The Court has decided the case of Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., holding that lack of knowledge of either fact or law can excuse an inaccuracy in a copyright registration. Reversing the Ninth Circuit, the Court held that the appeals court was wrong to overturn a copyright infringement verdict that a fabric designer won against fast-fashion chain H&M when it ruled that inadvertent legal errors cannot be the basis for challenging a copyright registration.

A copyright registration will be held invalid if a registrant included materially inaccurate information in its application “with knowledge that [the information] was inaccurate.” 17 U. S. C. §411(b)(1)(A). H&M had alleged such an inaccuracy in Unicolors having filed a single application seeking registration for 31 separate works despite a Copyright Office regulation that provides that a single application may cover multiple works only if they were “included in the same unit of publication.” H&M argued that Unicolors did not meet this requirement because Unicolors had initially made some of the 31 designs available for sale exclusively to certain customers, while offering the rest to the general public. The trial court found that Unicolors did not know that it had failed to satisfy the “single unit of publication” prerequisite and so was protected by the safe-harbor provision of the Copyright Act. The Ninth Circuit held that the safe harbor excuses only mistakes of fact, not (as was the case here) mistakes of law. The Court’s majority, in an opinion written by Justice Breyer, and joined by the Chief Justice and Justices Sotomayor, Kagan, Kavanaugh, and Barrett, held that Section 411(b) does not distinguish between a mistake of law and a mistake of fact.

Justice Thomas, joined by Justices Alito and Gorsuch, would dismiss the petition as improvidently granted because he concluded that Unicolors relied on a different argument after review was granted than the question concerning fraud that it had asked the Court to decide in its petition for review. He would not "reward Unicolors for its legerdemain."

The majority opinion displays a detailed textual analysis that appealed to both conservatives and liberals. It is always interesting to see, however, that the three Trump appointees do not always agree with one another. The opinion also exhibits quintessential Breyer pragmatism—the sort of thing for which he will be most remembered as he moves into retirement.

Back to Commercial Litigation Update Blog

Search This Blog

Blog Editors


Related Services



Jump to Page


Sign up to receive an email notification when new Commercial Litigation Update posts are published:

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.