Published in Landslide, Volume 15, Number 1, 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the
American Bar Association.
55
Copyrights
An Unknown Inaccuracy of Fact or the Law in
a Copyright Registration Does Not Render a
Registration Invalid
33 Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 142 S. Ct. 941,
2022 U.S.P.Q.2d 196 (2022). Unicolors sued H&M for alleged
infringement of certain fabric designs. A jury found in favor of
Unicolors. H&M moved for judgment as a matter of law on the
grounds that Unicolors’ copyright registration was invalid because
Unicolors knowingly included inaccuracies in its copyright applica
-
tion; namely, it led a single application for 31 separate works that
did not meet the requirements for a single unit of publication appli-
cation. The district court held that because Unicolors did not know
when it led its application that it did not meet the single unit of
publication requirements, its registration was not invalid under the
safe harbor provision set forth in 17 U.S.C. § 411(b)(1)(A). H&M
appealed, and the circuit court reversed the decision, nding that
it did not matter whether Unicolors had knowledge of the error.
The question before the U.S. Supreme Court was the scope of
the phrase “with knowledge that it was inaccurate” in § 411(b)
(1)(A). The Court concluded that a lack of knowledge of fact
or the law can excuse an inaccuracy in a copyright registration.
Section 411(b)(1) states that registration is valid “regardless of
whether the [registration] certicate contains any inaccurate infor-
mation, unless . . . the inaccurate information was included on
the application for copyright registration with knowledge that it
was inaccurate.” Nothing in the language of the statute indicates
that the conclusion should be different if it is a mistake of fact or
a mistake of law. Other provisions of the Copyright Act as well
as legislative history indicate that the term “knowledge” relates
to both facts and the law. Unconvinced by H&M’s arguments to
the contrary, the Court found that the safe harbor in 17 U.S.C.
§ 411(b)(1)(A) includes inaccuracies of both fact and the law, and
vacated the circuit court’s decision and remanded the case.
“Joyful Noise” Ostinato Not Entitled to Protection,
and “Dark Horse” Is Not Infringing
Gray v. Hudson, 28 F.4th 87, 2022 U.S.P.Q.2d 236 (9th Cir. 2022).
Christian hip-hop artists Marcus Gray, Emanuel Lambert, and
Chike Ojukwu led an action for copyright infringement against
Katheryn Hudson (a.k.a. Katy Perry), Capitol Records LLC, and
several others. The plaintiffs alleged that an ostinato in Perry’s
song “Dark Horse” was copied from an ostinato in the plaintiffs’
song “Joyful Noise.” A jury found Perry and the other defendants
liable for copyright infringement and awarded $2.8 million in
damages to the plaintiffs. The district court vacated the award
on the basis that the evidence at trial was legally insufcient to
show that the ostinato in “Joyful Noise” was entitled to copyright
protection. The plaintiffs appealed to the Ninth Circuit.
The Ninth Circuit conrmed the district court’s decision. Copy-
right protects original works of expression. The Ninth Circuit
agreed with the district court that the plaintiffs failed to establish
that Perry copied any original and protectable elements of “Joyful
Noise.” The court went on to conclude that no single point of simi-
larity exists between the protectable aspects of “Joyful Noise” and
“Dark Horse.” Further, the court determined that the ostinato in
“Joyful Noise” does not contain sufcient originality to sustain
a copyright nding that the ostinato is a result of mere common-
place, unoriginal musical principles. The court stated that the fact
that “Joyful Noise” and “Dark Horse” both make use of sequences
of eight notes played in an even rhythm is a similarly trite musical
choice outside the protection of copyright law. The Ninth Circuit
also considered whether the “Joyful Noise” ostinato is protectable
as a combination of unprotectable elements. The court determined
that even the combination lacks the necessary quantum of creativ-
ity for protection. Thus, the Ninth Circuit afrmed the district
court’s decision vacating the jury award and granting judgment
in favor of Perry and the other defendants.
John C. Gatz is a member of the firm Nixon Peabody LLP in
Chicago, Illinois. Column contributors include the following
writers: Copyrights: Jenni Psihoules, Nixon Peabody LLP; and
Mark R. Anderson, Actuate Law LLC. Patents: Cynthia K. Barnett,
Johnson & Johnson; R. Trevor Carter and Andrew M. McCoy,
Faegre Drinker Biddle & Reath LLP; Robert W. (Bill) Mason,
Southwest Research Institute; and Angelo Christopher, Nixon
Peabody LLP. Trade Secrets: R. Mark Halligan, FisherBroyles
LLP. Trademarks: Elizabeth W. Baio, Nixon Peabody LLP; and
Amy L. Sierocki, Blumenfield & Shere LLP.
By John C. Gatz
DECISIONS IN BRIEF
Patents
19 U.S.C. § 1337/Obviousness
Broadcom Corp. v. International Trade Commission, 28 F.4th 240,
2022 U.S.P.Q.2d 228 (Fed. Cir. 2022). The Federal Circuit afrmed
three consolidated appeals. In the rst, an ITC case, the Federal
Circuit afrmed the ITC’s holding that Broadcom failed to identify
an actual article of commerce that practices the disputed claim,
as required to establish a § 1337 claim. In the second, Broadcom
asserted that the U.S. Patent and Trademark Ofce (USPTO) erred
by truncating the obviousness analysis solely because it found a
difference between the claim and the prior art. The Federal Circuit
disagreed and found that the prior art performed a different func-
tion than the asserted patent and provided no motivation to a
skilled artisan to combine the prior art. In the nal appeal, the
Federal Circuit rejected Broadcom’s arguments that the USPTO
erred when rendering the asserted patent obvious.
Anticipation
Hunting Titan, Inc. v. DynaEnergetics Europe GmbH, 28 F.4th
1371, 2022 U.S.P.Q.2d 289 (Fed. Cir. 2022). The Federal Circuit
