Unicolors v. H&M: The Cardinal and the Scarlet Tanager in Copyright Law

Above: Photo of an H&M store. ID 23915197 © Radub85 | Dreamstime.com

You’ve probably got an H&M shirt tucked away somewhere in the back of your closet. The Swedish company operates over 3,000 stores and is the second-largest retailer in the world. Recently, H&M was the subject of an infringement suit from Unicolors, a fabric design company. Unicolors claimed that H&M had sold a jacket and skirt with a pattern similar to a Unicolors-copyrighted design. In response, H&M argued that Unicolors could not carry out the infringement suit because its copyright was invalid; Unicolors had mistakenly filed a single application for multiple works released to the public at different times. 

The District Court determined that Unicolors’s copyright was protected from the mistake by the safe harbor provision. A section of the United States Copyright Act, the safe harbor provision ensures that creators can maintain copyrights for inaccurately filed registrations so long as their errors were unknowingly made. On appeal, however, the Ninth Circuit interpreted the safe harbor provision differently from the District Court. It read the provision to protect only factual errors and concluded that because Unicolors made a legal error, the copyright was invalid.

Eventually, the case made its way to the Supreme Court. There, the justices ruled that the safe harbor provision applies to legal as well as factual errors. Writing the majority opinion, Justice Breyer noted, “Nothing in §411(b)(1)(A) suggests that the safe harbor applies differently simply because an applicant made a mistake of law as opposed to a mistake of fact.” Justice Breyer also observed that Congress passed the Copyright Act to “make it easier, not more difficult, for nonlawyers to obtain valid copyright registrations.” Therefore, Congress had presumably intended “knowledge” to have a broad definition, encompassing both legal and factual knowledge.

Justice Breyer used a bird-watching analogy to explain the court’s reasoning. He imagined a man named John mistaking a scarlet tanager for a cardinal. But this mistake could have occurred in multiple ways. Perhaps John did not notice the tanager’s black wings. In that case, John “made a mistake about the brute facts.” Alternatively, if John saw the black wings but, lacking experience as a birdwatcher, did not know the differences between the birds, then he made “a labeling mistake.” Relating this analogy to the H&M v. Unicolors dispute, Justice Breyer wrote: “Unicolors’ mistake is a mistake of labeling. But unlike John (who might consult an ornithologist about the birds), Unicolors must look to judges and lawyers as experts regarding the proper scope of the label…The labeling problem here is one of law. Does that difference matter here?…We think it does not.”

Above: Cardinal. ID 12066487 © 400ex127 | Dreamstime.com and Below: Scarlet Tanager. ID 279051293 © Suebmtl | Dreamstime.com

In other words, the majority believes it is unimportant whether Unicolors made a mistake of fact or labeling so long as that mistake occurred unknowingly. The safe harbor provision protects copyright owners from both types of errors.

The Supreme Court’s ruling should come as a relief to artists. The decision offers room for errors as long as creators made good-faith efforts when registering their copyrights. It will help creators who cannot afford attorneys to protect their work even if legal mistakes exist in their copyright applications. Of course, the ruling might lead copyright owners to feign ignorance for mistakes they knowingly made in their applications, but, as Sabren Wahden notes, “courts are well-versed in evaluating truthfulness and parsing evidence.” Hopefully, few copyright owners will take advantage of the decision, and more will, instead, receive protection for copyrighted work registered with legal errors.