The Supreme Court of the United States (SCOTUS) released orders on June 1 emanating from its May 27 conference, granting one new case for argument during the upcoming 2021-2022 term.
Unicolors, Inc. v. H&M Hennes & Mauritz, LP originated from the U.S. Court of Appeals for the 9th Circuit and concerns copyright infringement claims involving fabric designs and copyright registration validity.
In 2011, fabric design corporation Unicolors, Inc. (“Unicolors”) applied for and received a copyright registration for a group of designs in a “single-unit filing” from the U.S. Copyright Office. Nine of the designs were “confined” designs, meaning that they were created for specific customers and released to the public after the customer was allowed explicit use of the design(s).
In 2015, clothing retailer and designer H&M started selling a jacket and skirt using the design named “Xue Xu”. Upon discovering the products, Unicolors filed a copyright infringement action against H&M in federal district court, alleging that H&M’s design was similar to its own. A jury found H&M liable for willful infringement. H&M appealed, claiming that Unicolors’ copyright registration application included false information since it said that all of the designs were first published on January 15, 2011, when nine had been confined designs.
On appeal, the 9th Circuit concluded that Unicolors’ registration contained known inaccuracies, reversed the district court’s judgment, and remanded the case for further proceedings. The district court’s remand instructions were to inquire with the Register of Copyrights about the copyright registration, whether the inaccuracies would have caused it to refuse registration, and enter judgment for H&M if the registration would have been refused.
When SCOTUS accepted the case, it limited review to the first question presented to the court: Whether the 9th Circuit erred in holding that 17 U.S.C. §411 required referral to the Copyright Office where there is no indication of fraud or material error related to the work at issue in the copyright registration?
To date, the court has agreed to hear 18 cases during the October 2021 term. One case was dismissed after it was granted.
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