For many artists, the internet has become the primary tool to showcase one’s works to the world. Whether through Instagram, Facebook, or a personal website, this vast, global network allows a creator to publish his or her works at virtually no cost and easily track their popularity.

While this process has enormous advantages, disseminating one’s works online also opens the door to copyright infringement, as one teen artist claims to have experienced, and which is the subject of a recent district of Minnesota decision, Cooley v. Target Corp. (Sept. 28, 2022).

Although this plaintiff showed that his works were published online prior to the defendant’s alleged copying, his claim of copyright infringement proved unsuccessful.

To establish a claim for copyright infringement, a plaintiff must prove (1) ownership of a valid copyright, and (2) copying of original elements of the copyrighted work. Proving direct evidence of copying is for the most part virtually impossible. Alternatively, as the court in Cooley noted, a plaintiff can rely on evidence of access to the original work and a substantial similarity between it and the allegedly infringing work to prove copying.

Examined in the decision is the evidence necessary to prove a copyright infringement claim and how proof of copying requires meeting a higher burden than one might anticipate.

For small creators and large businesses alike, Cooley provides a reference to what “wide public dissemination” means to courts when analyzing access in a copyright infringement claim and how even hundreds of thousands of views online may be insufficient to meet this high evidentiary bar.

Factual Background

In Cooley v. Target Corp., a seventeen-year-old teen living with autism created a collection of original works between 2012 and 2018 depicting a “sketch-style dot art” pattern. In 2017, Target began designing and selling a line of products that featured various textiles with prints of dots, spots, and speckles, which Cooley contended was strikingly similar to the copyrighted works.

Although the works were undoubtably similar, without a showing that Target had access to the original works, Cooley could not prove copyright infringement.

To prove access, a plaintiff may show that defendant had an “opportunity to view or to copy” the work, but the “bare possibility” of access to the work is insufficient. As with direct copying, it is nearly impossible to prove that a defendant actually viewed the work that was allegedly copied. Instead, a plaintiff may prove that a defendant had a “reasonable possibility” of viewing the work before it was allegedly infringed. In other words, courts require a wide dissemination of the work to the public to prove a defendant had access.

Cooley’s Evidence

For Cooley, while each work was posted on the internet, “the mere fact that [the infringed] work was posted on the internet prior to the creation of [the] defendant['s] work is insufficient.”

One by one, the district court examined each of the accused copyrighted works. For some works, the court looked at when the works were disseminated online. Two were posted after the Target team created the dot designs for the textiles, confirmed by the metadata of the Target files.

Another of the teen’s works was featured in a video on Facebook by a California eyewear company, which garnered over 100,000 views. The court, however, did not find that the video views were adequate to demonstrate a reasonable likelihood of access through wide dissemination, citing cases finding access where the copyrighted work was featured in videos viewed over 7.9 million and 4 million times.

Many of the remaining works as to which infringement was claimed had been posted on plaintiff’s Facebook or Instagram accounts, and on a personal website. The court looked at the number of likes and comments to give an indication of the post's popularity. But for these posts, less than 200 people interacted with each, which was held insufficient to reasonably establish wide public dissemination.

In total, the plaintiff failed to proffer evidence that established a sufficient degree of dissemination to convince the court that Target had access to the works prior to the alleged infringement.

Cooley also argued that Target had direct access to the copyrighted works. In 2018, prior to the lawsuit, a Target employee found the teen artist through social media and partnered with him in a campaign to increase Target's engagement with Gen Z teenagers by featuring young artists on the corporation’s Instagram account.

Even with this relationship, the court did not agree with Cooley that Target had a reasonable opportunity to access the copyrighted works. Cooley provided no evidence that the Target employee that found the plaintiff worked with or had any interaction with the team that created the textile prints. And this relationship only began after the alleged infringement. The court reiterated that Cooley was required to put forth evidence that the team that created the textiles had the reasonable possibility of viewing each Copyrighted Work before the alleged infringement occurred.

Without either direct evidence that Target actually viewed the works, or circumstantial evidence that the works were sufficiently widely disseminated to infer that Target had a reasonable possibility of viewing the works, Cooley’s copyright infringement claim failed, and summary judgment was granted in favor of Target.

Conclusion

As this case illustrates, evidence of copying is more difficult to proffer than one might think. Just because a work is available on the internet for anyone to access does not mean that the particular defendant who created a similar work accessed it. While a plaintiff can use circumstantial evidence to indicate a reasonable likelihood of access, this decision highlights that “wide public dissemination” is a high evidentiary bar that a plaintiff must anticipate for a copyright infringement claim.