UNICOLORS, INC., v. H&M HENNES & MAURITZ, L.P., Docket No. 20-915, amicus brief filed 8/10/2021

On August 10, 2021, AIPLA filed an amicus brief in the Supreme Court case, Unicolors, Inc., v. H&M Hennes & Mauritz, L.P. (Case No. 20-915). The issue presented in the case was whether the U.S. Court of Appeals for the Ninth Circuit erred 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 brief notes that the Ninth Circuit decision in the case increases the risk to copyright owners in that any erroneous legal conclusions set forth in a copyright application may have draconian repercussions. If the decision is upheld, the brief argues that it is likely to increase the costs and burdens of copyright litigation, making enforcement harder and weakening copyright protection. The brief also notes that Section 411(b) is not implicated where the allegedly incorrect information was an innocent mischaracterization of the legal status of a fact, rather than a knowing misstatement of fact.

The brief recommends two courses of action, firstly to reverse the Ninth Circuit’s decision and rule that an innocent mischaracterization of the legal status of a fact is not a knowing inclusion of inaccurate information as required by Section 411(b). It also urges the Court to recognize the inherent power of district court judges to determine whether an allegation that a registrant has knowingly included inaccurate facts is reasonably plausible or merely an innocent mischaracterization of the legal status of those facts, before referring a case to the Register of Copyrights for input as to whether the incorrect facts, if known, would have caused the Register to refuse the registration.

To read the full brief, please download the file.