Supreme Court Will Hear Copyright Case: How its Decision May Impact the Validity of Future Copyright Registrations

Murtha Cullina
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A copyright claimant may commence an infringement suit when the Copyright Office registers a copyright. See Fourth Est. Pub. Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 885, 203 L. Ed. 2d 147 (2019); 17 U.S.C. § 411(a). Some minor inaccuracies in a certificate of copyright registration are tolerated unless the applicant had knowledge that the application included inaccurate information and those inaccuracies would have caused the Register of Copyrights to refuse the registration. An issue arose in which the Ninth Circuit determined that the District Court was wrong in holding that an “intent-to-defraud” requirement is needed for the Court to invalidate a copyright registration. See Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 959 F.3d 1194, 1196 (9th Cir. 2020). Generally, the court is required to refer to the Copyright Office when a lawsuit alleges a registration contains knowingly inaccurate information so that the Office may advise whether it would have refused registration had it been aware of the inaccuracy. See 17 U.S.C. § 411 (b). This requirement makes clear that the Copyright Office is intended to serve as the deciding authority in determining whether a registration would have been refused. On June 1, 2021, the U.S. Supreme Court granted fabric designer, Unicolors, Inc.’s petition for a writ of certiorari over its copyright infringement suit against fast fashion retailer, Hennes & Mauritz, L.P. (“H&M”). The Court agreed to review the Ninth Circuit decision, in which it will consider whether the Ninth Circuit erred in its holding that 17 U.S.C. § 411 requires referral to the Copyright Office even when evidence of fraud or material errors do not exist within the copyright registration.

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