Friday, 18 June 2021 12:06

In a Copyright Dispute Between Fashion Brands H&M and Unicolors, the U.S. Supreme Court Agrees to Review 17 U.S.C. § 411(b)

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In Unicolors, Inc. v. H&M Hennes & Mauritz, LP., the U.S. Supreme Court (SCOTUS) granted certiorari to review copyright statute 17 U.S.C. § 411(b), which covers registration and civil infringement actions.

The case was originally filed in the Central District of California during 2016 by Unicolors over a geometric pattern that it accused fast-fashion leader H&M of copying. In December 2017, a jury entered a judgment against H&M of nearly $850,000 after finding willful infringement.[1] H&M appealed arguing that, because Unicolors allegedly included false information in its application with the Copyright Office, it did not have a valid copyright registration for the work at issue. Specifically, when it applied for registration with the Copyright Office, Unicolors included the disputed pattern in a collection as a “single unit.” Importantly, the Copyright Office requires that, to register a number of works as a single unit of publication, the works must be first published on the same date.[2] Accordingly, H&M argued that Unicolors’ single unit collection of thirty-one designs did not actually share the same date of first publication, rendering the registration invalid. The 9th Circuit reversed, finding that the district court erred in “imposing an intent-to-defraud requirement for registration invalidation” and in determining that Unicolors’ application for “a collection of works did not contain inaccuracies” that would render it invalid.[3]

The questions presented to SCOTUS are as follows: (1) whether the 9th Circuit erred in breaking with its own prior precedent and the findings of other circuits and the Copyright Office in holding that § 411(b) 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; and (2) whether the 9th Circuit misapplied the publication standard by both applying Copyright Office requirements that were not in place at the time of registration and analyzing publication as of the date of registration as opposed to the later registration application date, and, if so, whether the evidence supported referral to the Copyright Office.[4]

Unicolors, Inc. v. Hennes, 2018 U.S. Dist. LEXIS 230412, 2018 WL 6016989 (C.D. Cal., Sept. 25, 2018).

Circular 34 Multiple Works, United States Copyright Office ( (last accessed Jun. 17, 2021 at 12:07 PM) (emphasis added).

Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 959 F.3d 1194 (9th Cir. 2020).

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Kelly Malloy

Ms. Malloy earned her bachelor’s degree in Industrial and Systems Engineering at the University of Florida, and is currently a J.D. Candidate at the University of Miami School of Law concentrating on intellectual property. At Miami Law, Ms. Malloy serves as President of the Student Bar Association and is on the University of Miami Law Review. Ms. Malloy also served as President of the Intellectual Property Law Society, President of the Inter-Club Council, Executive Board Secretary of the Student Bar Association, and 1L Senator during her time at Miami Law. As a result of her dedication to her coursework, Ms. Malloy is in the top 10% of her class, received the Dean’s Merit Scholarship, and was awarded the Dean’s Certificate of Achievement in her Patent Law course. Ms. Malloy is a law clerk at the firm and assists attorneys by drafting patent applications, performing legal research, and preparing for litigation.