The Supreme Court Gives Creative Artists a Break (For a Change)

When one reads that the author of a Supreme Court majority opinion on copyright is soon-to-be-retired Justice Stephen Breyer, a copyright attorney might fairly cringe as to what is to come. Dating way back to the SCOTUS’ opinion in Campbell v, Acuff-Rose, the Court has sided with the alleged infringer every single time. Breyer was the author of the Court’s terrible (and nearly incomprehensible) opinion in Google v. Oracle and was a notable dissenter in the case of Eldred v. Ashcroft, which approved Congress’ extension of copyright terms.

Yet, this time, Breyer and the SCOTUS gives creative artists a break. In a surprisingly brief (9 page) opinion, the Court decides that inadvertent errors in a copyright registration application do not invalidate the registration.

This is not an insignificant decision. Even though the Berne Convention (to which the US is a signatory) mandates that Berne countries not demand that artists comply with “formalities” in order to secure copyright protection, 1 the U.S. persists in requiring creative artists to file for copyright registration in order to secure certain benefits, such as the ability to file suit and seek certain remedies such as statutory damages and attorney’s fees.

The case, Unicolors, Inc. v. H&M Hennes, 2 was going to turn on the question of whether the inclusion of 31 works in a single application violated the Copyright Office requirement that the works needed to be published in the “same unit of publication.” Some of the works apparently had been published individually. 3

If this seems a little nit-picky, it is. But the remedy sought was huge. H&M, the loser in a jury trial for copyright infringement wanted that entire case dismissed because of that one mistake, which H&M contends invalidated the registration, and with it the ability of Unicolors to sue. The District Court rejected that argument, but on Appeal, the Ninth Circuit reversed, stating that errors of fact could be excused under the savings clause of Section 411(b)(1) but not errors of law. 4

Section 411(b)(1) states that a 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.”(emphasis added)

The opinion holds that this language is straightforward and unambiguous.

“Unicolors says that, when it submitted its registration application, it was not aware (as the Ninth Circuit would later hold) that the 31 designs it was registering together did not satisfy the ‘single unit of publication’ requirement. If Unicolors was not aware of the legal requirement that rendered the information in its application inaccurate, it did not include that information in its application ‘with knowledge that it was inaccurate.’ § 411(b)(1)(A) (emphasis added). 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.” 5

The Court also notes that a copyright registration asks for many items which contain mixed questions of fact and law, including the highly contentious, and frequently litigated, issue of when is a work a “work made for hire.” 6

“Inaccurate information in a registration is therefore equally (or more) likely to arise from a mistake of law as a mistake of fact. That is especially true because applicants include novelists, poets, painters, designers, and others without legal training. Nothing in the statutory language suggests that Congress wanted to forgive those applicants’ factual but not their (often esoteric) legal mistakes.” 7

What Congress really should do is eliminate registration requirement in its entirety, and come into full compliance with Berne. In the intensely anti-copyright environment we find ourselves in, the “internet age,” we need one less trap for the unwary, and one less “get out of jail free” card for infringers.


  1. Article 5, Berne Convention Treaty
  2. 142 S.Ct. 941 (2022)
  3. Id. at 945-946
  4. Id.
  5. Id. at 947
  6. Id.
  7. Id.

You can get my latest article in your email