Case: 20-50674 Document: 00516048994 Page: 1 Date Filed: 10/08/2021
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`United States Court of Appeals
`for the Fifth Circuit
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`No. 20-50674
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`FILED
`October 8, 2021
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`Lyle W. Cayce
`Clerk
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`United States Court of Appeals
`Fifth Circuit
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`Cat and Dogma, LLC,
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`Target Corporation,
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`versus
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`Plaintiff—Appellant,
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`Defendant—Appellee.
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`Appeal from the United States District Court
`for the Western District of Texas
`USDC No. 1:19-CV-1002
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`
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`Before Wiener, Elrod, and Higginson, Circuit Judges.
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`Per Curiam:*
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`A Texas-based children’s clothing company, Cat and Dogma, sued
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`Target Corporation for copyright infringement. The district court granted
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`Target Corporation’s motion to dismiss under Federal Rule of Civil
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`Procedure 12(b)(6). We REVERSE the judgment of the district court and
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`REMAND the case for further proceedings consistent with this opinion.
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`
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`* Pursuant to 5th Circuit Rule 47.5, the court has determined that this
`opinion should not be published and is not precedent except under the limited
`circumstances set forth in 5th Circuit Rule 47.5.4.
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`

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`Case: 20-50674 Document: 00516048994 Page: 2 Date Filed: 10/08/2021
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`No. 20-50674
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`I.
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`Cat and Dogma (“Dogma”) is an Austin-based children’s clothing
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`company. In 2015, Dogma published a two-dimensional design of a
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`children’s pajama garment (“The Design”). The Design consists of the
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`phrase “i love you” displayed in a cursive, italicized font and all lowercase
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`typeface. The phrase is arranged in 25 rows of repeating text. The phrase
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`repeats 3–5 times in each of The Design’s 25 horizontal rows. Dogma
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`registered The Design with the United States Copyright Office and was
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`granted Copyright Registration Number VA 2-172-249, with the effective
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`date of September 19, 2019.
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`In 2017, Target Corporation (“Target”) began selling a line of
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`children’s garments, sheets, and blankets that also incorporated the phrase
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`“i love you,” written in a cursive, italicized font and all-lowercase typeface.
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`Target’s garments also display the phrase in rows of repeating text.
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`In October 2019, Dogma filed a lawsuit against Target for copyright
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`infringement, alleging that Target infringed its copyright in The Design by
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`reproducing, distributing, and publicly displaying The Design without
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`Dogma’s authorization. In response, Target filed a motion to dismiss under
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`Federal Rule of Civil Procedure 12(b)(6). Target argued that Dogma’s
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`Design was not copyrightable and alleged a lack of substantial similarity
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`between The Design and Target’s products. The district court granted
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`Target’s motion to dismiss. Dogma timely appealed.
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`II.
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`“We review motions to dismiss de novo.” Franklin v. Regions Bank,
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`976 F.3d 443, 447 (5th Cir. 2020). We may not look beyond the pleadings
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`when considering a 12(b)(6) motion to dismiss. Cinel v. Connick, 15 F.3d
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`1338, 1341 (5th Cir. 1994). We accept all factual allegations as true and view
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`the facts in the light most favorable to the plaintiff. Jebaco, Inc. v. Harrah’s
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`2
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`Case: 20-50674 Document: 00516048994 Page: 3 Date Filed: 10/08/2021
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`No. 20-50674
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`Operating Co., Inc., 587 F.3d 314, 318 (5th Cir. 2009) (“Viewing the facts as
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`pled in the light most favorable to the nonmovant, a motion to dismiss . . .
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`should not be granted if a complaint provides ‘enough facts to state a claim
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`to relief that is plausible on its face.’”) (quoting Doe v. MySpace, Inc., 528
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`F.3d 413, 418 (5th Cir. 2008)).
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`“To survive a motion to dismiss, a complaint must contain sufficient
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`factual matter, accepted as true, to ‘state a claim to relief that is plausible on
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`its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
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`v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when
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`the plaintiff pleads factual content that allows the court to draw the
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`reasonable inference that the defendant is liable for the misconduct alleged.”
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`Id. (citing Twombly, 550 U.S. at 556). The plaintiff must therefore allege
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`sufficient factual matter for each required element of the cause of action. Id.;
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`Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 178 (5th Cir. 2018) (citing Rios
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`v. City of Del Rio, 444 F.3d 417, 421 (5th Cir. 2006)).
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`III.
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`“To prove copyright infringement, a plaintiff must establish (1)
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`ownership of a valid copyright; (2) factual copying; and (3) substantial
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`similarity.” Nola Spice Designs, L.L.C. v. Haydel Enters., Inc., 783 F.3d 527,
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`549 (5th Cir. 2015) (quoting Armour v. Knowles, 512 F.3d 147, 152 (5th Cir.
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`2007) (per curiam)).
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`A.
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`The first element of a copyright infringement claim is ownership of a
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`valid copyright. “Copyright ownership is shown by proof of originality and
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`copyrightability in the work as a whole and by compliance with applicable
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`statutory formalities.” Eng’g Dynamics, Inc. v. Structural Software, Inc., 26
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`F.3d 1335, 1340 (5th Cir. 1994) (citing Plains Cotton Coop. Ass’n v.
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`Goodpasture Comput. Serv., Inc., 807 F.2d 1256, 1260 (5th Cir. 1987)). This
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`3
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`Case: 20-50674 Document: 00516048994 Page: 4 Date Filed: 10/08/2021
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`No. 20-50674
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`includes copyright registration. See 17 U.S.C. § 410(c). “A certificate of
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`registration, if timely obtained, is prima facie evidence both that a copyright
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`is valid and that the registrant owns the copyright.” Gen. Universal Sys., Inc.
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`v. Lee, 379 F.3d 131, 141 (5th Cir. 2004) (per curiam). The defendant may
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`rebut this presumption by offering evidence to dispute the plaintiff’s prima
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`facie case of infringement. Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345
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`F.3d 1140, 1144 (9th Cir. 2003) (citing Entm’t Rsch. Grp., Inc. v. Genesis
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`Creative Grp., Inc., 122 F.3d 1211, 1217 (9th Cir. 1997)); see also Norma Ribbon
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`& Trimming, Inc. v. Little, 51 F.3d 45, 47 (5th Cir. 1995) (discussing evidence
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`brought by the defendant to dispute the copyright’s presumptive originality
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`on a motion for summary judgment).
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`Here, Dogma alleges its ownership of Copyright Registration
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`VA 2-172-249 for The Design. We must accept all of Dogma’s factual
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`allegations as true and view such facts in the light most favorable to Dogma.
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`Jebaco, Inc., 587 F.3d at 318. Accordingly, we hold that Dogma adequately
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`alleges ownership of a valid, registered copyright at the pleading stage.
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`Target attempts to rebut the presumptive validity afforded by
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`Dogma’s registration and asks us to affirm the district court’s decision that
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`Dogma’s design is not copyrightable because it lacks the minimum level of
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`creativity to be sufficiently original. Cat & Dogma v. Target Corp., No. 19-
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`1002, 2020 U.S. Dist. LEXIS 152762 at *5–6 (W.D. Tex. July 23, 2020).
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`However, these arguments are premature. Reaching this issue would require
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`us to look beyond the pleadings to make a factual determination and is thus
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`inappropriate on a motion to dismiss. Cinel, 15 F.3d at 1341 (stating “[w]e
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`may not look beyond the pleadings” on a 12(b)(6) motion to dismiss).
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`Accordingly, we do not decide whether Target has successfully rebutted the
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`presumption of validity.
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`4
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`Case: 20-50674 Document: 00516048994 Page: 5 Date Filed: 10/08/2021
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`No. 20-50674
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`B.
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`The second element of a copyright infringement claim is factual
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`copying. In its Amended Complaint, Dogma alleges that Target had access
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`to The Design before Target began selling the allegedly infringing pajama
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`garments. Target does not dispute this allegation. We will therefore assume
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`that Dogma adequately alleges factual copying. See Audler v. CBC Innovis
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`Inc., 519 F.3d 239, 255 (5th Cir. 2008) (“A party ‘waives an issue if he fails
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`to adequately brief it.’”) (quoting Castro v. McCord, 256 F. App’x 664, 665
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`(5th Cir. 2007)).
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`C.
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`The third element of a copyright infringement claim is substantial
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`similarity. To assess substantial similarity, “a side-by-side comparison must
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`be made between the original and the copy to determine whether a layman
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`would view the two works as substantially similar.” Nola Spice, 783 F.3d at
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`550 (quoting Creations Unlimited, Inc. v. McCain, 112 F.3d 814, 816 (5th Cir.
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`1997)) (cleaned up).
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` However, where the original work contains
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`unprotectable elements, courts must first “distinguish between protectable
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`and unprotectable elements of the copyrighted work,” filtering out any
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`unprotectable elements. Id. at 550. The court then determines whether the
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`allegedly infringing work is substantially similar to the protectable aspects of
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`the original work. Id. (citing Peel & Co. v. Rug Mkt., 238 F.3d 391, 398 (5th
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`Cir. 2001)). We address in turn: (1) whether Dogma has alleged the existence
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`of a protectable design element, and (2) whether Dogma has alleged
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`substantial similarity between Target’s products and the protectable element
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`of The Design.
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`1.
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`In the first step of the Nola Spice filtration analysis, we consider
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`whether Dogma has alleged the existence of a protectable element in The
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`Case: 20-50674 Document: 00516048994 Page: 6 Date Filed: 10/08/2021
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`No. 20-50674
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`Design that can be used as the touchpoint of the substantial similarity
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`analysis. Nola Spice, 783 F.3d at 550.
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`The record shows that in creating The Design, Dogma: (1) selected
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`the phrase “I love you;” (2) selected the cursive, italicized font in which to
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`display the phrase; (3) selected the all lowercase typeface in which to display
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`the phrase; (4) arranged the foregoing selected elements in vertical rows of
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`repeating text; and (5) arranged the rows of repeating text in a layout
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`depicting the shape of a nightgown. Dogma does not allege that any of the
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`individual constituent elements of The Design constitute original,
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`protectable expression. Instead, Dogma alleges that the sole protectable
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`aspect of The Design is the selection and arrangement of those unprotectable
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`constituent elements. Dogma alleges that this arrangement and selection is
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`sufficiently original to warrant copyright protection.
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`Dogma points to its certificate of copyright registration to support this
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`position. The registration certificate “constitute[s] prima facie evidence of
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`the validity of the copyright and of the facts stated in the certificate.” 17
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`U.S.C. § 410(c). Prior to issuing a certificate of copyright registration, the
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`Register of Copyrights determines whether the work “constitutes
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`copyrightable subject matter and that the other legal and formal requirements
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`of [The Copyright Act] have been met.” 17 U.S.C. § 410(a). Therefore, in
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`issuing Dogma’s certificate of registration in The Design, the Register of
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`Copyrights necessarily determined that The Design possessed the requisite
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`degree of originality to warrant copyright protection. See Feist Publ’ns, Inc.
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`v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345 (1991) (“To qualify for
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`copyright protection, a work must be original to the author.”) (citing Harper
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`& Row, Publishers v. Nation Enters., 471 U.S. 539, 547–49 (1985)).
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`Accepting the foregoing facts as true and construing the presumptive
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`validity of the copyright in favor of Dogma, we hold that Dogma has
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`Case: 20-50674 Document: 00516048994 Page: 7 Date Filed: 10/08/2021
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`No. 20-50674
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`sufficiently alleged originality in its selection and arrangement of the
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`unprotectable elements which comprise The Design.
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`Target raises several arguments challenging the degree of originality
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`underlying Dogma’s selection and arrangement of the elements in The
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`Design. However, reaching the merits of those arguments requires us to go
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`beyond the pleadings and is improper on a motion to dismiss under FRCP
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`12(b)(6). Cinel, 15 F.3d at 1341 (stating “[w]e may not look beyond the
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`pleadings” on a 12(b)(6) motion to dismiss).
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`2.
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`In the second step of the Nola Spice filtration analysis, we consider
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`whether Dogma has alleged substantial similarity between the protectable
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`selection and arrangement of The Design and Target’s allegedly infringing
`products.1 Nola Spice, 783 F.3d at 550.
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`Dogma’s Amended Complaint provides images of The Design and
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`Target’s products in a side-by-side comparison. Comparing the designs in
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`the light most favorable to Dogma, the designs appear to be similarly
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`arranged. We therefore determine that a reasonable jury could find the
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`designs to be substantially similar based solely upon the similarity of the
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`selection and arrangement of the underlying elements. For this reason, the
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`question of substantial similarity, or any other appropriate standard, should
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`be left to the factfinder. See id. at 550 (“[T]he question of substantial
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`similarity typically should be left to the factfinder . . . .”) (quoting Peel & Co.,
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`238 F.3d at 395); see also 4 Nimmer on Copyright § 13.03[A][4] (2021)
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`(describing “thin” copyrights).
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`1 We assume, without deciding, that the standard of substantial similarity applies
`here. Cf. 4 Nimmer on Copyright § 13.03[A][4] (2021) (describing “thin”
`copyrights).
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`Case: 20-50674 Document: 00516048994 Page: 8 Date Filed: 10/08/2021
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`No. 20-50674
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`Relevant to this stage of analysis, Target enumerates what it believes
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`to be key differences between its products and The Design. However,
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`deciding whether those asserted dissimilarities negate a finding of substantial
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`similarity again requires the court to go beyond the pleadings. Such action is
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`improper in considering a motion to dismiss under 12(b)(6). Cinel, 15 F.3d
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`at 1341; cf. Nola Spice, 783 F.3d 527 (resolving questions of fact related to
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`substantial similarity on a motion for summary judgment).
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`Although a court or jury may ultimately conclude that the similarities
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`between Target’s products and the protected selection and arrangement of
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`Dogma’s design are insubstantial, we are convinced that they are sufficiently
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`substantial to survive a 12(b)(6) motion to dismiss.
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`IV.
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`We hold that Dogma has alleged sufficient facts for each required
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`element of copyright infringement. We therefore REVERSE the district
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`court’s dismissal and REMAND for further proceedings consistent with
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`this opinion.
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`8
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