Teen artist wins round against Target

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A teenage artist from California who alleges that Target Corp. copied his “sketch-style dots” with its use of “scribble dots” in an exclusive line of clothing and other products has won an early round in his copyright infringement suit against the retail giant.

U.S. District Judge Donovan Frank denied Target’s motion to dismiss a complaint made on behalf of artist Nolan Ocean Cooley in an order issued on March 29. A complaint filed in May 2020 describes Nolan as a 16-year-old living with autism who has gained national recognition and critical acclaim for his artwork.

Nolan’s mother, Kristen Cooley, serving as guardian of her son’s estate, alleges that the “scribble dots” in Target’s Cat & Jack products “plainly and unlawfully copied and/or were derivative works from (Nolan’s) creative expressions in (his) works.”

Frank concluded Cooley had sufficiently alleged “substantial similarity” between Nolan’s works and the Target products to make early dismissal of the case unwarranted.

However, a “victory at this stage does not necessarily guarantee victory at a later stage when the issues can be considered after discovery and expert opinion evidence comes into play,” Frank wrote, adding that he encourages the parties to consider settling the matter.

A spokesperson from Dorsey & Whitney, which is representing Target, declined to comment, citing client conflict. Cooley’s attorney, Howard Wisnia of San Diego, did not respond to a request for comment. Cooley’s complaint alleges two causes of action, direct copyright infringement and inducement and contributory copyright infringement, and seeks unspecified damages, revenue or profits Target derived from its alleged infringement and attorney fees and costs.

The “calling card” of Nolan’s work “is the unique manner in which (he) has designed, created, combined, arranged and colored imperfect sketch-style dots that he hand-drew into idiosyncratic patterns,” according to the complaint. Nolan has had gallery shows, co-branding deals and sales of his art to buyers throughout the United States. Nolan gained widespread attention from a video about his work that went viral several years ago.

Target contacted Nolan directly through his Instagram account, according to documents. In July 2018 the company invited the then 14-year-old to its Minneapolis headquarters for a social media promotional project. There he participated in collaborative projects with Target employees and other young artists over three working days.

“Target demonstrated its acute awareness of and access to Nolan’s unique artwork by posting to its own Instagram account (a) photograph and description of Nolan and some of his distinctive sketch-style dot art shortly after the July 2018 workshop that Nolan attended at Target’s request,” the complaint alleges.

A month later, in August 2018, Nolan’s mother discovered that Target was selling its Cat & Jack products, asserting in the complaint that the retailer promoted the line as “Designed with Kids, For Kids,” with “real kids from around the country helping to design the collection.” Target marketed the products as ones designed for children with disabilities. Cooley further alleges, without elaborating, that Target had access to Nolan’s “dot-style works of art” including copyrighted works, before the company launched the first iteration of its Cat & Jack brand in July 2016.

A Target copywriter for the brand “directly interacted with the Cooleys and even stated to the Cooleys that she was responsible for originally finding Nolan and his artwork for Target,” the complaint alleges. “Her admitted access to and awareness of Nolan’s artwork and Target’s subsequent copying of it in its Cat & Jack products plainly was no coincidence.”

In September 2018, Cooley demanded that Target stop further sales of infringing products. Target denied the infringement allegation and in December 2020 filed a motion to dismiss Cooley’s complaint in U.S. District Court in Minnesota.

Target argued that Cooley could not claim copyright infringement with respect to the idea of colored circles or commonly occurring patterns such as polka dots, according to documents. It further argued that “beyond patterns of hand-drawn dots, there is an absence of substantial similarity between the pattern used on Cat & Jack products and the sketch dots in (Nolan’s) works.”

In his analysis, Frank cites case law stating that determining substantial similarity involves an extrinsic test to evaluate idea similarity and an intrinsic test to evaluate expression similarity. Frank found that Cooley has sufficiently alleged substantial similarity under the extrinsic test, asserting original elements and creative choices in her son’s work that warrant copyright protection.

Frank determined further that Cooley had sufficiently alleged substantial similarity between Nolan’s art and Target’s products in side-by-side comparisons, including similarities in shapes, colors and arrangement of respective designs.

The comparison, as alleged, “plausibly reveals substantial similarity,” the judge wrote, continuing: “While Target highlights what it believes to be key differences between its products and (Nolan’s) works, those asserted dissimilarities do not negate the obvious similarities.”

Patrick Arenz, a partner at Robins Kaplan whose focus includes copyright infringement and is not involved in this dispute, said such cases and be fact-intensive in nature, as Frank’s “well-reasoned” opinion recognizes.

“Determining whether a work is substantially similar to another, which requires analysis of the artist’s creative choices and original combinations of elements, is often improper for the court to decide on a motion to dismiss,” Arenz said. “The result here is that the plaintiff will have a full record for his claim to be decided on the merits.”

Professor Tom Cotter of the University of Minnesota Law School said Frank’s denial of Target’s motion to dismiss the complaint was “probably the right decision.” Granting a motion to dismiss without giving any consideration to what a jury ultimately might decide is difficult.

“Whether Target actually copied or not is a question that will have to be addressed,” Cotter said. “They did have access to the 16-year-old’s work so if there is some similarity and some access that would be enough to at least allow jury to find copying; it wouldn’t require it but it would allow it.”

A central issue in copyright cases is whether the defendant could have copied the work in question, Cotter said. That’s why movie studios and music producers typically refuse to look at unsolicited work from aspiring screenplay writers or composers so they can deny having seen the work and maintain that any similarities simply are coincidental.

“In this case if I’m reading the opinion correctly it’s pretty clear that Target did have access to the teenager’s paintings,” Cotter said. “On that issue that’s a bad fact for Target. It certainly doesn’t necessitate a finding that they are liable for copyright infringement. But it does put the plaintiff in a stronger position than you often see in these cases where the defendant will say, ‘We just had no way of ever having encountered this work before.’”

The key issue is whether the works are sufficiently similar to one another along any dimension that is actually protected by copyright, which ultimately might be an issue for the trier of fact, Cotter said.