In Cat and Dogma v. Target Corporation, the Western District of Texas weighed claims of copyright infringement. At issue was a design for which Cat and Dogma (“Dogma”) had secured a copyright.
The design consisted of the words, “I love you,” in a font that was script and fanciful. Dogma alleged that Target, in making linens for children with the same words in a similar font and pattern, had infringed on the copyright.
Target brought a motion to dismiss, and the district court granted it. Dogma then appealed to the Fifth Circuit.
Interestingly, nowhere in any of its briefs did Target contest that it had access to the plaintiff’s design. That seems, to me, a careless mistake. The fact that, throughout the development of this case, Target never contested its alleged access makes it seem like it was instead concentrated on nipping the litigation in the bud with the motion to dismiss. Predictably, when Target eventually brought it up, the court said that defense had been waived because it wasn’t included in any of Target’s briefs.
This is interesting to me on several levels. We’ve talked about the reluctance of the Copyright Office to register logos. In this case, the design is something that seems to be very simple and not worthy of protection. The plaintiffs even agreed that each of the individual elements was not protectable by copyright, instead claiming that the arrangement and selection of those elements was what made it sufficiently original.
In the end, the Fifth Circuit decided that the prima facie value of the copyright certificate was paramount, and remanded the case to the district court for trial. (Keep in mind, the district court on remand might ultimately determine that the designs are not similar enough to warrant infringement.)
It seems problematic to me that something so simple and prevalent can be held to be sufficiently original — while other works, which were produced with great care, are denied. The denials that we’ve seen for trademark logos have been exactly for this point. The Copyright Office feels it should not be giving a monopoly to things that are too simple. What’s next, the plaintiffs asserting that, by virtue of this copyright registration, it owns the very words, “I love you”?
In other cases, something like this has been subject to dismissal. From my point of view, the courts can and should make decisions as to what is a matter of law and therefore deniable — before parties go through the expensive song and dance of factual inquiry.
