Issues Addressed In Supreme Court 'Unicolors' Argument

The issue in Unicolors is a pure question of statutory construction. 17 U.S.C. §411(b) states:

1. A certificate of registration satisfies the requirements of this section and section 412, regardless of whether the certificate contains any inaccurate information, unless—
   1. the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and
   2. the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration.

2. In any case in which inaccurate information described under paragraph (1) is alleged, the court shall request the Register of Copyrights to advise the court whether the inaccurate information, if known, would have caused the Register of Copyrights to refuse registration.

On its face, the language in §411(b) commands that where information is included on an application for registration "with knowledge that it was inaccurate" the court "shall" seek the advice of the Copyright Office in every case in which such inaccurate information "is alleged." But prior to the Ninth Circuit ruling now on appeal in Unicolors, a number of courts had grafted a degree of discretion onto the statutory language, leaving it to the district court to determine, inter alia, whether there were sufficient indicia of fraudulent intent on the applicant's part to warrant soliciting the view of the Copyright Office. This interpretation is arguably consistent with the origin of the statutory language, which was added to the Act in 2008 as part of the so-called PRO IP Act; the Copyright Office annual report for that year states that this legislation "amended section 411 of the copyright law to codify the doctrine of fraud on the Copyright Office." The Eleventh Circuit, inter alia, agreed in Roberts v. Gordy, 877 F.3d 1024 (2017), requiring a showing of "intentional or purposeful concealment of relevant information" before consulting the Copyright Office under §411(b). The Ninth Circuit rejected this intent-based approach.

The dispute in Unicolors was a routine infringement case: Plaintiff Unicolors, a fabric designer, sued fast-fashion retailer H&M for selling clothing made with a fabric pattern created and registered by plaintiff in 2011. A jury found for plaintiff, but H&M argued in a motion for JMOL that plaintiff's registration was invalid because it included an incorrect publication date and improperly sought to register multiple works on a single application. Unicolors filed an application to register 31 separate fabric designs using a Copyright Office administrative accommodation that allows for multiple works that were included in a so-called "single unit of publication" — i.e., the works were published for the first time "bundled together" as a unit — to be registered as a single work, on a single application, for a single application fee.