ABSTRACT
Copyright law protects a work of authorship upon being fixed in a tangible medium of expression, but the author must still register her work in order to sue for infringement and to collect statutory damages. The Copyright Act under § 411(b) provides a safe harbor for inaccurate information on a registration application as long as the copyright holder lacked ‘knowledge that it was inaccurate’. The narrow issue in Unicolors v H&M (the only IP decision this Term) concerns one of scope – whether that knowledge of inaccuracy excuses good-faith mistakes of law only (Unicolors’ situation), of fact only (Ninth Circuit’s position, which would exclude Unicolors’ situation), or both (other Circuits’ position). Writing for the 6-3 majority, Justice Breyer answers both, resolving the circuit split in favor of the other Circuits and yet again, unsurprisingly, reversing the Ninth Circuit.
To the extent that past results predictably indicate future performance, Unicolors ex ante, if narrowly read, would probably be a minor wrinkle in the copyright tapestry, as § 411(b) ex post was rarely invoked – only 23 times since its enactment in October 2008. Post-Unicolors, we may expectedly see more § 411(b) invocations. Broadly read, however, Unicolors confirms the high bar for invalidating copyright registrations based on honest mistakes, whether of facts or of law, in the underlying applications. Unicolors aligns with the US Copyright Office’s general inclination against excessive formality by making the copyright registration process more accessible to all creative artists, regardless of their level of familiarity with copyright law. To wit, Unicolors empowers creative artists to feel more confident about enforcing their copyrights without fear that blatant infringers may skate on a technicality. Still, copyright holders, especially those that are legally sophisticated or represented by counsel, should confirm the accuracy of their registrations and resolve any inaccuracies (eg, by amending, if available, or refiling) before litigation. Copyright holders should not simply turn a willfully blind eye to errors (eg, learned post-registration but neglected to correct) and expect to avoid invalidation risks.
Tran, Jasper, Unicolors v H&M Excuses Legal Mistake (2022), George Washington Law Review On the Docket, volume 90, 2022.
First posted 2022-03-09 15:00:56
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