June 29, 2015

Merica: Etsy User Claims Target Ripped Off Shirt Design

by Stites & Harbison, PLLC

It's that time of year again: suns out, guns out. When the weather gets warm, we see far too many jorts and tank tops for my liking, especially around the 4th of July. I've also noticed an increase in the number of people sporting in America-themed tanks while sitting lakeside or enjoying a cookout in the summer. Perhaps that's why Target was so keen on selling this #Merica tank top:


One small problem...it allegedly isn't Target's original design.

Pictured in Target decked out in a #Merica tank top is Etsy seller Melissa Lay. Ms. Lay claims that the design in her #Merica tank is her original design and that Target copied it. Ms. Lay uses has a shop on Etsy and has been using a screen printing machine in her garage to create and sell unique tees and tanks for just over a year. I couldn't help but browse her Etsy shop, and many of her designs are quite chic.

Apparently Target thought so too. Lay learned of Target's fashion faux pas when her friends started sending her photographs of a similar looking tank in Target brick-and-mortar stores. If you looked at the photo above carefully, you're probably wondering what the difference between Lay's shirt and the Target tank is. The only measureble differences between Lay's shirt and Target's tank is that the flag on the Target tank is distressed and a different quality of fabric is used. Lay's tank sells for $25, while Target's goes for only $12.99.

Lay apparently called Target's corporate offices to complain, and was instructed by Target to write a letter detailing her allegations. Lay did more than that; she did the American thing to do and took to social media to bring attention to the matter. She wrote in an Instagram post that "[s]mall businesses are being copied everywhere with no leg to stand on." Overwhelmed by the support and media attention she received, she later posted that she "wanted to bring this open to bring awareness, not necessarily to take legal action," and that she is still deciding her course of action." Ironically, she failed to #Merica in either post.

Kudos to Target for its response. Target made a statement that it, "has a deep appreciation for great design and it has always been our policy to respect the intellectual property rights of others. We are aware of this issue and are in the process of reaching out to the designer. We're continuing to look into this matter and are in the process of removing the tee from our assortment."

While the copying of the #Merica tank doesn't constitute trademark infringement, it does constitute copyright infringement. Copyright is a form of protection provided to the authors of original works of authorship, including literary, dramatic, musical, artistic, and certain other intellectual works. Copyright protection vests immediately upon creation, and copyright owners can, among other things, prevent third parties from reproducing and distributing copyrighted works.

While it looks like this intellectual property dispute will set with the sun, it doesn't look like #Merica-themed garb is going anywhere soon. The American flag summer fashion is just getting started. In case you're into that, here's how to DIY some flag-themed jorts:



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