Andersen et al v. Stability AI Ltd. et al

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United States District Court
Northern District of
 California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SARAH ANDERSEN, et al.,
Plaintiffs,
v.
STABILITY AI LTD., et al.,
Defendants.
Case No. 23-cv-00201-WHO (LJC)
ORDER RESOLVING DISCOVERY
DISPUTE AT ECF NO. 369
Pending before the Court is a discovery brief filed by Plaintiffs Sarah Andersen, Gerald
Brom, Julia Kaye, Karla Ortiz, and Grzegorz Rutkowski and Defendant Midjourney regarding the
sufficiency of Plaintiffs’ responses to four interrogatories. ECF No. 369. The close of fact
discovery is set for June 1, 2026, and the parties’ deadline to serve all deposition notices and
subpoenas is May 11, 2026. ECF No. 409. The Court assumes the parties’ familiarity with the
overall factual and procedural history of the case.
Having considered the parties’ arguments, the relevant legal authority, and the record in
the case, Midjourney’s request that Plaintiffs supplement their responses to the four interrogatories
is DENIED in part and GRANTED in part. No further responses to Interrogatory No. 2 is
required. Plaintiffs shall “continue to supplement” their responses to Interrogatory Nos. 1 and 3,
and, within one week of the issuance of this Order, Plaintiffs and Midjourney shall meet and
confer to agree on a timeline for Plaintiffs’ supplemental responses. ECF No. 369 at 6. If
Plaintiffs have not already done so, they are ordered to produce the specific financial and
marketing documents described in their discussion of Interrogatory No. 4 within ten days of this
Order being issued, and shall amend their responses to this Interrogatory accordingly.
The Court’s reasoning, addressing the Interrogatories in the order discussed in the parties’
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joint letter, is as follows:
I. INTERROGATORY NO. 2
Interrogatory No. 2 asks Plaintiffs to:
IDENTIFY and DESCRIBE in detail YOUR alleged trade dress,
including all concrete elements comprising YOUR trade dress, when
YOU allegedly first began using each such element in YOUR work,
whether YOU claim to have originated each such element, whether
YOU claim exclusive rights to use each such element of YOUR trade
dress (alone or in combination with other elements), and each of
YOUR ASSERTED WORKS that YOU contend embodies the
individual elements or combination of elements that YOU contend
constitute YOUR protected trade dress.
ECF No. 369-2 at 9. Plaintiffs objected and provided initial and supplemental responses
describing the elements that comprise their trade dress. See id. at 10-18. Plaintiffs’ supplemental
responses list the distinctive elements of their artwork. For example, Plaintiff Sarah Andersen
described the “visual elements that define her Sarah’s Scribbles comic works and make them
immediately recognizable to consumers as originating from her” as including a female protagonist
“characterized by exaggerated facial expressions, large eyes, a black, spikey bob haircut, and often
a striped shirt,” a black-and-white line drawing style with simple or blank backgrounds,
handwritten dialogue or narration, and “self-deprecating humor, introspection, and relatable
everyday themes.” Id. at 10. Plaintiff Grzegorz Rutkowski describes his trade dress as being
comprised of visual elements including (among other things), “[d]igital oil-painting technique”
emulating “the layered texture and brushwork of traditional academic oil painting,” “rich, muted
color palettes dominated by earth tones,” “pronounced contrasts between light and shadow,” and
fantasy and mythological themes with “[d]etailed costume and environmental design.” Id. at 17.
Plaintiffs also cite to the Second Amended Complaint’s exhibits for examples of representative
works from each Plaintiff. Id. at 10-18.
“A product’s ‘trade dress’ is its total image and overall appearance; it includes “features
such as size, shape, color, color combinations, texture, or graphics.” Kendall-Jackson Winery,
Ltd. v. E. & J. Gallo Winery, 150 F.3d 1042, 1045 (9th Cir. 1998) (quoting Vision Sports, Inc. v.
Melville Corp., 888 F.2d 609, 613 (9th Cir. 1989). “Because trade dress claims involve intensely
factual issues, courts in this circuit have required trade dress plaintiffs, at the very least, to provide
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adequate notice by including in their complaint a complete recitation of the concrete elements of
[their] alleged trade dress.” YZ Prods., Inc. v. Redbubble, Inc., 545 F. Supp. 3d 756, 767 (N.D.
Cal. 2021) (internal quotations omitted). However, a “a trade dress claim need not include all
features visible on a product” and may omit “several notable features” yet still describe the trade
dress “with sufficient particularity.” Benefit Cosms. LLC v. E.L.F. Cosms., Inc., No. 23-cv-00861,
2023 WL 4409104, at *4 (N.D. Cal. July 7, 2023); Deckers Outdoor Corp. v. Fortune Dynamic,
Inc., No. CV 15-769, 2015 WL 12731929, at *4 (C.D. Cal. May 8, 2015). “[T]he trade dress of
works that are decorative or artistic may be harder to capture in words, and may need descriptions
more broadly framed, or may need drawings; but the party seeking protection must nonetheless be
able to point to the elements and features that distinguish its trade dress.” Yurman Design, Inc. v.
PAJ, Inc., 262 F.3d 101, 117 (2d Cir. 2001).
Midjourney argues that Plaintiffs’ responses are imprecise and insufficiently detailed, and
seek a court order directing Plaintiffs to provide “a list of all specific, identifiable elements that
Plaintiffs contend comprise their trade dress and must be present to infringe it, and a complete list
of their works in Exhibits A (or otherwise) that they claim features that trade dress.” ECF No.
369 at 3.
Their request is denied. Without prejudice to arguments Midjourney may make at
summary judgment,1 the undersigned determines that Plaintiffs’ amended and supplemental
responses to Interrogatory No. 2, which describe the Plaintiffs’ “distinctive” artistic styles in
reasonable detail while citing to illustrative examples in the SAC, are sufficient to satisfy their
obligations under Rule 33. ECF No. 369-2 at 10. As the undersigned explained in denying
Plaintiffs’ request that Midjourney be ordered to supplement an interrogatory response, although
Plaintiffs’ “responses might lack the additional details that Defendants would prefer,” this does
not mean that the “the responses … violate Rule 33, which simply directs that each interrogatory
be answered ‘fully.’” Tapia v. Huntington Park Police Dep’t, No. CV-09-07624, 2010 WL
1 Plaintiffs’ trade dress claims have survived Defendants’ motion to dismiss. See ECF No. 223
(Order Granting in Part and Denying in Part Motion to Dismiss First Amended Compl.) at 23
(determining that Plaintiffs provided “sufficient description” of their trade dress).
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11549657, at *1 (C.D. Cal. May 5, 2010) (quoting Fed. R. Civ. P. 33(b)). Given the inherent
difficulty in capturing artistic styles in words, Plaintiffs’ descriptions—even if somewhat “broadly
framed”—in conjunction with citations to illustrative examples is adequate. Yurman, 262 F.3d at
117. If they so choose, Midjourney may employ other discovery methods “to flesh out” Plaintiffs’
responses. Tapia, 2010 WL 11549657, at *1.
II. INTERROGATORY NOS. 1 AND 3
Interrogatory No. 1 asks the eight named Plaintiffs to:
IDENTIFY all evidence upon which YOU base YOUR contention
that Midjourney’s use of YOUR name ‘created a likelihood of
confusion over whether YOU actually endorsed MIDJOURNEY
TOOLS, and over the affiliation, connection, or association that YOU
might have with Midjourney,’ as alleged in paragraph 299 of the
COMPLAINT.
ECF No. 369-2 at 2. Interrogatory No. 3 asks Plaintiffs:
If YOU contend that any MIDJOURNEY TOOL has been used to
generate outputs that infringe YOUR alleged trade dress described in
response to Interrogatory No. 2, IDENTIFY all facts upon which
YOU base that contention, including for each such output the date it
was created, the user who allegedly created it, the prompt used to
generate the output, the specific output generated, where the output
can be found online or otherwise, and all facts and evidence upon
which YOU base any contention that consumers were confused as to
whether the output was affiliated with or created, endorsed or
authorized by YOU.
Id. at 18.
Plaintiffs objected, arguing, among other things, that these were “premature contention”
interrogatories and that “discovery and expert analysis” were ongoing. ECF No. 369-2 at 2
(Andersen’s Amended and Supplemental Response to Interrogatory No. 1), 19 (Andersen’s
Amended and Supplemental Response to Interrogatory No. 3). Without waiving their objections,
Plaintiffs responded by, among other things, describing Midjourney’s “Style List,” a Discord
message by Midjourney’s CEO, Midjourney’s “Showcase” gallery, and images generated by the
Midjourney Image Product using Plaintiffs’ names. See id. at 2-9, 18-25. Plaintiffs provide that
they will supplement their responses with specific examples as they are identified, pursuant to
Federal Rule of Civil Procedure 26(e). See e.g., id. at 25.
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Midjourney contends that Plaintiffs’ responses are inadequate, as they have not identified
“a single image they are accusing.” ECF No. 369 at 3. They request that Plaintiffs be ordered “to
respond to these interrogatories in full, including identifying by URL or Bates number all
‘publicly displayed’ Midjourney outputs they are accusing.” Id. Plaintiffs explain that providing
a “complete catalogue of every infringing output requires analysis of prompt-output pairs that
remain in Midjourney’s exclusively possession,” and that they “will continue to supplement” their
responses throughout discovery. Id. at 5-6.
Although the Court is sympathetic to Midjourney’s arguments regarding the insufficiency
of Plaintiffs’ responses, at this time, the Court declines to order Plaintiffs to further supplement
their responses by a set date. Document production is ongoing (see ECF No. 381 at 2-3) and the
Court credits Plaintiffs’ explanation that they need “prompt logs, user data, and metadata” from
Midjourney to provide a “complete catalogue of every infringing output.” Id. at 5. The Court
expects Plaintiffs to supplement their responses to Interrogatory Nos. 1 and 3 as document
production progresses, pursuant to Rule 26(e), and fully expects Plaintiffs to comply with the
modified case schedule. The onus is on the parties, who are aware of the cadence of productions
and other discovery in this action, to negotiate an appropriate timeline for Plaintiffs to supplement
their responses.
No later than one week after the date of this order, Plaintiffs and Midjourney shall meet
and confer to determine an appropriate date by when Plaintiffs shall supplement their responses.
Subject to the usual meet and confer requirements in Judge Cisneros’s Standing Order,
Midjourney may renew its request regarding Interrogatory Nos. 1 and 3 after Plaintiffs further
supplement their responses.
III. INTERROGATORY NO. 4
Interrogatory No. 4 asks Plaintiffs to:
IDENTIFY and DESCRIBE in detail all facts RELATING TO
YOUR contention that YOUR alleged trade dress “possesses
secondary meaning,” as alleged in paragraph 320 of the
COMPLAINT, including all advertising or marketing efforts and
expenditures YOU have undertaken to promote works allegedly
incorporating YOUR alleged trade dress; all sales … of copies of
YOUR works allegedly incorporating YOUR alleged trade dress; all
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revenues and income … YOU have derived from such sales,”
consumer services, and distribution of works.
ECF No. 369-2 at 25. Plaintiffs’ supplemental responses describe when each Plaintiff began using
their respective trade dress, where their artwork is publicly available, and, in broad terms, media
coverage and industry recognition of their works. See id. at 26-34. Plaintiffs represent that they
will produce financial, sales, and marketing data that is within their possession, custody, or
control, and that they will supplement their responses “as additional data, including expert
analysis, becomes available.” Id. at 27, 29-30, 32, 34. They note that evidence regarding “proof
of intentional copying” is “exclusively within Midjourney’s possession,” and thus they are
“precluded from detailing evidence on this factor until Midjourney produces the very evidence it
now demands.” ECF No. 369 at 6. Midjourney argues that Plaintiffs’ responses are deficient and
that all information regarding Plaintiffs’ “financial, sales, and marketing documents” are already
in Plaintiffs’ possession and must be produced. Id. at 4.
To prove a trade dress infringement claim, plaintiffs must show that the trade dress at issue
is (1) “nonfunctional, (2) the trade dress has acquired secondary meaning, and (3) there is a
substantial likelihood of confusion between [the original and the allegedly infringing] products.”
Art Attacks Ink, LLC v. MGA Ent. Inc., 581 F.3d 1138, 1145 (9th Cir. 2009). “Secondary meaning
exists when in the minds of the public, the primary significance of the trade dress is to identify the
source of the product rather than the product itself.” P & P Imports LLC v. Johnson Enters., LLC,
46 F.4th 953, 960 (9th Cir. 2022) (internal quotations omitted). To determine whether a secondary
meaning exists, courts assess factors that include, among others, the amount and manner of
advertising and the number of sales and number of customers. Id. at 961.
Plaintiffs represent that they will be producing detailed “financial, sales, and marketing
documents” responsive to Interrogatory No. 4. ECF No. 369-2 at 27, 29-30, 32, 34. Such
documents, evidencing the “amount and manner of advertising[,] amount of sales and number of
customers,” and the “established place in the market” of Plaintiffs’ respective works, will
presumably be responsive to Interrogatory No. 4. P & P Imports, F.4th at 960. As Midjourney
notes, these documents should “already” be in Plaintiffs’ possession. ECF No. 369 at 4. If
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Plaintiffs have not already done so, they shall produce responsive “financial, sales, and marketing
documents” within ten days of this Order being issued. Within five days of this production, they
shall amend their responses to Interrogatory No. 4 to identify the responsive records. See Fed. R.
Civ. P. 33(d).
To the extent that Plaintiffs’ response to Interrogatory No. 4 depends on information
within Midjourney’s possession, the undersigned expects Plaintiffs to comply with their
obligations under Rule 26(e) and further supplement their responses if they learn that “in some
material respect” their responses are “incomplete or incorrect.”
IV. CONCLUSION
Midjourney’s request that Plaintiffs further supplement their responses to Interrogatory No.
2 is DENIED. The undersigned declines to set a date certain by which Plaintiffs must supplement
their responses to Interrogatory Nos. 1 and 3; however, Midjourney and Plaintiffs shall meet and
confer within one week of the issuance of this Order to determine an appropriate date by when
Plaintiffs shall supplement their response. Plaintiffs are ordered to produce “financial, sales, and
marketing documents” responsive to Interrogatory No. 4 within ten days of the issuance of this
Order, and shall amend their responses to this Interrogatory in compliance with Rule 33(d) within
five days of this production.
IT IS SO ORDERED.
Dated: February 10, 2026
LISA J. CISNEROS
United States Magistrate Judge
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