Suppose that you want to register your copyright by preparing and filing a copyright application with the U.S. Copyright Office. What if you were unaware that you made some mistakes in the copyright application and the copyright application issued into a copyright registration? You subsequently find that someone is infringing your copyright registration and you file a lawsuit against them for copyright infringement. During the lawsuit, the accused infringer finds the mistakes in the copyright application and argues that the copyright registration is invalid. Is your copyright registration invalid? The answer is NO if the mistakes were made without knowledge!
To bring suit for copyright infringement under U.S. law, 17 U.S.C. § 411(a) states in part:
(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights…
In addition, 17 U.S.C. § 411(b) states in part:
(1) A certificate of registration satisfies the requirements of this section and section 412, 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.
Thus, if inaccurate information is included in the copyright application, it is possible that the Register of Copyrights, if known of the inaccurate information, would have refused registration, making the copyright registration invalid. What types of information could be inaccurate on a copyright application? Such information may be the type of copyright registration form used or the name of the author, whether the work is published, the publication date if published, etc. Is this information one of fact or law? For example, if the wrong copyright registration form is used, this may be a mistake of law. If the publication date is inaccurate, for example, this may be a mistake of fact. Will the copyright registration be invalid based on a mistake of law or a mistake of fact?
In the recent case of Unicolors, Inc. v. H&H Hennes & Mauritz, L.P., ___ U.S. ___ (2022), Unicolors, Inc. (Unicolors) had filed a single copyright application seeking registration for 31 separate works for various fabric designs 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. Unicolors sued H&H Hennes & Mauritz, L.P. (H&M) for copyright infringement based on its copyright registration. The District Court determined that because Unicolors did not know when it filed its application that it had failed to satisfy the “single unit of publication” requirement, the copyright registration remained valid by operation of the safe harbor provision under 17 U.S.C. § 411(b)(1)(A). H&M appealed and the Ninth Circuit determined that the safe harbor provision excuses only good-faith mistakes of fact, not law. The U.S. Supreme Court granted a petition for certiorari and decided that Section 411(b) does not distinguish between a mistake of law and a mistake of fact. The U.S. Supreme Court found that the Copyright Act provides that a certificate of registration is valid, even though it contains inaccurate information, as long as the copyright holder lacked “knowledge that it was inaccurate” under Section 411(b)(1)(A). Thus, the U.S. Supreme Court held that nothing in Section 411(b)(1)(A) suggests that the safe harbor applies differently simply because an applicant made a mistake of law as opposed to an error of fact and that lack of either factual or legal knowledge can excuse an inaccuracy in a copyright registration under Section 411(b)(1)(A)’s safe harbor.
Because of Unicolors, a copyright registration may not be invalidated if inaccurate information was included on the copyright application without knowledge by the applicant. The safe harbor provision of Section 411(b) does not depend on whether the inaccurate information is a mistake of law or a mistake of fact. Thus, a lack of knowledge either factual or legal can excuse an inaccuracy in a copyright registration under Section 411(b)(1)(A)’s safe harbor provision.
Since copyright registrations can no longer be invalidated based on inaccurate information without your knowledge, you should still file a copyright application to register your copyright with what you believe is accurate information. If you provided inaccurate information without your knowledge such as the author’s name, whether the work is published, the publication date if published, etc., you should be able to have the copyright application examined and obtain a registration. However, it is still possible that once the copyright application registers into a copyright registration, an accused infringer may attempt to invalidate the copyright registration based on inaccurate information. Unless the inaccurate information was made with your knowledge, the accused infringer will not be able to invalidate the copyright registration based on the inaccurate information you provided. Ultimately, you should be able to uphold and enforce your copyright registration.