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  • Writer's pictureJoseph Perry, Esq.

SCOTUS To Hear Copyright Registration Case Next Term

Updated: Mar 26, 2022

Recently, the US Supreme Court granted certiorari in Unicolors Inc. v. H&M Hennes and Mauritz, where it will tackle a technical issue in procedure concerning copyright registrations.

First, some background. Section 411 of the Copyright Act states that a copyright infringement lawsuit cannot be initiated without a copyright registration. Some minor errors may be tolerated, unless the applicant had knowledge the application was inaccurate and those inaccuracies would have caused a refusal of registration. When a lawsuit alleges a registration may have knowingly inaccurate information, a court is required to refer to the Copyright Office so it can advise whether it would have refused registration if it had been aware of the inaccurate information.

Here, H&M argued in part that Unicolors’ copyright was invalid. However, the district court rejected that argument. It held that H&M had to prove that Unicolors intended to deceive the Copyright Office. The Ninth Circuit reversed and remanded holding that the district court misinterpreted the requirements of Section 411 and stated that a copyright can be invalid if inaccurate information is in the copyright application “with knowledge” that it was inaccurate.

SCOTUS will now attempt to answer the following question: “Did the Ninth Circuit err in breaking with its own prior precedent and the findings of other circuits and the Copyright Office in holding that 17 U.S.C. § 411 requires referral to the Copyright Office where there is no indicia of fraud or material error as to the work at issue in the subject copyright registration?”


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