The Court has decided the case of Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., holding that lack of knowledge of either fact or law can excuse an inaccuracy in a copyright registration. Reversing the Ninth Circuit, the Court held that the appeals court was wrong to overturn a copyright infringement verdict that a fabric designer won against fast-fashion chain H&M when it ruled that inadvertent legal errors cannot be the basis for challenging a copyright registration.

A copyright registration will be held invalid if a registrant included materially inaccurate information in its application “with knowledge that [the information] was inaccurate.” 17 U. S. C. §411(b)(1)(A). H&M had alleged such an inaccuracy in Unicolors having filed a single application seeking registration for 31 separate works despite a Copyright Office regulation that provides that a single application may cover multiple works only if they were “included in the same unit of publication.” H&M argued that Unicolors did not meet this requirement because Unicolors had initially made some of the 31 designs available for sale exclusively to certain customers, while offering the rest to the general public. The trial court found that Unicolors did not know that it had failed to satisfy the “single unit of publication” prerequisite and so was protected by the safe-harbor provision of the Copyright Act. The Ninth Circuit held that the safe harbor excuses only mistakes of fact, not (as was the case here) mistakes of law. The Court’s majority, in an opinion written by Justice Breyer, and joined by the Chief Justice and Justices Sotomayor, Kagan, Kavanaugh, and Barrett, held that Section 411(b) does not distinguish between a mistake of law and a mistake of fact.

Justice Thomas, joined by Justices Alito and Gorsuch, would dismiss the petition as improvidently granted because he concluded that Unicolors relied on a different argument after review was granted than the question concerning fraud that it had asked the Court to decide in its petition for review. He would not “reward Unicolors for its legerdemain.”

The majority opinion displays a detailed textual analysis that appealed to both conservatives and liberals. It is always interesting to see, however, that the three Trump appointees do not always agree with one another. The opinion also exhibits quintessential Breyer pragmatism—the sort of thing for which he will be most remembered as he moves into retirement.

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