The Ninth Circuit threw out a judgment of almost $800,000 in a copyright infringement case because of how the plaintiff filled out the copyright registration paperwork – and because the district court didn’t seek guidance about it from the Copyright Office.

Unicolors v. H&M involved a copyright dispute between Unicolors, a company that creates designs for use on textiles and garments, and H&M, which sells clothing.

Unicolors claimed that a design printed on H&M garments in 2015 infringed the copyright for a Unicolors design from 2011.

The jury found that the two designs were too similar, and Unicolors was awarded $266,209, plus $514,565.47 in attorney’s fees and costs.

On appeal, H&M argued that Unicolors’ copyright registration was invalid in that it didn’t comply with the “unit of publication” rule.

As the US Copyright Office website states,

H&M had introduced testimony at trial that the thirty-one works included in Unicolors’ copyright registration weren’t all published at the same time. However, the district court didn’t find the registration invalid.

On appeal, the Ninth Circuit found another problem.

Section 411(b) of the Copyright Act provides that a registration certificate that contains inaccurate information or errors can still be the basis for a lawsuit unless: “the inaccurate information was included on the application for copyright registration with the knowledge that it was inaccurate” and “the inaccuracy of the information if known, would have caused the Register of Copyrights to refuse registration.”

The statute includes a mechanism by which a court can seek advice from the Register of Copyrights about whether the inaccuracy would have caused the registration to be refused.

Thus, the court remanded the case in order for the district court to complete this requirement before deciding whether the registration was valid.

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