I Made a Mistake on My Copyright Application. Can I Still Have a Valid Registration?
Having a copyright registered with the U.S. Copyright Office provides a copyright holder with legal advantages, including the right to bring a lawsuit for copyright infringement. Applicants must supply to the Copyright Office information about the works, some of which is purely factual, but some of it incorporates legal conclusions. What happens when a copyright application contains a mistake? Will that mistake invalidate a copyright registration? Fortunately, the Copyright Act contains a safe-harbor provision protecting registrations from invalidation based on innocent errors. In this blog post, we discuss the safe-harbor provision and a recent case interpreting that provision.
Copyright Registrations
To obtain a copyright registration, the author of the work must submit to the Register of Copyrights a copy of the work and an application. The application must provide information about the work – some of this information is factual, but some of it incorporates legal conclusions. If the Register concludes that the work is copyrightable and meets the other requirements, the Register will issue to the applicant a certificate of registration. The information on the certificate reflects the information provided by the copyright holder on her application.
The Safe-Harbor Provision
Section 411(b)(1) of the Copyright Act governs the effect of inaccurate information in a copyright application. The statute provides, in pertinent part, as follows:
(b)(1) A certificate of registration satisfies the requirements of this section and section 412, regardless of whether the certificate contains any inaccurate information, unless--
(A) the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and
(B) the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration.
Importantly, the certificate of registration is valid even though it contains inaccurate information if the copyright holder lacked “knowledge that it was inaccurate.”
Unicolors, Inc. v. H&M Hennes & Mauritz, L.P. (2022)
In February 2022, the U.S. Supreme Court heard a case, Unicolors v. H&M Hennes & Mauritz, L.P., that required it to consider the scope of the phrase “with knowledge that it was inaccurate.” In that case, textile designer Unicolors, Inc. sued retailer H&M for copyright infringement, alleging H&M used its fabric designs on apparel without permission. After a trial, the jury found in favor of Unicolors, but H&M asked the trial court to grant it judgment as a matter of law. H&M argued, among other things, that Unicolors’ registration certificate was invalid (and therefore it could not sue for infringement) because the registration contained inaccurate information. H&M argued that the certificate was inaccurate because Unicolors improperly filed a single application seeking registration for 31 separate works. Under the Copyright Office regulations, a single registration can cover multiple works only if those works were “included in the same unit of publication.” H&M argued that the 31 fabric designs covered by Unicolors’ single application had not been published as a single unit of publication because some of the designs initially were made available for sale exclusively to certain customers, while others immediately were made available for sale to the public. The trial court denied the motion, finding that the registration remained effective because the inaccurate information was included without knowledge that it was inaccurate.
On appeal, the Ninth Circuit reversed the trial court’s decision. It found that Section 411(b)(1) only excused good-faith mistakes of fact, not mistakes of law.
The Supreme Court granted Unicolors’ petition for a writ of certiorari and held that the statute can excuse mistakes of fact and law. According to the Supreme Court:
Unicolors says that, when it submitted its registration application, it was not aware (as the Ninth Circuit would later hold) that the 31 designs it was registering together did not satisfy the “single unit of publication” requirement. If Unicolors was not aware of the legal requirement that rendered the information in its application inaccurate, it did not include that information in its application “with knowledge that it was inaccurate.” Section 411(b)(1)(A) (emphasis added). Nothing in the statutory language suggests that this straightforward conclusion should be any different simply because there was a mistake of law as opposed to a mistake of fact.
The Supreme Court vacated the Ninth Circuit’s opinion and remanded the case back to the Ninth Circuit for further proceedings on the issue of whether Unicolors had a valid copyright registration.
On remand from the Supreme Court, the Ninth Circuit issued a decision last month departing from its prior decision. The Ninth Circuit held that, while Unicolors’ application to register a copyright on multiple textile designs as a single-unit publication was inaccurate, it was not an abuse of discretion for the trial court to find that the error came within the statute’s safe-harbor provision because Unicolors did not submit the application knowing that it contained an error. Thus, Unicolors had a valid copyright registration, and Unicolors had the right to bring a case for infringement of the copyright against H&M.
Take-Away Point
The safe-harbor provision is intended to make it easier for authors to obtain valid copyright registrations. Its purpose is to prevent infringers from exploiting mistakes in the application process to circumvent enforcement of otherwise validly-registered copyrights. Given this purpose, it makes sense to avoid invalidation of copyrights simply because applicants had a good-faith misunderstanding of copyright law.
