On a recent trip to Target, Melissa Lay, the designer behind indie label Sandi Lake Clothing, found a t-shirt that is a near exact replica of one she created last year. This is not unlike the time Proenza Schouler’s “it” bag, the PS1, was replicated by the retail giant. An understandably frustrated Lay, who sells her Merica tee on its site and Etsy for $26, has shared the following comment in connection with Target’s lookalike tee …
“The meaning and importance of #shopsmall has never really hit my heart until today when it hit my home and my livelihood. #MERICA is one of our original 5 designs. We opened April 1st, 2014 and this tank launched us to levels we didn’t know we’re possible. This photo is me in @target wearing MY #sandilakeclothing original design and holding up the tank they made using the same one. They are identical. And I’m not alone with my story. Small businesses are being copied everywhere with no leg to stand on. I contacted Target Corporate and they gave me an address to mail a letter to! That’s it!!? Please share this story and others you hear of. We work incredibly hard to provide for our families, and dress you and your littles in a rad way that large companies can’t. Know what you are buying and where it came from. I am going to think a lot harder about every purchase I make.”
As for what options Lay has in pursing legal action against Target, she may actually have some because her tank bears what we are assuming is an original design, the #Merica flag. While few garments and accessories in their entirety are actually protectable via copyright law in the U.S. (as clothing and many accessories are utilitarian in nature and very few meet the separability requirement for useful articles), the patterns and prints on garments and accessories ARE protectable under the umbrella of copyright law as Pictorial, Graphic or Sculptural Works (“PGS”). In order to receive copyright protection in the first place, an artistic expression must original and fixed in any tangible medium of expression. The latter requirement is clearly not an issue here because the artwork (Lay’s #Merica design) has been depicted likely on paper and then on t-shirts. Originality is also likely not an issue either, as we know, the level of originally required for a work to achieve copyright protection is pretty low. This leaves separability, which is at the heart of the PGS category.
In order for a work to qualify as a PGS worthy of copyright protection, several elements must be met, namely: There must be some degree of separability between the artistic element at issue (the #Merica design) and the useful function of the item (the function of the t-shirt). Luckily for Lay, the design on a t-shirt scenario is one that is commonly cited as a classic case in which separability exists. The ration is this: Can a t-shirt exist and function like a t-shirt without the ornamental design on it? Yes. As a result, there is separability.
With these elements in place, the final issue (assuming Lay has registered the #Merica design with the U.S. Copyright Office, as that is a prerequisite for filing a lawsuit for copyright infringement) is whether the designs are “substantially similar” — the requisite standard for copyright infringement, which seems pretty straightforward here.