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Lanham Act Liability May Apply to Copyrighted Material

The US Court of Appeals for the Ninth Circuit found that liability under the Copyright Act and liability under the Lanham Act are not mutually exclusive and that liability under the Copyright Act does not negate trade dress damages under the Lanham Act. Jason Scott Collection, Inc. v. Trendily Furniture, LLC, Case No. 21-16978 (9th Cir. May 30, 2023) (Wardlaw, Bumatay, Schreier (sitting by designation), JJ.)

Jason Scott Collection (JSC) and Trendily Furniture are high-end furniture manufacturers that sell their products in the Texas market. In 2016, Trendily intentionally copied three unique furniture designs by JSC and sold them to Texas retailers. Both collections featured heavy carved wood pieces with detailed embellishments and metal elements. The record showed that Trendily’s collection had been based on photographs of the preexisting JSC collection. The Trendily pieces were so similar that even JSC had initially mistaken the furniture as its own when confronted by a retailer. After JSC filed suit, the district court granted summary judgment to JSC on its copyright claim. Following a bench trial, the district court held Trendily liable on the trade dress claim. On that claim, the district court awarded almost $133,000 in prospective lost annual profits over a period of three years, which amounted to about six times the almost $20,000 in retrospective gross profits awarded on JSC’s copyright claim. Trendily appealed.

To obtain a judgment for trade dress infringement, a plaintiff must prove that the claimed trade dress is nonfunctional, the claimed trade dress serves a source-identifying role because it is either inherently distinctive or has acquired a secondary meaning and the defendant’s product creates a likelihood of confusion. Trendily argued that JSC had not adequately established a secondary meaning (for trade dress the parties stipulated was not inherently distinctive) or likelihood of confusion. The Ninth Circuit, however, found that the district court found adequate evidence of secondary meaning through copying and through confusion by retailers and consumers in the high-end furniture market. The Ninth Circuit also found that the district court had correctly found likelihood of confusion, putting special emphasis on Trendily’s intentional and precise copying of the JSC pieces leading to retailer confusion.

Turning to the damages award, Trendily argued that because copying is a commercially acceptable and necessary act in terms of competition, Trendily should only be held liable under the Copyright Act, rather than for trade dress infringement under the Lanham Act. However, the Ninth Circuit affirmed that liability under the Copyright Act and liability under the Lanham Act are not mutually exclusive and that liability under the Copyright Act did not negate the judgment against Trendily for trade dress damages under the Lanham Act. The Court then affirmed the trade dress damages award, finding that the prospective damages incurred when one of JSC’s business relationships fell apart because of Trendily’s copied furniture were reasonably foreseeable and had been “satisfactorily demonstrated.” The Court emphasized that the law only required “crude measures of damages in cases of intentional infringement.”

Finally, the Ninth Circuit affirmed [...]

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First Circuit: Claim Preclusion Shouldn’t Apply to Bar Claims Under VARA

Addressing for the first time whether federal res judicata law recognizes the alternative determinations doctrine, the US Court of Appeals for the First Circuit determined that a plaintiff’s claims under the Visual Artists Rights Act (VARA) were not precluded by a previous action in which she brought a federal copyright claim against the defendant. Foss v. Eastern States Exposition, Case No. 22-1313 (1st Cir. May 10, 2023) (Barron, Howard, Montecalvo, JJ.)

Cynthia Foss previously brought a federal copyright action against Eastern States Exposition that was dismissed. The previous action did not involve any claim under VARA. Eastern argued that claim preclusion should apply to bar the claim, and the district court agreed. Foss appealed.

To establish federal claim preclusion, a party must establish that there is a final judgment on the merits in an earlier suit, sufficient similarity between the causes of action asserted in the earlier and later suits, and sufficient identicality between the parties in the two suits. Foss did not dispute that the first and third requirements were satisfied, and thus the First Circuit’s decision turned on whether the second requirement was met.

Foss argued that the “alternative determinations” doctrine should apply. This doctrine strips a dismissal of claim preclusive effect if the dismissal rests on multiple grounds, not all of which would on their own render the dismissal claim preclusive. Whether the doctrine should apply was a matter of first impression in the First Circuit. Foss argued that the previous dismissal was in part based on “her failure to allege that she had satisfied the registration-related precondition to copyright infringement suits under § 411(a),” which was not a merits-based dismissal and therefore had no preclusive effect. Eastern argued that even if the First Circuit adopted the alternative determinations doctrine, the Court should limit the doctrine because the district court “rigorously considered” the merits-based rationale for dismissal in the previous action.

The First Circuit adopted the alternative determinations doctrine and rejected Eastern’s contention that the doctrine should not apply in the instant case because Eastern did not provide support for the contention that the district court in the previous action “rigorously considered” the merits-based grounds for dismissal of Foss’s federal copyright claims. The Court then remanded the case for further consideration, noting that Eastern might argue that the alternative disputes doctrine should be limited in this instance because of Foss’s failure to allege satisfaction of the precondition to suit, which might be prejudicial to Eastern.




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Same Old Story: Copyright Discovery Rule Still Applies

The US Court of Appeals for the Fifth Circuit affirmed a district court’s infringement determination, finding that the copyright owner’s claims were timely since they were brought within three years of discovering the infringement. Martinelli v. Hearst Newspapers LLC, Case No. 22-20333 (5th Cir. Apr. 13, 2023) (Barksdale, Southwick, Higginson, JJ.)

In 2015, Sotheby’s International Realty commissioned Antonio Martinelli to photograph an Irish estate owned by the Guinness family. Martinelli took seven photographs of the property, and the property was subsequently listed for sale. On March 7, 2017, Hearst Newspapers used those commissioned photographs in news articles discussing the sale in various Hearst publications. Over the next few years, Martinelli learned about Hearst’s use of the photographs. For instance, on November 17, 2018, Martinelli learned about the use of the photographs in the Houston Chronicle, and between September 2019 and May 2020, Martinelli learned about further use of the photographs in the San Francisco Chronicle, the Times Union, the Greenwich Time, the Middletown Press and the Elle Décor website. Based on these uses, Martinelli sued for copyright infringement on October 18, 2021—more than three years after the initial publication but less than three years after Martinelli discovered the publication.

Hearst stipulated both to infringement and that Martinelli could not have discovered the use of the copyrighted photographs at an earlier time. Instead, Hearst argued that Martinelli was too slow in bringing his infringement action since, under 17 U.S.C. § 507(b), the action must be brought within three years of the infringement, regardless of a plaintiff’s knowledge or diligence. The district court disagreed, holding that § 507(b) follows the discovery rule, which means the limitations period only begins when the plaintiff knows or has reason to know of the injury. Hearst appealed.

Hearst argued that the district court’s decision ran afoul of the Supreme Court’s 2019 decisions in Petrella v. MGM and Rotkiske v. Klemm. According to Hearst, under Petrella and Rotkiske, the discovery rule cannot apply to § 507(b) and the limitations period starts “when the plaintiff has a complete and present cause of action.” The Fifth Circuit disagreed.

The Fifth Circuit began by explaining that unless unequivocally overruled by a Supreme Court decision, an en banc court or a change in law, it was bound by its 2014 decision in Graper v. Mid-Continent Casualty, which held that the limitations period starts running “once the plaintiff knows or has reason to know of the injury upon which the claim is based.” Since neither party asserted that there had been an en banc decision or a change in the law, the only question was whether Petrella or Rotkiske overruled Granger.

Since the Supreme Court explicitly refused to address whether the discovery rule applied to § 507(b) in Petrella, the Fifth Circuit refused to read Petrella as overruling Graper. Turning to Rotkiske, the Fifth Circuit noted the Supreme Court’s statement that “[i]f there are two plausible constructions of a statute of limitations, we generally adopt the construction that starts the time limit running when the [...]

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Nitpicking Allowed When Determining Statutory Damages

On the second round of a copyright dispute, the US Court of Appeals for the Seventh Circuit affirmed in part, reversed in part and remanded (again) to the district court to apply the “independent economic value test” handed down by the Court in the first iteration of the dispute to determine what constitutes as “one work” for purposes of calculating statutory damages where a jury finds infringement on multiple works registered in a single copyright application. Amy Lee Sullivan, dba Design King v. Flora Inc., Case No. 15-cv-298 (7th Cir. Mar. 31, 2023) (Flaum, Scudder, Eve, JJ.)

In 2013, graphic design artist Amy Sullivan sued herbal supplemental company Flora for copyright infringement after Flora used Sullivan’s illustrations in a manner exceeding the scope of the parties’ license agreement. The district court instructed the jury that Sullivan could receive separate statutory awards for 33 acts of infringement on 33 individual illustrations, which were the subject of two separate US copyright registrations, as compilations. The jury issued a statutory damages award of $3.6 million. Flora appealed.

In its decision on the first appeal, the Seventh Circuit adopted the independent economic value test to address the standard for determining whether multiple related works of authorship are each entitled to a separate statutory damages award, or if the related works constitute one compilation warranting only a single statutory damages award. Because the record in Sullivan’s case was insufficient to make that determination and assess proper damages, the Seventh Circuit remanded to the district court to determine whether Sullivan’s illustrations had standalone “distinct and discernable value to the copyright holder.”

On remand, the district court found that Flora waived several arguments challenging the independent economic value of certain of Sullivan’s illustrations, and therefore entered the same jury verdict. Flora appealed again.

After a lengthy analysis on the scope of remand, the Seventh Circuit found that the district court violated its mandate on remand because it did not put the independent economic value assessment to a jury, and instead decided the factual issue on the same record the appeals court had previously found insufficient. The Court then moved to its summary judgment analysis and reiterated the independent economic value test for considering whether Sullivan’s 33 illustrations constituted 33 individual works or instead were parts of two compilations. The Court articulated several relevant factors that went into its totality of the circumstances analysis, including whether the copyright holder marketed or distributed the works independently or as a compendium, whether the works were produced together or separately, how the works were registered for copyright protection and, ultimately, whether the market assigned value to the works.

The Seventh Circuit concluded that Flora raised facts and arguments relating to the independent economic value test that were within the scope of remand and not waived. Flora was not prohibited from arguing several primary positions. First, Flora noted that it provided Sullivan with only two invoices for both “illustration collections,” and Sullivan registered the illustrations in two compilation copyrights, [...]

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Not Today, HAL: Copyright Still Requires Human Input

The US Copyright Office (USCO) issued a policy statement on March 16, 2023, clarifying its position on the use of artificial intelligence (AI) in copyrighted materials. This statement came in the wake of the USCO’s recent decision to revoke partial copyright protection over AI-generated images in a graphic novel.

The USCO had previously issued copyright registration to Kris Kashtanova for a graphic novel. Upon learning that the images had been generated using Midjourney, an AI that produces images based on text prompts, the USCO revoked copyright protection over the images consisting of mixed text and images. Zarya of the Dawn, Registration No. VAu001480196 (USCO, Feb. 21, 2023) (Kasunic, Asso. Register of Copr.)

The USCO explained that the images lacked the requisite “minimum creative spark” required to make the images copyrightable. The USCO further emphasized that a human author with ultimate creative control is necessary for copyright protection and that providing an AI with word prompts is insufficient to qualify. Therefore, the copyright registration for the images in Kashtanova’s novel was revoked. However, because the work consisted of images and text and the text was all written by Kashtanova, that aspect of the work did satisfy the requirements for copyright protection and retained its registration. The USCO did allow that if Kashtanova could exhibit “substantive edits” to an AI-generated image, those edits could prove human authorship and therefore qualify the image for copyright protection.

In its March 16 policy statement, the USCO reiterated that non-humans are firmly excluded from authorship and, therefore, solely AI generated works are ineligible for copyright registration. Applicants should not list AIs as authors, but authors do have a duty to disclose the use of AI in their work and provide an explanation of their own human contribution compared to that of the AI. The USCO explained that the use of AI tools does not necessarily exclude a work from copyright registration. The salient issue in such cases would be the extent of creative control that the human author had over the work and its creative expression. As long as the human-made modifications to the AI-generated work meet the “minimum creative spark” requirement, such works could be subject to copyright protection.




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Out of Tune: Eleventh Circuit Permits Retrospective Relief for Timely Copyright Claims under Discovery Rule

The US Court of Appeals for the Eleventh Circuit furthered a circuit split in holding that, as a matter of first impression, a copyright plaintiff’s timely claim under the discovery rule is subject to retrospective relief for infringement occurring more than three years before the suit was filed. Nealy v. Warner Chappell Music, Inc., Case No. 21-13232 (11th Cir. Feb. 27, 2023) (Wilson, Jordan, Brasher, JJ.)

Section 507(b) of the Copyright Act includes a three-year statute of limitations that runs from the time the claim accrues, and a claim may only accrue one time under the discovery rule. In 2014, the US Supreme Court held in Petrella v. Metro-Goldwyn-Mayer, Inc., that the equitable doctrine of laches does not bar copyright claims that are otherwise timely under the three-year limitations period set forth in § 507(b). The circuits are split on Petrella’s application—the Second Circuit strictly limits damages from copyright infringement to the three-year period before a complaint is filed, whereas the Ninth Circuit permits retrospective relief for infringement occurring more than three years before the lawsuit’s filing as long as the plaintiff’s claim is timely under the discovery rule.

Music Specialist and Sherman Nealy (collectively, Music Specialist) filed a copyright infringement suit against Warner alleging that Warner was using Music Specialist’s musical works based on invalid third-party licenses and in violation of 17 U.S.C. § 501. The alleged copyright infringement occurred as early as 10 years before Music Specialist filed the present lawsuit. The district court denied Warner’s motion for summary judgment on statute of limitation grounds, finding that there was a genuine dispute of material fact regarding when Music Specialist’s claim accrual occurred. In a separate order, the district court certified for interlocutory appeal whether “damages in this copyright action are limited to the three-year lookback period as calculated from the date of the filing of the Complaint pursuant to the Copyright Act and Petrella.” Music Specialist appealed.

The Eleventh Circuit concluded that where a copyright plaintiff has a timely claim for infringement occurring more than three years before the filing of the lawsuit, the plaintiff may obtain retrospective relief for that infringement. The Court found that Petrella focused on the application of 17 U.S.C. § 507(b) to claim accrual under the injury rule, not the discovery rule, and was therefore inapplicable. The injury rule precludes recovery for harms occurring earlier than three years before the plaintiff files suit. On the other hand, the discovery rule permits damages recovery for infringing acts that copyright owners reasonably become aware of years later. Therefore, the discovery rule permits timely claims for infringement that occurred more than three years before the suit. The Eleventh Circuit found that the Supreme Court expressly reserved application of the discovery rule’s propriety for a future case and that, in the Eleventh Circuit’s opinion, the plain text of the Copyright Act does not place a time limit on remedies for an otherwise timely claim.

Practice Note: The Eleventh Circuit disagreed with the Second Circuit’s [...]

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Nothing Lasts for Everly, Not Even Copyright Co-Authorship Rights

Addressing a novel issue, the US Court of Appeals for the Sixth Circuit ruled that a statute of limitations can time-bar a defense in narrow circumstances where a defendant uses it to seek affirmative relief. Garza v. Everly, Case No. 21-5530 (6th Cir. Feb. 10, 2023) (Bush, Guy, JJ.) (Murphy, J., concurring).

After successful careers writing and recording music as the Everly Brothers, Don and Phil Everly disputed copyright ownership of certain songs. Don sued Phil’s estate, seeking declaratory judgment that Don was the sole author of “Cathy’s Clown.” After a bench trial, the district court held that Don repudiated Phil’s co-authorship of “Cathy’s Clown” and Phil failed to reassert his co-authorship rights within the three-year timeframe provided by the Copyright Act. The trial court also ruled that Phil’s estate was “time-barred from asserting he was a co-author as a defense,” since the Copyright Act time-barred him from asserting the same as a claim. Don died in the interim, and Phil’s estate appealed.

There were three issues on appeal:

  • Whether the lower court improperly applied the Copyright Act’s scheme for authorship claims
  • Whether the finding of Don’s repudiation was erroneous
  • Whether the court erred in applying the statute of limitation to Phil’s defense.

Regarding the authorship issue, the Sixth Circuit explained that the Copyright Act allows authors to transfer ownership of works while retaining certain rights, including a termination right that lets authors later reclaim copyright ownership. Phil’s estate argued that because termination rights are inalienable, the trial court erred in finding that Phil was not a co-author since he should have had the opportunity to reclaim his rights. The estate also argued that any statute of limitations regarding Phil reclaiming co-authorship should not have started tolling until all of Phil’s descendants learned of these rights. The Sixth Circuit disagreed, explaining that the lower court properly applied the Copyright Act. Because Phil did not dispute repudiation within the statutory period, the trial court correctly denied his co-ownership. Furthermore, the statute of limitations does not “refresh itself” when an owner dies, because descendants cannot obtain rights a decedent had forfeit.

Addressing the repudiation issue, the Sixth Circuit found ample trial evidence supporting the trial court’s conclusion. The evidence included 1980s vintage letters, phone calls, and a “Release and Assignment” Phil signed containing language relinquishing his co-authorship rights in “Cathy’s Clown.” There was also credible testimony that Don “plainly and expressly repudiated Phil’s authorship” decades prior.

Finally, addressing the statute of limitations defense, the Sixth Circuit affirmed the trial court. In doing so, it noted that Phil’s estate originally argued that Phil remained a co-author of “Cathy’s Clown” as a counterclaim to Don’s suit. It was only after Don successfully argued that the claim was time-barred that Phil’s estate “reframed the counterclaim into a defense.” The Court explained the general policies underpinning statutes of limitation and noted that they typically do not bear on defenses because plaintiffs could otherwise wait out the statutory periods for defenses before suing. However, this [...]

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Message Received: US Courts Are Appropriate, More Convenient Venue to Adjudicate US IP Disputes

Addressing personal jurisdiction and forum non conveniens in a software licensing dispute, the US Court of Appeals for the Fourth Circuit upheld a district court’s exercise of personal jurisdiction over a Dutch entity and the court’s decision to not dismiss the case for forum non conveniens. dmarcian, Inc. v. dmarcian Europe BV, Case Nos. 21-1721; -2005 (4th Cir. Feb. 14, 2023) (Wilkinson, Heytens, Hudson, JJ.)

dmarcian is a North Carolina-based software company that developed software to help email users authenticate incoming emails. A Dutch businessman who owned Mailmerk contacted dmarcian to offer to market the software in Europe. While dmarcian was initially unreceptive to the offer, the two parties eventually reached an oral agreement for Mailmerk to rebrand as dmarcian Europe BV (dmarcian BV) and sell the dmarcian software in Europe and Africa.

A dispute arose when dmarcian BV claimed ownership of portions of the dmarcian source code. dmarcian BV filed suit in the Netherlands, eventually filing for and winning injunctive relief in the Netherlands when dmarcian terminated dmarcian BV’s license. dmarcian then filed suit in the Western District of North Carolina asking for a preliminary injunction against dmarcian BV, which dmarcian BV opposed with a motion to dismiss for forum non conveniens. The district court denied the motion to dismiss and entered a preliminary injunction that precluded dmarcian BV from operating outside of Europe and Africa and required dmarcian BV to stop using the registered “dmarcian” trademark without a disclaimer. The district court later found dmarcian BV in contempt for violating the preliminary injunction and ordered dmarcian BV to pay $335,000 in sanctions. dmarcian BV appealed the injunction and the sanctions.

dmarcian BV argued that the district court did not have personal jurisdiction. The Fourth Circuit rejected that argument, finding that the North Carolina long-arm statute authorized jurisdiction over dmarcian BV. The Court found that the application of the long-arm statute to dmarcian BV complied with due process because dmarcian BV worked closely with the dmarcian team in North Carolina (e.g., receiving sales leads, attending virtual meetings, coordinating software development), dmarcian BV sought out dmarcian to initiate business, and there was a strong interest in protecting intellectual property rights in North Carolina.

The Fourth Circuit also upheld the denial of the dismissal for forum non conveniens because the Dutch court was not an adequate alternative forum since Dutch courts cannot effectively adjudicate US trademark claims. The Fourth Circuit found that any judgment by the Dutch court would have little effect in the United States and would deny relief to dmarcian for the infringement of its rights.

The Fourth Circuit upheld the preliminary injunction grant, finding that the district court properly applied US and North Carolina law extraterritorially and that dmarcian was likely to succeed on all claims. The Court found that US laws properly applied and that dmarcian was likely to succeed on the following claims:

  • Copyright infringement, because there was a registered copyright, dmarcian BV reproduced elements of the source code outside of the licensing agreement, and [...]

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2023 IP Outlook: What to Watch in Patent, Trademark and Copyright Law

Coming out of 2022, developments around the globe are shaping the intellectual property (IP) landscape in the new year. We are seeing cases at the intersection of IP law and NFTs, the opening of the Unified Patent Court in Europe, and decisions from the Supreme Court of the United States and the Court of Appeals for the Federal Circuit affecting innovators and brand owners.

McDermott’s 2023 IP Outlook examines the top trends and decisions in IP law from the past year and shares what you and your business should look out for in the year ahead.

The Latest in SEP Licensing

Amol Parikh

The uncertainty surrounding standard essential patent (SEP) licensing persisted in 2022 and shows little sign of clearing in 2023. SEPs must be licensed to technology implementers on fair, reasonable and nondiscriminatory (FRAND) terms. Because there is no formal definition of FRAND terms, however, legal decisions involving FRAND have historically been determined by courts and non-governmental standard-setting organizations (SSOs). Disputes are frequent—especially between patent owners and technology implementers—and are becoming even more so as advanced wireless technologies such as 5G and WiFi 6 proliferate. Read more.

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Improper Inventorship in US Patent Litigations

Mandy H. Kim | Cecilia Choy, Ph.D.

Inventorship issues can have serious implications in patent litigation, leading to invalidation or unenforceability of the patent at issue, as seen in several notable 2022 cases. In the coming year, patent owners should take steps to minimize risks related to improper inventorship challenges. Read more.

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Patent Decisions Affecting Pharma and Biotech Companies

Douglas H. Carsten | Anisa Noorassa

The past year brought many developments in the life sciences patent legal space. Three decisions in particular hold potential ramifications for drug makers and patent holders in 2023. This year, the Supreme Court of the United States is also expected to consider standards patents claiming a genus must meet to withstand a validity challenge under Section 112—a ruling that could have a significant impact on patent holders in the biotech industry. Read more. 

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Trends in the Western District of Texas

Syed K. Fareed | Alexander Piala, Ph.D. | Christian Tatum

Over the past year, two developments infiltrated the Western District of Texas (WDTX) which may decrease the success of venue transfers and keep case volume steady in 2023. These developments could also give plaintiffs more control over where litigation takes place, including more control over having a case tried before Judge Alan Albright in the Waco Division of the WDTX.
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After Supreme Court Remand, Copyright Infringement Claims Upheld in View of Registrant’s Unknown Inaccuracies

In February 2022, the Supreme Court of the United States held in Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., that lack of either factual or legal knowledge on the part of a copyright holder can excuse an inaccuracy in the holder’s registration under the Copyright Act’s safe-harbor provision, 17 U.S.C. §411(b)(1), which governs the effect of inaccurate information in a copyright application. In light of this decision, the Supreme Court remanded the copyright dispute between textile design company Unicolors and global fast-fashion retail giant H&M Hennes & Mauritz to the US Court of Appeals for the Ninth Circuit for further proceedings on the issue of whether Unicolors held a valid copyright in a 2011 textile design asserted in its copyright infringement claim against H&M. On remand, the Ninth Circuit concluded that under the correct standard confirmed by the Supreme Court, Unicolors held a valid copyright registration because the factual inaccuracies in its application were excused by the safe-harbor provision. The Ninth Circuit affirmed the prior jury verdict against H&M for copyright infringement and remanded with respect to the issue of damages only. Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., Case Nos. 18-56253; -56548 (9th Cir. Nov. 10, 2022) (Bea, Bade, McCalla, JJ.)

The Copyright Act safe-harbor provision saves a copyright registration from invalidity when the application contains errors, except when the copyright registrant knowingly transmitted inaccurate material facts to the US Copyright Office. After the Supreme Court made it clear that “[l]ack of knowledge of either fact or law can excuse an inaccuracy in a copyright registration,” the Ninth Circuit was charged with determining whether Unicolors submitted its copyright application with knowledge that the information therein was factually inaccurate and with knowledge that the application failed to comply with the specific governing legal requirements. The Court first analyzed the validity of Unicolors’s asserted copyright registration, then addressed the remaining issues raised by H&M on appeal.

The Ninth Circuit’s first step in the validity assessment was to determine whether Unicolors’s application did, in fact, contain an inaccuracy. As in its prior decision, the Court concluded that the application was inaccurate because Unicolors registered a collection of 31 separate fabric designs as a single-unit publication when those 31 works were not initially published as a singular bundled collection, as required under the Copyright Act.

The second step of the Ninth Circuit’s inquiry looked at whether Unicolors submitted its copyright application knowing that it contained errors. This is where the Court departed from its prior decision and affirmed the district court’s decision regarding the validity of the registration. Specifically, the Court found that the single-unit registration issue was an unsettled question of law at the time of Unicolors’s application, such that Unicolors did not know that it submitted an application containing false information because it lacked the requisite knowledge of inaccuracy and lacked an intent to defraud the Copyright Office. Finding Unicolors’s copyright registration valid, the Court determined that Unicolors could maintain its copyright infringement claim against H&M.

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