A Copyright Registration Invalidation Conversation: Unicolors v. H&M Hennes

When: December 15, 2021 at 12:00pm - 1:00pm EST - This event has passed

A Copyright Registration Invalidation Conversation: Discussing the Supreme Court Case of Unicolors v. H&M Hennes and the Operation of 17 U.S.C. Section 411(B)



Under Sections 411 and 412 of the Copyright Act, a copyright registration is required for a plaintiff to sue and to recover particular remedies. Under Section 411(b), a certification of registration meets this registration requirement “regardless of whether the certificate contains any inaccurate information” unless the information was included with the application with knowledge that it was inaccurate and this inaccuracy, if known, would have cause the Register of Copyrights to refuse registration.  Under Section 411(b)(2), in any case where such inaccuracy is alleged, “the court shall request the Register of Copyrights to advise the court whether the inaccurate information, if known, would have caused the Register of Copyrights to refuse registration.” In Unicolors v. H&M Hennes, the U.S. Supreme Court will decide whether the Ninth Circuit correctly found that a federal district court assessing the validity of a copyright registration with alleged inaccuracies – but there being no indication that those inaccuracies were asserted with fraudulent intent – must refer that registration to the Register of Copyrights for reconsideration under Section 411(b).  The Court may also decide the larger question of whether a copyright registration can be invalidated if the applicant simply made a material misstatement, or whether it must be shown that the applicant specifically intended to defraud the Copyright Office.
In Unicolors, the plaintiff is a textile converter that sells fabrics to garment manufactures and employs in-house artists to create original textile designs.  Unicolors filed an application for a single-unit registration for thirty-one designs, claiming all designs were published as a unit in January 2011.  After Unicolors sued H&M for copyright infringement, a jury found that H&M willfully infringed one of the designs.  After trial, H&M challenged the registration, claiming that only some of the thirty-one designs (including the design at issue) were first offered as a single unit in January 2011.  H&M asked the district court to refer the registration to the Copyright Office. The District Court denied the request, stating that there was no showing of an intent to defraud the Copyright Office. The Ninth Circuit reversed, holding that a finding of fraud was not required under Section 411(b) to refer a matter to the Copyright Office.  The U.S. Supreme Court granted cert on the following issues: “Did the Ninth Circuit err in breaking with its own prior precedent and the findings of other circuits and the Copyright Office in holding that 17 U.S.C. § 411(b) required 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?”  The case is fully briefed and arguments were in November.
In our program, a panel of copyright lawyers will discuss the case, issues relating to Section 411 and what took place during oral argument.  Moderating the panel will be Lincoln Bandlow of the Law Offices of Lincoln Bandlow, who has practiced and taught copyright law for over twenty-five years and is a former Co-Chair of the Los Angeles Chapter of the Copyright Society and former President of the Los Angeles Copyright Society. On the panel will be Stephen Doniger of Doniger / Burroughs, who was trial counsel for Unicolors in the H&M matter and is co-counsel for Unicolors in November and Tillman Breckenridge, Partner at Stris & Maher LLP and co-counsel for H&M in the case.



Tillman Breckenridge
Stris & Maher LLP

Tillman Breckenridge is an experienced appellate lawyer whose practice includes a diverse array of appellate litigation matters at all levels. He has represented companies, organizations, individuals, and foreign, state, and local governments before the United States Supreme Court, every federal court of appeals, and several state courts, such as the Supreme Court of Virginia, the California Courts of Appeal, and the Illinois Courts of Appeal. Mr. Breckenridge also has been an adjunct professor of law at William and Mary Law School, where he founded the Appellate & Supreme Court Clinic. His appellate successes have spanned the country, from the Supreme Court of the United States to each of the federal courts of appeals to several state supreme courts. His work has also led to numerous honors. He has been named to Savoy Magazine’s Most Influential Black Lawyers in America, an honorary member of the Order of the Barristers, a Washington, D.C. SuperLawyer, and a member of Virginia’s Legal Elite. He also became the youngest fellow ever—and first under 40—in the American Academy of Appellate Lawyers. In addition to his appellate practice, Mr. Breckenridge speaks on appellate and related topics in front of various audiences. He received his J.D. from the University of Virginia School of Law, where he argued, and won, his first appeal as a third-year student in the United States Court of Appeals for the Fourth Circuit in a case that presented an issue of first impression.


Stephen Doniger
Doniger / Burroughs

Mr. Doniger focuses on intellectual property and other business disputes, most often representing copyright holders and clients in the entertainment, fashion, and arts industries. He has established an impressive litigation and appellate record over the past 25 years, particularly in the handling of copyright and trademark disputes where he has prevailed in every intellectual property lawsuit taken to trial, which have included many of the largest copyright infringement verdicts in the Central District (including Unicolors v. H&M), and has been counsel of record on numerous appeals resulting in published opinions in favor of his clients such as LA Printex v. Aeropostale, UFI v. Lane Bryant, and Malibu Textiles v. H&M. In addition to his work with Doniger / Burroughs, Mr. Doniger serves as counsel for American Photographic Artists, and works with the Coalition of Visual Artists to, inter alia, advance the rights of artists through the promotion of legislative and other avenues. He has repeatedly been selected to the Southern California Super Lawyers List, and is a frequent panelist and lecturer on intellectual property topics.


Lincoln Bandlow (Moderator)
Law Offices of Lincoln Bandlow

Lincoln Bandlow focuses his practice on sophisticated media, First Amendment, intellectual property and other entertainment-related litigation matters. He represents clients in the motion picture, television, publishing, broadcasting, Internet and advertising fields. In addition, Lincoln represents several of the principal underwriters for the media and entertainment industry.


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The Copyright Society is an Accredited Continuing Legal Education Provider in California, New York and Pennsylvania. Instructions for verifying attendance will be emailed to registrants prior to the program.

California:  1.0 participatory credit

New York: 1.0 Areas of Professional Practice / This intermediate program is transitional and appropriate for both newly admitted and experienced attorneys.

Pennsylvania: 1.0 general credit

CLE Credit Details

The Copyright Society is an Accredited Continuing Legal Education Provider in California, New York and Pennsylvania. Instructions for verifying attendance will be emailed to registrants prior to the program. California: 1.0 participatory credit New York: 1.0 Areas of Professional Practice / This intermediate program is transitional and appropriate for both newly admitted and experienced attorneys. Pennsylvania: 1.0 general credit