Orly Lobel, award-winning author of Talent Wants to be Free and the Don Weckstein Professor of Law at the University of San Diego, delves into the legal disputes between toy powerhouses to expose the ways IP is used as a sledgehammer in today’s innovation battles. YOU DON’T OWN ME is not just a thrilling story of business battles and courtroom drama, but the book brings a critical eye to our ideas about the American Dream, the rise of feminism, consumer psychology and the making of icons alongside betrayal, spying, and racism in the courtroom. Deeply researched, Lobel interviewed the major players, including the executives behind questionable corporate and legal strategies and the controversial appellate court judge Alex Koziniski. With compelling Michael Lewis style storytelling, Lobel shows that our current markets too often allow anticompetitive practices by the enforcement of draconian assignment contracts, NDAs, and covenant not to competes against employees and by overly expansive definitions of copyright, trademark and trade secrecy.
Notes from the Talk
In 2004, the major toy company Mattel, which owns the Barbie doll line, sued former employee, Carter Bryant. A few years earlier, Bryant invented Bratz dolls and sold the idea to MGA Entertainment. Bratz dolls soon became competition for Barbie, and in 2005, surpassed their sales. Mattel alleged that Bryant had developed the idea for Bratz while he was still an employee of Mattel, violating his contract. In her talk at the Berkman Klein Center, Orly Lobel (Don Weckstein Professor of Law at the University of San Diego) analyzed the case and its after-effects – what she described as a “decade of corporate and market drama.” Lobel’s talk drew from her new book, You Don’t Own Me: How Mattel v. MGA Entertainment Exposed Barbie’s Dark Side.
Taking this case as an example, Lobel focused on the types of knowledge and behaviors that can be controlled by corporations. One way companies attempt to control employees in this way is through non-competes, or non-competition clauses. Non-competes are written into employee contracts and typically prohibit an employee from working with a competitor within a certain time frame. However, despite their purported intention to protect business interests, Lobel argued, such clauses may actually negatively influence industries. In the state of California, for example, which does not enforce constraints like non-competes, entrepreneurial industries and geographic regions, like Silicon Valley and Biotech Beach, have flourished.
Based on her empirical research Lobel argued that narrowing the reach of non-competes can both protect workers’ rights and increase innovation; employees’ ability to move freely between both industries and regions correlates with economic growth. Lobel concluded by emphasizing that non-competes have a great cost, not only to individual employees who cannot move on in their own prospective careers, but also to entrepreneurship and start-up culture, more generally.
Notes by Donica O'Malley
Orly Lobel is the award winning author several books and numerous articles. She is a prolific speaker, commentators and scholar who travels the world with an impact on policy and industry. Her book Talent Wants to Be Free: Why We Should Learn to Love Leaks, Raids and Free Riding (Yale University Press 2013), is the winner of several prestigious awards, including Gold Medal Axiom Best Business Books 2014, Gold Medal Independent Publisher’s Award 2014, the 2015 Gold Medal of Next Generation Indie Books and Winner of the International Book Awards for Best Business Book. In 2016 Lobel was invited to Washington DC to present Talent Wants to be Free at the White House, a meeting which resulted in a presidential call for action.
Lobel is the author as well as two earlier books about employment and labor law and economics and numerous articles on behavioral law and economics, innovation policy, intellectual property, human capital, the sharing economy and the rise of the digital platform, regulation and governance. Lobel is the Don Weckstein Professor of Law and founding member of the Center for Intellectual Property Law and Markets at the University of San Diego. A graduate of Harvard Law School, Lobel’s interdisciplinary research is published widely in the top journals in law, economics, and psychology. Lobel is currently writing a book about innovation battles and how policy has shaped the dynamics of competition and play in the toy industry forthcoming 2017.
Lobel’s work has been featured in The New York Times, The Economist, BusinessWeek, Wall Street Journal, Forbes, Fortune, The Sunday Times, Globe and Mail, Marketplace, Huffington Post, CNBC, and CNN Money. Her scholarship and research has received significant grants and awards, including from the ABA, the Robert Wood Johnson Foundation, Fulbright, and the Searle-Kauffman Foundation.
She is a member of the American Law Institute and served as a fellow at Harvard University Center for Ethics and the Professions, the Kennedy School of Government, and the Weatherhead Center for International Affairs. She serves on the advisory boards of the San Diego Lawyer Chapter of the American Constitution Society, the Employee Rights Center, and the Oxford Handbook on Governance.
A world traveler, Lobel has lectured at Yale, Harvard, University of California San Diego, University of San Diego and Tel Aviv University and is a frequent speaker at top research institutions, industry, and government forums throughout Europe, Asia, Australia and North America. A celebrated author and scholar, Lobel’s writing has won several awards including the Thorsnes Prize for Outstanding Legal Scholarship and the Irving Oberman Memorial Award. In 2013, Lobel was named one of the 50 Sharpest Minds in Research by The Marker Magazine. Lobel lives in La Jolla, California, with her husband and three daughters.
Lobel is regularly interviewed featured in the nation’s leading media outlets, journals and radio, such as the New York Times, BusinessWeek, and NPR’s Marketplace. She is a sought after public speaker and is a regular contributor to the Harvard Business Review. Recently, she was invited to speak at leading associations and companies, such as Intel, Samsung, AlphaSights, ERE. Lobel is also active on Twitter and is a regular blogger. In May 2015, Lobel gave a fascinating TEDx talk entitled Secrets & Sparks about the expansion of secrecy and intellectual property in contemporary markets.