Court of appeal decided last year.

Fry accepts that the current Bratz dolls have moved a long way from Bryant's original drawings. "But it's very difficult to run far enough away to stop legal claims," he continues. "Copyright protects substance and overall impression. Numerous small changes very rarely work."

The solicitor adds that the case of Barbie v Bratz should remind companies to tighten up their staff contracts. "Most employers use standard contracts that don't make it clear when something created by an employee is covered. For a creative business, this can be a dangerous policy."

Staff, too, need to be sure where they stand. "Just because you're working somewhere, it doesn't mean the business has rights to the novel you're working on," Fry says. "But if you're sketching in the park during your lunch hour, it may all be owned by the company."

Meanwhile, I have been designing a composite doll, with barbed tongue and brat-like appearance. I shall call it "Lawyer".