[author: London Lundstrum]

The Supreme Court recently issued a surprising opinion regarding the safe harbor provision of the Copyright Act: If an applicant makes a mistake of fact or law in their application, the registration will still be valid. At first glance, the decision, in Unicolors, Inc. V. H&M Hennes & Mauritz, L. P., seems to undercut the statutory requirements for successful registration and opens the door for any applicant to claim they “made a mistake” and go on to register their copyright and maintain a suit for its infringement. A deeper dive reveals that this is not necessarily the case.

Unicolors, Inc., the owner of copyrights in various fabric designs, sued H&M for copyright infringement. Lawsuits of this nature cannot be maintained unless the plaintiff holds a valid copyright registration. H&M argued in defense that Unicolors lacked just such a valid registration because it had included inaccurate information on its application seeking registration for 31 separate works.

By law, a single application may cover multiple works only if they were “included in the same unit of publication.” H&M stated that Unicolors had made some of these 31 works available to the public while others were offered exclusively to certain customers, thus rendering the registration invalid.

Unicolors conceded the mistake but invoked the protection of the safe harbor provided by § 411(b)(1)(A) of the Copyright Act, under which a “certificate of registration is valid regardless of whether the certificate contains any inaccurate information, unless (A) the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and (B) the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration.” (A safe harbor is a legal provision that certain specified conduct will be deemed not to violate a given rule.)

The Supreme Court held that “knowledge,” the critical word here, means “the fact or condition of being aware of something” and, in this instance, the statute does not differentiate between factual knowledge and legal knowledge. This matters because the “single unit of publication” requirement necessitates legal interpretation.

Unicolors did not know that the 31 designs it was registering together did not satisfy the “single unit of publication” requirement and therefore did not violate the safe harbor provision by including information in its application “with knowledge that it was inaccurate.” As the court noted, “Nothing in the statutory language suggests that this straightforward conclusion should be any different simply because there was a mistake of law as opposed to a mistake of fact.”

The Court based its interpretation on the fact that other statutory provisions regarding registration applications call for information that requires both legal and factual knowledge. If Congress had intended to exclude legal mistakes, it would have said so. Further, there is ample precedent for holding that inadvertent mistakes on registration certificates do not invalidate a copyright and thus do not bar infringement actions.

H&M argued that the interpretation ultimately adopted by the Court makes it too easy for copyright holders to avoid the consequences of an inaccurate application by claiming lack of knowledge. The Court noted, however, that willful blindness may support a finding of actual knowledge. Also, factors such as the significance of the legal error, the complexity of the relevant rule, and the applicant’s experience with copyright law, may lead a court to find that an applicant was actually aware of, or willfully blind to, legally inaccurate information.

While these observations are helpful, there remain several issues which the Court did not address. For example, is a good faith mistake a rebuttable presumption? Alternatively, is absence of a good faith mistake an affirmative defense? Whose burden is it to prove a good faith mistake or the absence thereof?

Ultimately, we must wait and see how the lower courts apply the new standard. For now, we can take away that everybody makes mistakes and not all of them will cost applicants a chance to enforce their copyrights.