Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
Issues Addressed In Supreme Court 'Unicolors' Argument
In the September issue, we reported on the U.S. Supreme Court's grant of certiorari in Unicolors v. H&M Hennes & Mauritz, L.P., 959 F.3d 1194 (9th Cir. 2020) (Unicolors) for the October 2021 term, docket no. 20-915. Briefing was completed in mid-October (briefs can be found at www.scotusblog.com) and oral argument was held November 8 (recording available at www.c-span.org). This article describes some of the major issues the court addressed in that argument, and will identify some questions that are likely to remain open no matter the outcome.
The issue in Unicolors is a pure question of statutory construction. 17 U.S.C. §411(b) states:
- A certificate of registration satisfies the requirements of this section and section 412, regardless of whether the certificate contains any inaccurate information, unless—
- the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and
- the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration.
- In any case in which inaccurate information described under paragraph (1) 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.
On its face, the language in §411(b) commands that where information is included on an application for registration "with knowledge that it was inaccurate" the court "shall" seek the advice of the Copyright Office in every case in which such inaccurate information "is alleged." But prior to the Ninth Circuit ruling now on appeal in Unicolors, a number of courts had grafted a degree of discretion onto the statutory language, leaving it to the district court to determine, inter alia, whether there were sufficient indicia of fraudulent intent on the applicant's part to warrant soliciting the view of the Copyright Office. This interpretation is arguably consistent with the origin of the statutory language, which was added to the Act in 2008 as part of the so-called PRO IP Act; the Copyright Office annual report for that year states that this legislation "amended section 411 of the copyright law to codify the doctrine of fraud on the Copyright Office." The Eleventh Circuit, inter alia, agreed in Roberts v. Gordy, 877 F.3d 1024 (2017), requiring a showing of "intentional or purposeful concealment of relevant information" before consulting the Copyright Office under §411(b). The Ninth Circuit rejected this intent-based approach.
This premium content is locked for Entertainment Law & Finance subscribers only
ENJOY UNLIMITED ACCESS TO THE SINGLE SOURCE OF OBJECTIVE LEGAL ANALYSIS, PRACTICAL INSIGHTS, AND NEWS IN ENTERTAINMENT LAW.
- Stay current on the latest information, rulings, regulations, and trends
- Includes practical, must-have information on copyrights, royalties, AI, and more
- Tap into expert guidance from top entertainment lawyers and experts
Already a have an account? Sign In Now Log In Now
For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473
Beach Boys Songs Written Decades Ago Triggered Current Quarrel With Lawyers
There's current litigation in the ongoing Beach Boys litigation saga. A lawsuit filed in 2019 against Nevada residents Mike Love and his wife Jacquelyne in the U.S. District Court for the District of Nevada that alleges inaccurate payment by the Loves under the retainer agreement and seeks $84.5 million in damages.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Transfer Tax Implications on Real Property Leases
The real property transfer tax does not apply to all leases, and understanding the tax rules of the applicable jurisdiction can allow parties to plan ahead to avoid unnecessary tax liability.