Image: Amina Mucciolo

MGA Entertainment may be best known for its hot-selling Bratz dolls (and in certain circles, its years-long legal battle with Barbie-maker Mattel for allegedly hijacking the design of the pouty-lipped figures), but the name of the California-based company is coming up in connection with a different toy as of late: a tiny L.O.L. Surprise doll. With perfect brown skin, a pop of pink eyeshadow, oversized rainbow-hair and an equally colorful wardrobe, the year-old “Rainbow Raver” doll is something of a dead-ringer for Amina Mucciolo. The problem with that, according to the thirty-something artist and content creator? While doll looks “exactly” like her, she was not involved in any aspect of its creation. 

In a string of recent social media posts, Los Angeles-based Mucciolo whose eye-catching style and colorful creative works have been profiled by the likes of MTV, Jezebel, Refinery29, the Los Angeles Times and Allure, among other publications alleges that MGA “created a doll based on [her] entire image and identity without [her] permission” after enlisting her to appear as an episode guest for one of its YouTube series last year.

According to Mucciolo, in April 2019, five months after she first started wearing her hair in a teal-centric style with rainbow-accents, and simultaneously started sharing photos of the hairstyle on her heavily followed Instagram (where she says MGA’s L.O.L. Surprise was following her at the time), MGA hired her to be a guest on its YouTube channel for a kids interior design show. She appeared on the show, and after that, the two parties when their separate ways. That is, until June 2019 when MGA released the Rainbow Raver doll as part of its “Hair Goals” collection of teeny-tiny collectable toys.

With the same turquoise-hued hair (complete with florescent yellow, pink, and blue accent strands), bold eyeshadow and colorful clothing, the resemblance between the doll and the freelance artist is hard to miss. Mucciolo says the doll “looks exactly” like her.

While Mucciolo claims that she was not involved in the making or marketing of the new doll, she became aware of it when she began to receive messages from her 300,000-plus Instagram followers, who were commenting on “the [doll’s] striking resemblance to me, and my unique hair and outfits.” Mucciolo says that she reached out to L.O.L. Surprise and MGA Entertainment “via every channel that was available,” only to be “ignored.” Now, the budding young artist is speaking out about MGA’s “obviously predatory and reprehensible” behavior on the heels of the company making what she says was “a lazy post claiming to care about injustices done to Black people” in light of recent race-based violence in the U.S.

To date, Mucciolo has not initiated formal legal action against MGA, but the situation at hand raises questions about whether she has legal grounds to successfully wage a legal battle, and it appears that if she has any merited legal recourse here (and there is no guarantee that she actually does), it would likely be a right of publicity claim.

A state-specific legal doctrine, right of publicity statutes provide individuals with the ability to prevent others from commercially exploiting their names and/or likenesses without permission. While the right of publicity is traditionally associated with companies’ unauthorized attempts to leverage the name or image of celebrities to sell products or services, this cause of action is not limited exclusively to famous individuals, and in fact, Bryan Cave partner Nick Williamson says that “with the growth of the internet and social media, otherwise ordinary folks have entered the right of publicity arena, using such claims when they feel their image [or likeness] was used commercially and without their consent.”

In other words, individuals, such as Mucciolo who, based on the widespread media attention highlighting her work and her colorful look, and her sizable following on social media, is not exactly an unknown name can utilize this type of protection to fight back against instances of misappropriation in the same way as Hollywood A-listers. 

In California, where both Mucciolo and MGA are based, the right of publicity statute prohibits the unauthorized commercial use of another’s “name, voice, signature, photograph, or likeness,” with the latter element – likeness – being the key to any potential claim that Mucciolo would have against MGA. At the same time, the state’s common law right provides broad protection, going so far as to cover aspects of an individual’s “identity.” 

With that in mind, one of the key issues would be whether a hairstyle – which is the most readily-identifiable element of Mucciolo’s appearance – falls within the bounds of a person’s “likeness” or “identity.” While an individual’s “likeness” can be difficult to precisely define and is almost always determined by a court on a case-specific basis (making it hard to say with whether Mucciolo has a (hypothetical) case or not), it is worth noting that hair and hairstyles have been specifically cited in connection with right of publicity claims and cases in the past.

For instance, Georgetown Law School professor Deborah Bouchoux pointed to certain “personal attributes,” such as a “hairstyle,” as potentially amounting to protectable elements of an individual’s likeness in her book, Intellectual Property: The Law of Trademarks, Copyrights, Patents, and Trade Secrets

Citing the widely-referenced White v. Samsung case, Nelson Mullins attorney Mark VanderBroek states that the U.S. Court of Appeals for the Ninth Circuit “held that the use of a combination of elements, such as hairstyle and manner of dress, can violate California’s common law right of publicity, which protects a broader aspect of identity than that expressly protected by the statute.” 

Similarly, in a 1978 case involving Muhammed Ali, the U.S. District Court for the Southern District of New York held that “the cheekbones, broad nose and wideset brown eyes, together with the distinctive smile and close cropped black hair are recognizable as the features of the plaintiff, one of the most widely known athletes of our time.”

Still yet, the reproduction of an individual’s “hairstyle and [hair] color,” as well as his/her height, weight, build, skin tone, and facial features, was at the center of the right of publicity lawsuit that former college quarterback Ryan Hart filed against video game maker Electronic Arts Inc., claiming that EA’s use of his likeness in its NCAA football game franchise without his permission or compensation violated his right of publicity. (Following a win before the U.S. Court of Appeals for the Third Circuit, which held that EA’s use of the players’ likenesses was not transformative, the parties settled out of court). 

While it may be safe to say – based on the aforementioned citations and examples of legal scholarship, among others – that hairstyle plays a role in helping to define an individual’s likeness, and thus, may be protected from unauthorized reproduction (either under California’s statute or by way of a common law right), it is unclear how, exactly, a court would come down in the hypothetical case at hand. What is clear, however, is that L.O.L. Surprise is a huge franchise for MGA, with the toy giant, which generates nearly $10 billion in annual revenue, having L.O.L. Surprise to thank for approximately half of that. The company said this spring that it expected to bring in $5 billion for the 2019 fiscal year from L.O.L. Surprise, alone.

Another thing that is perfectly clear? Isaac Larian-run MGA is as litigious as it is successful. As the New York Times asserted earlier this year, the company racked up “hundreds of millions of dollars” in legal fees in its decade-plus fight against Mattel, after the Barbie giant accused MGA of stealing the design and related intellectual property for its Bratz venture from a Mattel employee.

As for Mucciolo, she says this instance is part of a larger pattern of copying not just by MGA but by companies of all kinds. “This sort of thing happens to Black creatives more than you could possibly imagine, and we are tired,” she asserts, noting that “having huge corporations make money off my ideas and identity, while I struggle financially as a Black freelance artist and content creator, has been both infuriating and devastating, to say the least.” 

UPDATED (June 10, 2020): In addition to sharing a statement and timeline on Instagram, a representative for MGA provided TFL with the following statement, “We’ve seen the allegations [from Ms. Mucciolo] and take this seriously. We apologize for the delay but felt it was important to review the timeline and facts internally.” The spokesman says that “Rainbow Raver was designed by one of our talented black designers, a now successful fashion entrepreneur, who has confirmed the doll was not based on Amina Mucciolo.”

“While we understand the similarities,” MGA continues on to note that its Rainbow Raver doll was in production during the summer of 2018 before Mucciold first posted imagery of her hairstyle on social media in November 2018. “Our colorful and creative team is inspired by trends in pop culture. Rainbow Raver was designed after music festival fashions. We deeply respect the artistic and creative community and would not take from a creator in the way suggested. MGA works tirelessly to protect our own intellectual property against that behavior.”