By: David Ludwig  [7/25/22]

For creators who hold copyrights, the Supreme Court has issued a decision that will have wide-ranging benefits for years to come. The court’s decision in Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., issued this past February, marked a notable change to the effects of inadvertent errors on copyright applications. In this decision, the Supreme Court overturned a lower court ruling in favor of H&M, clarifying the standard for copyright invalidity due to errors in the initial copyright application.

Case Background

Unicolors initially brought a case for copyright infringement against H&M over a jacket that H&M fashioned using one of the Unicolors’ patterns. In the lower court, a jury ruled in favor of Unicolors. A judge later awarded Unicolors $750,000 in damages. On appeal to the 9th Circuit, H&M later sought a reversal, claiming that the copyright application was invalid. 

H&M claimed the application was invalid because Unicolors improperly filed 31 patterns under one application when the patterns were not all released in one instance. The 9th Circuit sided with H&M, overturning the lower court’s award and finding the Unicolors copyright application was invalid as a result of mistakes in the application filing. Unicolors appealed the 9th Circuit’s decision to the Supreme Court, arguing that the application was valid based upon a safe harbor provision that states that inaccuracies in an application do not void the registration unless “the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate”. 

Review by Supreme Court

In a 6-3 majority ruling authored by Justice Stephen Breyer, the Court found that a lack of either factual or legal knowledge can excuse an inaccuracy in a copyright registration under 17 U.S.C. § 411(b)(1)(A)’s safe harbor provision. In the majority decision, the Court focused on several factors surrounding the filing of a copyright application and also the intent and commentary of Congress surrounding § 411(b) of the Copyright Act. Most notable is the Court’s conclusion that, under § 411(b), Congress’s intent was not to forgive certain types of mistakes, mainly mistakes of fact, and not others. Concluding that the provisions of § 411(b) were meant to lessen the burden of laypersons filing copyright applications and eliminate loopholes for challengers. The decision goes further and looks at what individuals are typically filing copyright applications, noting that many laypersons file applications and could easily make a mistake of law just as easily as a mistake of fact. Justice Breyer analogizes this to a bird watcher who may not be experienced and sees a red tanager but believes it to be a cardinal. 

In the decision, the Court also looks at the standard that is usually set in copyright cases. The Court found that in cases such as this the standard is much lower stating a filer must have “reasonable grounds to know” or be “aware of facts or circumstances from which [something] is apparent.” The decision goes further to declare that since Congress was silent as to what “knowledge” within the statute means, it must have a general meaning and would include not only knowledge of the facts, but also the law. 

The dissenting justices took a different approach to the review. Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch, disputed whether the case should have been granted certiorari based upon the legal question asked in the petition. In the dissent, Justice Thomas states that the original question of law in Unicolors’ petition is a matter of what constitutes “indicia of fraud” under the “knowledge” requirements for § 411(b), but that after being granted certiorari Unicolors changed the legal question. Specifically, under their initial petition to the Court Unicolors argued that “knowledge” requires an intent to defraud the Copyright Office, whereas in their argument Unicolors decided to go with an “actual knowledge” approach. Given these facts, the dissenters felt that the Court should have dismissed the writ as “improvidently granted.” 

In the end, the Court rejected H&M’s claim that allowing safe harbor for mistakes of law allows for the filer to claim a lack of legal understanding and allows the filer to avoid the application being declared invalid. The Court explained that a claimed lack of knowledge could still be overcome by showing an applicant’s “willful blindness” or actual knowledge of the legal error. 

What does it mean going forward? 

In Unicolors, the Court clarifies outstanding questions of law regarding the ambiguous meaning of “knowledge” under § 411(b)’s safe harbor. By doing so, the Court lessens the burden on lay persons who file copyright applications. This will allow many artists and entrepreneurs to better defend their copyright claims and obtain awards for infringement in the future. Raising the bar for defendants who now must show through circumstantial evidence that the copyright holder had or should have had sufficient understanding of the law, whether through the filer’s experience or ease of understanding of the rule. 

Here, the question resolved by the Court is a narrow one. It only addresses the threshold of what knowledge means under the safe harbor. It did not address the question of what would constitute fraud in an application as originally filed in the writ of certiorari. What the case does is affirm the idea that a lay person should not bear the burden under copyright law when a bona fide mistake is made. That being said, all filers should to the best of their ability ensure that what has been filed meets all requirements, including timing and instance, in order to prevent any challenges of invalidity, should a case ever be brought. 

Dunlap Bennett & Ludwig’s experienced lawyers have filed copyright applications for a variety of clients. We have also prosecuted copyright applications and requests for reconsideration of application refusals, assisted our clients with complex licensing arrangements, and resolved a number of complicated copyright disputes. For more information on how Dunlap Bennett & Ludwig can help you with your legal needs, contact us by calling 800-747-9354 or emailing

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