In Brief:  Messing up on a copyright application can be excused.

Here’s What Happened:

In the 9/29/20 IP News for Business Blawg we discussed Unicolor, Inc. v. H&M. Unicolor had filed a copyright application that contained 31 published and unpublished designs. Unicolor filed the designs together under a section in the Copyright Act that allows the filing of a group of works as long as they were published together. Unicolor sued H&M for copyright infringement of some of the designs. H&M lost at the trial court and appealed to the Ninth Circuit Court of Appeals. H&M argued that Unicolor’s copyright application was a fraud on the Copyright Office because Unicolor bundled published and unpublished works together. The Ninth Circuit held that since this was a question regarding a copyright application, the trial court should have submitted a request to the Register of Copyrights “to advise the court whether the inaccurate information, if known, would have caused it to refuse registration.” So the Ninth Circuit sent the case back to the district court to follow through on the required process.

The case went back up to the Ninth Circuit. The Ninth Circuit held that the faulty application could only be excused if Unicolor had operated under a good faith mistake of fact and not law. Which could not be the case.

The matter ended up in front of the US Supreme Court. The underlying fact wasn’t in dispute. Unicolor’s registration didn’t qualify for the single unit of publication. Unicolor argued that it wasn’t aware of the fact that its application violated the single publication rule.  So the issue was whether the application was valid anyway.

Analyzing the Copyright Act, the Supreme Court held that Unicolor’s registration is valid. Justice Stephen Breyer used his well-known pragmatism to analyze the situation. Justice Breyer wrote that a copyright application can be valid “regardless of whether the [registration] certificate contains any inaccurate information, unless . . . the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate.” Both case law and the dictionary define “knowledge” to mean “the fact or condition of being aware of something.” This applies to knowledge of laws as well as knowledge of facts. Justice Breyer determined that the required knowledge of inaccuracy had to rise to the level of subjective awareness of both laws and facts. And there’s a long history of validating copyright registrations even if there’s an inaccuracy on the application. The Supreme Court did not accept any of H&M’s arguments, including that ignorance of the law is no excuse. The Supreme Court held that the maxim applies to criminal and not civil matters.

The case was remanded for further proceedings consistent with the Supreme Court’s opinion.

Why You Should Know This.  Unicolor made a mistake. No question. But it cost Unicolor a lot of time and money to be excused from that mistake. The conclusion in the original Blawg post stands even though Unicolor prevailed. One should be as accurate as possible in drafting a copyright application.

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