Jury finds in favor of toymaker MGA in trial with T.I. and Tiny Harris over OMG Girlz, OMG dolls
Jurors deliberated about two hours before rejecting all claims following a 10-day trial.
A jury on Friday found in favor of toymaker MGA Entertainment in $100 million in claims brought by hip-hop moguls T.I. and Tiny Harris over the L.O.L. Surprise! O.M.G. Dolls and the music group the OMG Girlz.
The eight jurors took less than two hours to conclude that the 31 dolls at issue don’t infringe the trade dress or misappropriate the likeness of the OMG Girlz, a trio that included Tiny’s daughter Zonnique Pullins.
The group disbanded in 2015, but lawyers for T.I. and Tiny argued the group continues to have a unique trade dress involving vibrant hair color, experimental and urban outfits and the name OMG Girlz. They claimed MGA styled some dolls on outfits worn by Zonnique and the other OMG Girlz members, Bahja Rodriguez and Breaunna Womack, including during a 2017 New Year’s Eve show.
MGA CEO Isaac Larian told reporters after the verdict that he took the case to trial to protect his employees and their creativity.
“We have dozens of great, great, creative people at MGA who work with their heart, who work with their passion to make incredible products. ... I did this case for them, to protect creativity. So people don’t come and try to hustle you, to try to do a shakedown and get money for something they had nothing to do with,” Larian said.
He said the verdict brought mixed feelings.
“I’m not happy because I wasted a lot of time, energy — my employees’ time, energy — to deal with an extortion. They knew from the beginning they don’t have a case, and they brought it anyways. And they picked on the wrong guy,” Larian said.
Asked how he planned to celebrate, Larian said, “I’m going to go buy a yellow dress and color my hair pink.”
T.I. and Tiny left the courthouse with Zonnique, Bahja and Breaunna and did not speak with reporters. They were joined by their youngest daughter, Heiress, and Tiny’s mother, Dianne Cottle-Pope.
Update: T.I. spoke with one person outside the courthouse after the verdict. He said he was “proud of the girls. I’m proud of my wife. I’m proud of the team of attorneys, and the paralegals, and everyone who came together for the right cause.”
“You can’t just lay down and take it. If you see, feel, believe and know for a fact that your intellectual property has been infringed upon, that your rights have been violated, you go through whatever means you can to take it as far as you can to defend yourself, your honor and protect your rights. That’s strength. I’m not discouraged because I know from which my blessings come. And with or without that, we gonna be straight,” he said.
Their lawyer John Keville said outside the courthouse that the verdict was “very tough” but that he would pursue post-verdict litigation.
Keville also said the case is about protecting creativity, telling jurors in his closing argument, “This case is about whether a big company can infringe the creative works of others…that they think are small, that they think are not famous enough, that they think won’t be able to fight the billion-dollar company.”
MGA’s lawyers argued the OMG Girlz had no unique trade dress and were trend followers who embraced hair colors and fashions that were popularized long before them.
This is how the jury instructions defined the trade dress:
MGA’s lead lawyer Jennifer Keller of Keller/Anderle LLP in Irvine, California, repeatedly told jurors the case was a “shakedown” and “extortion,” and Larian reiterated that during a feisty witness stand appearance in which he was repeatedly admonished to answer the question and not add his own comments.
Keville questioned Larian about MGA’s own approach to litigation, including its famous legal battle with rival Mattel Inc., over the Bratz and Barbie dolls.
Larian, an Iranian immigrant who built MGA from scratch and is now a billionaire, said Barbie v. Bratz is distinct from his battle with the OMG Girlz.
“One is copyright. One is an extortion case, where your client lied and said that we were trying to do a license with them. And none of our dolls look like your characters,” Larian said.
He was referring to the cease-and-desist letter in which Tiny claimed to have been approached about a possible licensing deal with the OMG Girlz while at a Bratz event in Atlanta, Georgia. Tiny testified that she knows she talked to someone but can’t remember who, but Larian said she was lying.
Larian testified that he planned to ask for the Harrises to play his attorney fees if he won. It apparently resonated with jurors: Before they reached their verdict, they sent a note asking if they could order the losing side to pay the winning side’s attorney fees. Senior U.S. District Judge James V. Selna told them it wasn’t an issue for them to consider. They reached a verdict about 10 minutes later.
“When the jurors were leaving, they told one of my attorneys, ‘Tell Mr. Larian we wanted to give him his legal fees, but it was out of our hand,’” Larian said, estimating his fees at “millions of dollars.” Larian prevailed with his attorneys fees covered in Barbie v. Bratz, in which Keller was one of his attorneys and Selna’s colleague U.S. District Judge David O. Carter was the trial judge.
Larian initiated the litigation against T.I. and Tiny after he received their cease-and-desist letter, filing a complaint that sought declaratory relief regarding any possible infringement claims from the OMG Girlz.
The trial that ended Friday was the second trial. The first trial ended in a mistrial after jurors hearing deposition testimony about cultural misappropriation and companies stealing from Black people. Going into the re-do, Selna barred MGA from asking about profane rap lyrics and other unsavory background regarding T.I. and his family, outside limited questions to a doll designer. The decision followed controversy over Keller’s cross-examination of Zonnique in the first trial about her use of the n-word.
The jury sat for 11 trial days beginning May 9, including a marathon Thursday session that ended 45 minutes later than usual. Judge Selna warned the attorneys early in the day, “I think, collectively, the parties are beginning to test the patience of this jury.”
The $98 million damages request ranged to about $330 million and was based on revenue reports from MGA regarding the dolls.
There were four men and four women on the jury, of various ages and ethnicities. One man told lawyers after the verdict that they found the testimony of MGA doll designers Blanche Consorti and Lora Stephens compelling.
Keville’s cross-examination of Consorti revealed a photo of T.I. on a design board after she’d repeatedly testified that she never used the Harrises as creative inspiration.
But MGA lawyer Chase Scolnick emphasized in re-direct that MGA isn’t accused of anything involving T.I., only the OMG Girlz. Jurors after the verdict noted the lack of OMG Girlz references on any of the design documents.
Keville’s case put Consorti and Stephens’ credibility at issue, but jurors said they believed they were sincere, passionate creators who truthfully testified they weren’t influenced by the OMG Girlz when designing the 31 dolls that survived a summary judgment order and went to trial.
Keville reminded jurors in his closing argument about Larian’s approach to Mattel in Barbie v. Bratz and his different standard now when he denies any similarities between the OMG Girlz and the dolls. He showed jurors a comparison photo from Barbie v. Bratz of a Bratz dog and a Mattel dog that appeared more different than the similarities between some of the dolls and certain photos of the girls.
“The standard that they’re trying to apply is not the standard that they apply when they’re suing others,” said Keville, managing partner of Sheppard, Mullin, Richter & Hampton LLP’s Houston, Texas, office.
Keville also repeated what he said in his opening statement about MGA’s case being about “deny, district and demean.” In his rebuttal, he cited what Keller said in her closing about Womack, who joined the OMG Girlz after responding to an online audition call. Zonnique had the backing of her famous mother and step-father, but Womack was “plucked out of obscurity.”
“She’s not a child of well-known people or people who have a lot of money. She’s from Mobile, Alabama,” Keller said. “I actually felt sad hearing her testify, because she readily admitted that she’s hoping they’ll get back together. Because her coach turned into a pumpkin. I mean, they just cut her loose, and she went back to where she came from. It’s just sad.”
Keville said Keller’s comments about Womack were an example of her being demeaning.
“Breeuna Womack is doing well for herself. She’s a very successful young woman, and She’s not this sad person Ms. Keller made her out to be,” Keville said.
In her closing, Keller gave jurors a hypothetical of Mattel making a doll called “Barbie’s attorney friend Jennifer” and described the doll as wearing what she was wearing.
“So I guess if Mattel puts out Barbie’s attorney friend Jennifer, I can sue for trade dress engagement if you follow what the OMG Girlz’s counsel is telling you,” Keller said sarcastically, adding, “How is that trade dress and how would that be protectable?
“It would be crazy to allow everybody in that situation to claim protectable trade dress,” Keller said. She referenced a jury instruction that specifics a trade dress requires secondary meaning and that a significant number of the consuming public associates the trade dress with the OMG Girlz.
T.I. and Tiny’s lawyers called four witnesses who said they bought the dolls believing they were associated with the OMG Girlz. They got involved in the case after responding to an Instagram post from Tiny.
MGA, meanwhile, had an expert present a market survey that found there was zero chance of confusion between the OMG Girlz and OMG dolls.
“There are very few people out there who have heard of the OMG Girlz, and they have been defunct for eight years,” Keller told jurors.
Previous coverage:
May 26: 'Extremely disturbed': Judge calls out MGA's lawyers for accusations against T.I.'s lawyers
May 22: Doll designer breaks down after cross-exam about 'lingerie-gate', Marilyn Manson's Nazi cap
May 18: ‘Humor, sarcasm and satire’: Rapper T.I. testifies in civil infringement trial over dolls, OMG Girlz
May 15: Racial issues still lurk in toymaker’s new trial with T.I. and Tiny Harris over OMG Girlz and dolls
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