An Oregon clothing designer was shocked to find a tank top at Target that she said looked nearly identical to a shirt sold on her online retail store.
Melissa Lay, who lives outside Portland, started her clothing shop last year so she could work from home to be with her children. Success was immediate, she said, thanks to one design in particular: her black and white shirt that had the phrase "#Merica" on it and a white U.S. flag.
But earlier this month, Lay said, her friend sent her a picture of what the friend thought was a similar shirt at a local Target, thinking Lay had sold her designs to the country’s second-largest discount retailer.
"It was almost unbelievable seeing the picture," Lay told ABC News. "It was the first thing I saw when I walked in. I’ve been making and looking at this design for so long."
Lay said she did not license any of her designs to Target and she complained both on her website and on the Target customer service line. Lay said the customer service representative told her to file a written complaint and send it in, which she says she will do.
Her story quickly went viral on social media and Lay said she started to hear from other people who told her they also had similar experiences with the retailer.
"That’s when I knew that it was worth fighting for small businesses," said Lay, who creates her designs from her garage. "It’s so hard to fight back."
A store in Lay’s area confirmed to ABC News that it has a shirt matching the description of Lay’s shirt in stock. The retailer sent a statement to ABC News saying they were reaching out to Lay.
"Target has a deep appreciation for great design and it has always been our policy to respect the intellectual property rights of others," Target said in a statement. "We are aware of this issue and are in the process of reaching out to the designer."
While Lay said her design is not trademarked, she has been selling the T-shirt for a year and is considering legal action.
Stacey Dogan, copyright expert and professor of law at Boston University, said Lay would be able to pursue legal avenues even though she hadn't originally copyrighted her design.
"It’s less if the work has been registered and more whether the designs are substantially similar in protected expression," Dogan told ABC News.
Dogan said Lay would have to copyright her design before filing suit against Target, but that she could still be entitled to damages. Dogan cautioned that in some cases the designs may seem similar but are not the same and are too generic for one to be declared original.
"If it’s something that’s very basic and simple the argument will be that the other party copied a theme or idea and didn’t copy original expression," said Dogan.
Lay said she bought the Target shirt, which differs slightly in that the flag looks more distressed and it's made in Guatemala instead of Lay's own garage. The price is also a big difference: The Target shirt costs $12.99, according to Lay, and $25 on her website.
"It is mind-blowing, I literally created that with shapes in Photoshop," Lay said of her design.