top of page

Simple Mistake on Copyright Registration Could Cost $1 Million

Make sure your copyright applications are accurate and you use the correct forms and information

​

By Leon D. Bass

​

After fabric designer Unicolors Inc. (Unicolors) won a nearly $1 million verdict against H&M in a 2016 copyright infringement case, H&M appealed, arguing that Unicolor's copyright application contained mistakes rendering it invalid. The Ninth Circuit Court of Appeals overturned the verdict, stating that Unicolors was aware of the inaccuracies in its copyright application, and therefore the copyright application should be rendered void.

​

If the copyright application is declared void, the entire verdict would be thrown out because a copyright registration is a prerequisite to filing a lawsuit and to receive certain types of copyright damages and attorneys’ fees. Unicolors appealed, and the U.S. Supreme Court granted certiorari, agreeing to hear the case.

​

Unicolors is arguing that a 2008 law known as the PRO-IP Act prevents a copyright registration from becoming void for what it describes as merely "immaterial registration errors." Rather, Unicolors claims that the PRO-IP Act requires evidence of fraud on the copyright office to allow an application to be considered to be void. Fraud, however, is a high legal standard, requiring heightened pleading requirements and evidence showing that someone intentionally lied.

​

Regardless of this ruling, the case demonstrates the need for particular mindfulness in filing copyright applications. Because one cannot file a lawsuit without a copyright registration, a void registration will prevent one from enforcing their rights or obtaining damages for infringement, including the right to request attorney's fees or statutory damages of up to $150,000 per copyright. Without a valid registration, a copyright owner's practicable ability to sue is materially diminished - if not wholly eliminated.

​

Copyright application regulations can be complicated and are often changing, making it easy for an applicant to make a mistake that could void a registration. Even if a mistake does not rise to the level of causing a registration to become void, a mistake on an application creates an opportunity for opposing counsel to argue for a complete dismissal. The result - as it was with Unicolors - could be years of litigation in what may otherwise be a straightforward infringement case.

​

Before filing a new copyright application, consider the following:

​

  1. Use of Counsel: Consider retaining experienced IP counsel to assist and advise you.

  2. Type of Work: Determine the type of work being registered, noting particular nuances; e.g. music has two different copyrights - sound recordings and compositions.

  3. Who is the Author and Owner? Determine the author, noting that the author is different than the claimant (the owner), and further noting that work for hire laws can change the author in certain employment situations. One should also consider that many copyrights have joint authors and joint claimants.

  4. Publication: Determine if the work has been published. Published works have different rules and application requirements than unpublished works.

  5. Publication Dates: Be particularly mindful to make sure creation dates and/or publication dates are accurate for each work.

  6. Multiple Works: If you are attempting to register a group of works in one application, carefully review the rules as they have recently changed. Note that there are strict requirements regarding what you can and can't do and what application forms you must use for different scenarios. For example, you will need to carefully consider whether the work is published or unpublished, whether the type of work can be registered in a group, the year of creation, and whether the author is the same for all claimed rights.

  7. Expediting your Application: If litigation is imminent or you are looking to enforce rights quickly, consider filing an expedited application, known as a request for "special handling." The cost is currently $800.

 

If you have questions about this or other copyright issues, please contact us.

​

Surface Audio
Celebrating
25 Years
    In Practice        1998--2023

Karen Kent

Legal Assistant to Leon Bass 

E:  kkent@taftlaw.com

P:  614.334.7186

​

Leon D. Bass 

E:  Lbass@taftlaw.com

P:  614-431-2277 (call/text)

(New clients by appointment only)

​

​

​

      LinkedIn             Bio                vCard

​

Office Locations:

​

Taft's Columbus Office is located in the Huntington Center on Capitol Square in downtown Columbus:

​

41 S. State St.  Ste. 1800

Columbus, OH 43215

​

​

​

​

​

 

 

 

 

For other office locations, see here.

​

*Leon Bass is licensed as an attorney to practice law in Ohio and the U.S. Virgin Islands

eliete.jpg

2023 Elite Lawyer

IP Excellence Awards 

Best for Trademark Law 

Leading Entertainment Lawyer 

​

Legal Elite

Best IP / Entertainment

Law Firm of the Year

Ohio and U.S. Virgin Islands

Columbus Business First

People to Know in Law

Super Lawyers

Top Attorney - Columbus CEO

Rated Excellent - Top Attorney

AVVO

The Best Lawyers in America™

2022 & 2023

LOD.png

2022 & 2023 Lawyers of Distinction

Trademark, copyright, entertainment law, attorney, lawyer, Columbus, Ohio, copyright claims board case act copyright defend copyright cases defend trademark cases case act trademarks, trademark attorney, copyright attorney,  file trademark, file a trademark, register trademark register a trademark, trademark law,  copyright law,  trademark lawyer,  copyright lawyer,  register a copyright, file a copyright, file a trademark, protect copyright, protect trademark enforce copyright enforce trademark federal trademark, trademark lawsuit, copyright lawsuit, trademark dispute, copyright litigation, trademark litigation, entertainment litigation, file a patent, register a patent, protect a trademark, trademark protection, protect a copyright, copyright protection, intellectual property attorney, intellectual property law, intellectual property lawyer, trade secret attorney, trade secret lawyer, trade secret law,  trade secrets,  copyrights,  entertainment attorney, entertainment law, entertainment lawyer, franchise law, franchise attorney, franchise lawyer, sweepstakes law, sweepstakes attorney, sweepstakes lawyer, business law, business lawyer, business attorney, media law, media lawyer, media law attorney, contract law, contract attorney, contract lawyer, contracts, contracts law, ethics law, ethics lawyer, ethics attorney, professional ethics law, start up, start-ups, start up law, start up lawyer, start up attorney, start-up business, new business lawyer, start-up company lawyer, start-up company attorney, new business formation, start a business, start new business lawyer, register a business, new business filing, virgin islands lawyer, virgin islands attorney, litigation attorney, litigation lawyer, copyright law firm, trademark law firm, entertainment law firm, Ohio trademark law firm, Ohio copyright law firm; Ohio trademark lawyer, Ohio copyright lawyer, Ohio copyright attorney, Ohio trademark attorney, Ohio entertainment attorney, Columbus trademark attorney, Columbus trademark Lawyer, Columbus copyright lawyer, Columbus copyright attorney, protect my copyright, protect my trademark, protect my intellectual property, , Columbus entertainment law firm, Columbus entertainment attorney, Ohio new business formation law firm lawyer attorney, Columbus new business formation law firm lawyer attorney, experienced trademark lawyer, experienced copyright lawyer, experienced entertainment lawyer, experienced trademark attorney, experienced copyright attorney, experienced entertainment attorney. Convention lawyer, convention law, trade show law, trade show lawyer, convention law firm, trade show attorney, Convention attorney trade show agreements, convention agreements, vendor agreements, sponsor agreements, registration agreements, crises management lawyer attorney, celebrity agreements, speaker agreements, presenter agreements; Travel agent agreements, travel agent law, travel agent  turn-key agreement, travel agent booking agreements, Entertainment agreement, bands agreement, celebrity appearance agreement trade show lawyer trade show law convention lawyer conference law convention law 

bottom of page