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U.S. Supreme Court Could Make Copyright Officer Significant Player In Copyright Infringement Litigation
On June 1, the U.S. Supreme Court granted certiorari in Unicolors v. H&M Hennes & Mauritz, L.P., 959 F.3d 1194 (9th Cir. 2020) (Unicolors), to address 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?" The issue appears to be a pure question of statutory interpretation, with the language of §411 pointing in one direction but the views of other courts and the Copyright Office arguably pointing the other way. An affirmance of the Ninth Circuit ruling could make the Copyright Office a more significant player in copyright infringement litigation, by requiring the Register to weigh in more often on the validity of registrations.
District Court Proceeding
The plaintiff in Unicolors is a fabric designer. The defendant H&M is a "fast fashion" apparel company based in Sweden with locations throughout the U.S. and worldwide. It is reportedly the second largest clothing retailer in the world. Beginning in 2015, H&M sold clothing made with a fabric copied from an original design created and registered by Unicolors in 2011. Litigation ensued, and a jury found that the H&M design was substantially similar to the Unicolors design. H&M argued, however, that Unicolors' copyright registration was invalid because it improperly claimed protection for multiple works as a "single work," in violation of Copyright Office regulations.
The alleged violation was this: In order to save money, Unicolors had filed a single Form VA application covering 31 separate works (the '400 Registration), claiming the designs were all included in a "single unit of publication" in January 2011. The application claimed a publication date of Jan. 15, 2011, which was the date of a closed, company-only meeting at which the designs were first shown to salespeople, not to the general public. By regulation, such a showing is not a "publication," so the date was incorrect. More significantly, however, the design at issue in the lawsuit was a so-called "confined" design, made exclusively for a particular customer, thus it was never placed in a showroom for public viewing or otherwise made available with the other 30 designs in a "single unit of publication."
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