The copyright bar got some attention at the Supreme Court recently with the decision in Unicolors v. Hennis & Mauritz LLP (H&M). Originating from the Central District of California, this decision ended up being a victory for pro se applicants — with a caveat.
Unicolors filed a copyright infringement action against H&M for using Unicolors’ fabric designs. H&M responded that Unicolors’ copyright application indicated the registration was granted improperly because Unicolors had not adhered to the “single unit of publication” requirement. Typically, if someone wants to include multiple designs under one application, that can only be done if all works were published at the same time. Unicolors had incorrectly claimed that all 31 fabric designs on its application were “published” at the same time — but they were not published together.
H&M noted that not all of Unicolors’ 31 designs had gone on sale at the same time, and that some were in fact not meant for the public at all (but instead were released for previews only to the designer’s VIP customers). The issue turned into whether an error like that — failing to accurately describe a collection’s publication — was enough to cancel the registration.
The District Court found that Unicolors’ error was not fatal to the application. H&M appealed to the Ninth Circuit, which reversed. H&M prevailed in convincing the appellate court that Unicolors was not entitled to the safe harbor afforded to applicants by Copyright Act §411(b)(1)(A):
[an application will be registered] “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.”
For its part, Unicolors said it did not know that it had failed to satisfy the single unit publication requirement when it filed the application. Unicolors just didn’t know the law. H&M countered that §411(b)(1)(A) only protected against mistakes of fact, not mistakes of law. It went on to bring up the familiar, “Ignorance of the law is no excuse.” H&M also argued that if it did not prevail, it would be too easy for copyright holders to cheat by merely claiming ignorance.
Justice Breyer seemed to believe that if Unicolors had known the law, it wouldn’t have made a misstatement on the application. He said, in the majority’s decision — with justices Thomas and Alito dissenting — that §411(b)(1)(A) does not distinguish between whether the mistake was of law or a mistake of facts.
Clearly, Justice Breyer is a bird watcher, because he made a detailed analogy involving different types of birds. He said if someone saw a bird and announced that it was a cardinal, but did not notice it had black wings — they would have drawn an erroneous conclusion. The observer had not purposely left out the black wings in their description. Would it make a difference that he did not know the right label for the bird? It only meant that they were not an ornithologist; it would not mean they knowingly misstated the type of bird. Analogously, Justice Breyer would give the benefit of the doubt that a copyright applicant who misapplied the “single unit doctrine” did not intend to mislead the Copyright Office; rather, the Court should acknowledge that the applicant was not learned in the ways of copyright; they were not lawyers (or ornithologists).
This decision might appear on its surface to encourage a layperson to file for copyright registration without a lawyer, because one who is knowledgeable in the ways of copyright might be held to a higher standard. At the same time, Unicolors’ legal journey was an arduous way to protect their fabric designs. Though they probably thought they’d save money by filing copyright applications themselves, a copyright attorney who filed the applications correctly in the first place might have been less expensive, after all. Litigating all the way up to the Supreme Court of the United States could not have been cheep-cheap.
