Ninth Circuit Groaner About Metatags–Art Attacks v. MGA

By Eric Goldman

Art Attacks Ink LLC v. MGA Entertainment, Inc., CV-04-01035-RMB (9th Cir. Sept. 16, 2009)

What is it about metatags that cause legal folks to believe they have magical search powers? It’s a meme that the legal community just can’t seem to shake. To wit: In a case involving the alleged ripoff of a small-time local artist by “Bratz” manufacturer MGA, the Ninth Circuit had to determine if MGA would have ever learned of the plaintiff’s “Spoiled Brats” art collection. In determining if MGA could have had “access” to the Spoiled Brats design (a prerequisite to copyright infringement), the court says:

“Art Attacks also maintained an internet website as of 1996, during the early years of widespread internet use. The website displayed images of various Art Attacks airbrush designs, including animals, celebrities, cars, animals, and the Spoiled Brats. The website took two minutes to load. Users could click through the main Art Attacks website to a linked Spoiled Brats-specific page to obtain a mail-in order form. The website also lacked Spoiled Brats “meta tags,” invisible pieces of data that are embedded in websites and act as flags to internet search engines….As a result, a potential viewer who typed “Spoiled Brats” into a search field would likely not encounter the Art Attacks page.” (emphasis added)

What??? Putting aside the fact that the metatags were ignored by many of the search engines even at the relevant time (back in the late 1990s), this is a backwards way of assessing site visibility for the search term “Spoiled Brats.” So what if the term Spoiled Brats wasn’t in the metatags if the term was on the page? Yet another reason why I wouldn’t rely on Ninth Circuit opinions for accurate descriptions of SEO practices.

One last point: although MGA beat this particular allegation that its Bratz dolls were ripoffs, the appellate victory is a little hollow because MGA wasn’t so fortunate in its litigation with Mattel.