Chapter 6: Formalities

Historically, prior to the 1976 Act, an author was required to comply with certain “formalities” in order to receive federal copyright protection for a work, i.e., either publication with adequate notice or registration with the Copyright Office, and deposit of copies with the Library of Congress. The term “formalities” refers to technical requirements for copyright protection that go beyond the fundamental criteria that the work be original and fixed in a tangible medium of expression.

Under the 1976 Act, the copyright vests at the moment of fixation, regardless of whether or not the work has been published or registered. Failure to submit a deposit copy can subject the copyright owner to a fine, but will not affect the copyright status of the work. In 1989, the United States eliminated the notice requirement completely when it joined the Berne Convention, as required by this major international copyright treaty. See Berne Convention Implementation Act of 1988. Thus, as of March 1, 1989, published copies of copyrighted works no longer require copyright notices to maintain federal copyright protection. The elimination of formalities brought U.S. law into closer harmony with other jurisdictions, such as the European Union.

Although under current law compliance with formalities is no longer required for copyright protection, they remain significant for at least two reasons: (1) the changes to the law were not retroactive, and still apply to older works created at a time when the formality was required; and (2) although technically not required for copyright, compliance with the formalities will provide the copyright claimant with a number of significant benefits.

A. Publication with Notice

Under the 1909 Act, unpublished works were not eligible for federal copyright protection unless the author had taken the affirmative step of copyrighting it through registration with the Copyright Office, as discussed below. They could be eligible for some forms of state common law protection, such as a “right of first publication,” but the contours of this common law protection were generally uncertain, and significantly less robust than federal copyright.

Publication of a potentially copyrightable work had significant consequences with respect to copyright. Under the 1909 Act, publication with adequate notice resulted in federal copyright protection for the work, and began the 28 year copyright term mentioned earlier. In order for the work to comply with the adequate notice requirement, the copyright owner was required to place a copyright notice on all copies of the work that were distributed to the public, usually consisting of the copyright symbol © and/or the word “Copyright” along with the year of publication and the name of the copyright owner. On the other hand, publication without adequate notice generally placed the work in the public domain, forever ineligible for federal copyright protection, and no longer subject to any state common-law protection.¹

The term “publication” has its own meaning in the context of copyright law that can be quite different from the meaning normally associated with the term in other contexts, as illustrated by the following case involving Martin Luther King Jr.’s iconic “I Have a Dream” speech.

Some things to consider when reading Est. of Martin Luther King, Jr.:

1. Why is CBS arguing that Dr. King’s delivery of his “I Have a Dream” speech during the March on Washington in 1963 constituted a “general publication” of the speech?
2. Why does the court conclude that the speech had not been published, even though there was a huge crowd in attendance, it was broadcast nationally, and copies of the speech were widely distributed to the news media prior to Dr. King’s delivery of the speech?
3. The difference between a “general publication” and a “limited publication,” and why courts distinguish between the two.
4. The significance of the distinction between the performance of a work and publication.
5. The court’s comparison of the facts in the instant case with earlier decisions like Letter Edged in Black and American Tobacco.
6. The possibility that controversy could presumably have been avoided if Dr. King’s organization, the SCLC, had included copyright notice of the copies of the speech it distributed, e.g., “© 1963, Martin Luther King, Jr.”.

Est. of Martin Luther King, Jr., Inc. v. CBS, Inc.

194 F.3d 1211 (11th Cir. 1999)

ANDERSON, Chief Judge:

The Estate of Martin Luther King, Jr., Inc. brought this copyright infringement action against CBS, Inc. after CBS produced a video documentary that used, without authorization, portions of civil rights leader Dr. Martin Luther King’s famous “I Have a Dream” speech at the March on Washington on August 28, 1963. The district court granted summary judgment to CBS on the ground that Dr. King had engaged in a general publication of the speech, placing it into the public domain. We now reverse.

I. FACTS

The facts underlying this case form part of our national heritage and are well-known to many Americans. On the afternoon of August 28, 1963, the Southern Christian Leadership Conference (“SCLC”) held the March on Washington (“March”) to promote the growing civil rights movement. The events of the day were seen and heard by some 200,000 people gathered at the March, and were broadcast live via radio and television to a nationwide audience of millions of viewers. The highlight of the March was a rousing speech that Dr. Martin Luther King, Jr., the SCLC’s founder and president, gave in front of the Lincoln Memorial (“Speech”). The Speech contained the famous utterance, “I have a dream …,” which became symbolic of the civil rights movement. The SCLC had sought out wide press coverage of the March and the Speech, and these efforts were successful; the Speech was reported in daily newspapers across the country, was broadcast live on radio and television, and was extensively covered on television and radio subsequent to the live broadcast.

On September 30, 1963, approximately one month after the delivery of the Speech, Dr. King took steps to secure federal copyright protection for the Speech under the Copyright Act of 1909, and a certificate of registration of his claim to copyright was issued by the Copyright Office on October 2, 1963. Almost immediately thereafter, Dr. King filed suit in the Southern District of New York to enjoin the unauthorized sale of recordings of the Speech and won a preliminary injunction on December 13, 1963. See King v. Mister Maestro, Inc., 224 F.Supp. 101 (S.D.N.Y.1963).

For the next twenty years, Dr. King and the Estate enjoyed copyright protection in the Speech and licensed it for a variety of uses, and renewed the copyright when necessary. In 1994, CBS entered into a contract with the Arts & Entertainment Network to produce a historical documentary series entitled “The 20th Century with Mike Wallace.” One segment was devoted to “Martin Luther King, Jr. and The March on Washington.” That episode contained material filmed by CBS during the March and extensive footage of the Speech (amounting to about 60% of its total content). CBS, however, did not seek the Estate’s permission to use the Speech in this manner and refused to pay royalties to the Estate. The instant litigation ensued.

On summary judgment, the district court framed the issue as “whether the public delivery of Dr. King’s speech … constituted a general publication of the speech so as to place it in the public domain.” After discussing the relevant case law, the district court held that Dr. King’s “performance coupled with such wide and unlimited reproduction and dissemination as occurred concomitant to Dr. King’s speech during the March on Washington can be seen only as a general publication which thrust the speech into the public domain.”² Thus, the district court granted CBS’s motion for summary judgment. The Estate now appeals to this Court.

II. DISCUSSION

We review the district court’s grant of summary judgment de novo, with all facts and reasonable inferences therefrom reviewed in the light most favorable to the nonmoving party.

Because of the dates of the critical events, the determinative issues in this case are properly analyzed under the Copyright Act of 1909 (“1909 Act”), rather than the Copyright Act of 1976 (“1976 Act”) that is currently in effect. The question is whether Dr. King’s attempt to obtain statutory copyright protection on September 30, 1963 was effective, or whether it was a nullity because the Speech had already been forfeited to the public domain via a general publication.

Under the regime created by the 1909 Act, an author received state common law protection automatically at the time of creation of a work. This state common law protection persisted until the moment of a general publication.³ When a general publication occurred, the author either forfeited his work to the public domain, or, if he had therebefore complied with federal statutory requirements [i.e., by providing notice], converted his common law copyright into a federal statutory copyright.

In order to soften the hardship of the rule that publication destroys common law rights, courts developed a distinction between a “general publication” and a “limited publication.” Only a general publication divested a common law copyright. A general publication occurred when a work was made available to members of the public at large without regard to their identity or what they intended to do with the work. Conversely, a non-divesting limited publication was one that communicated the contents of a work to a select group and for a limited purpose, and without the right of diffusion, reproduction, distribution or sale. The issue before us is whether Dr. King’s delivery of the Speech was a general publication.

[The court discusses some specific caselaw.]

It appears from the case law that a general publication occurs only in two situations. First, a general publication occurs if tangible copies of the work are distributed to the general public in such a manner as allows the public to exercise dominion and control over the work. Second, a general publication may occur if the work is exhibited or displayed in such a manner as to permit unrestricted copying by the general public. However, the case law indicates that restrictions on copying may be implied, and that express limitations in that regard are deemed unnecessary.

The case law indicates that distribution to the news media, as opposed to the general public, for the purpose of enabling the reporting of a contemporary newsworthy event, is only a limited publication. This rule comports with common sense; it does not force an author whose message happens to be newsworthy to choose between obtaining news coverage for his work and preserving his common-law copyright.

With the above principles in mind, in the summary judgment posture of this case and on the current state of this record, we are unable to conclude that CBS has demonstrated beyond any genuine issue of material fact that Dr. King, simply through his oral delivery of the Speech, engaged in a general publication making the Speech available to members of the public at large without regard to their identity or what they intended to do with the work.” A performance, no matter how broad the audience, is not a publication; to hold otherwise would be to upset a long line of precedent. This conclusion is not altered by the fact that the Speech was broadcast live to a broad radio and television audience and was the subject of extensive contemporaneous news coverage. We follow the above cited case law indicating that release to the news media for contemporary coverage of a newsworthy event is only a limited publication.

Our conclusion finds significant support from Burke v. National Broadcasting Co., Inc., 598 F.2d 688 (1st Cir.1979). Burke captured on film a highly unusual and dramatic encounter in which a zebra attacked a lioness who had killed the zebra’s foal. Grzimek, a professor and a host of an educational television program, wrote Burke requesting permission to use the film in his lectures and in the educational television program. Burke responded affirmatively, sending Grzimek the film accompanied by a short reply that contained neither express authorization nor express restriction with respect to other possible uses of the film. Grzimek initially used the film only for the stated purposes, but later transmitted a copy of the film to a commercial company specializing in nature films, which in turn sold a production that included the film to NBC. The issue was whether Burke’s common law copyright was forfeited to the public domain by virtue of the circumstances surrounding his seemingly unconditioned release of the film to Grzimek. In other words, the issue was whether there had been a general publication. The First Circuit held that only a limited publication had occurred, and that Burke’s common law copyright had not been lost. The court defined a general publication as occurring when a work is made available to the public at large without regard to who they are or what they propose to do with it, noted that courts have hesitated to find a general publication which divests a common law copyright, and noted the settled law that a mere performance or exhibition of a work is not a general publication. Recognizing that a general publication can be found if the public were free to copy the work on exhibit, the First Circuit held that a prohibition on copying can be tacitly understood. Applying the foregoing principles, the court sustained Burke’s common law copyright as against NBC. The Burke court held that Burke’s authorization of Grzimek’s broadcast of the film on noncommercial television did not result in a general publication. The court recognized that Burke did not explicitly state that Grzimek could not distribute copies of the film to others, or use it for other purposes, but the court said “such limitations are reasonably to be implied.”

We believe that the authority granted to the press in the instant case—extensive news coverage including live broadcasts—is analogous to the authority granted in Burke. In Burke, authority was granted to the host of an educational television program to broadcast on television; in the instant case, authority was granted to the press for extensive news coverage, also including broadcasts on television. In both cases, the authority was granted to a limited group for a limited purpose. In both cases, the restrictions on copying and reproducing were implied. The soundness of our analogy to Burke is also supported by the foregoing case law indicating generally that distribution to the news media for the purpose of news coverage is only a limited publication.

The district court held that “the circumstances in this case take the work in question outside the parameters of the ‘performance is not a publication’ doctrine.” These circumstances included “the overwhelmingly public nature of the speech and the fervent intentions of the March organizers to draw press attention.” Certainly, the Speech was one of a kind—a unique event in history. However, the features that make the Speech unique—e.g., the huge audience and the Speech’s significance in terms of newsworthiness and history—are features that, according to the case law, are not significant in the general versus limited publication analysis.

The district court cited Letter Edged in Black Press, Inc. v. Public Bldg. Comm’n of Chicago, 320 F.Supp. 1303 (N.D.Ill.1970), CBS’s best case, in support of its reasoning, and that case warrants some exploration. In Letter Edged in Black, the question was whether the city had dedicated a Picasso sculpture (located in front of the Chicago Civic Center) to the public domain by general publication. The city had done the following: it carried out a massive campaign to publicize the monumental sculpture; it placed a maquette (portable model of the sculpture) on exhibition at a local museum; it gave photographs to the public upon request; it arranged for pictures of the sculpture to appear in several magazines of large national circulation; it sold a postcard featuring the sculpture; and it distributed numerous publications and reports containing photographs of the sculpture. After stating the controlling legal principles with regard to general and limited publication, the Letter Edged in Black court stated its view that the cumulation of these various acts by the city equated to general publication. The court then distinguished American Tobacco, 207 U.S. 284, the primary authority that the city cited to support its theory of mere limited publication. In American Tobacco, the Supreme Court held that the display of a painting in a gallery did not constitute general publication putting the painting into the public domain. According to the Letter Edged in Black court, a cornerstone of American Tobacco was the fact that copying of the painting was strictly forbidden and the gallery strictly enforced the anti-copying rules. The court held that the facts in Letter Edged in Black were distinguishable:

In the case at bar there were no restrictions on copying and no guards preventing copying. Rather every citizen was free to copy the maquette for his own pleasure and camera permits were available to members of the public. At its first public display the press was freely allowed to photograph the maquette and publish these photographs in major newspapers and magazines. Further, officials at this first public showing of the maquette made uncopyrighted pictures of the maquette available on request. Were this activity strictly classified as limited publication, there would no longer be any meaningful distinction between limited and general publication.

The district court likened the instant case to Letter Edged in Black on the ground that there was a lack of restriction on copying and free allowance of reproduction by the press. However, we do not believe the analogy fits—at least not at this summary judgment stage. Significantly, in Letter Edged in Black there were manifestations of the city’s intent to distribute generally among the public at large that have no parallels in the evidence we can consider in the instant summary judgment posture. The city gave photographs of the sculpture to the public, not merely the press, upon request. The city commercially sold a postcard featuring the sculpture. Copying was apparently widespread at an exhibit of the sculpture, and the city took no action to curtail copying and photographing by the public. At trial, CBS may well produce evidence that brings the instant case on all fours with Letter Edged in Black,⁴ but the present state of the record does not support the analogy; to the contrary, the performance of the Speech in the instant case is more like the exhibition of the painting in the gallery in American Tobacco.

Because there exist genuine issues of material fact as to whether a general publication occurred, we must reverse the district court’s grant of summary judgment for CBS. It would be inappropriate for us to address CBS’s other arguments, e.g., fair use and the First Amendment, because the district court did not address them, and because the relevant facts may not yet be fully developed. Of course, we express no opinion on the eventual merits of this litigation. The judgment of the district court is reversed and remanded for further proceedings not inconsistent with this opinion.

__________

Check Your Understanding – Est. of Martin Luther King, Jr.

Question 1. Under the 1909 Act, what is the difference between a “general publication” and a “limited publication”?

Question 2. True or false: Distribution of a work to the news media, as opposed to the general public, for the purpose of enabling the reporting of a contemporary newsworthy event, is only a limited publication.

Question 3. True or false: The public performance of the speech to a broad audience can constitute a general publication of the text of the speech.

Under the 1976 Act, originality and fixation are all that are required, so neither publication nor registration is required for federal copyright protection. For the most part, state common law copyright has been preempted by federal copyright.

However, as initially enacted, the 1976 Act retained the requirement that published works provide adequate notice to the public. Publication without adequate notice would result in forfeiture of copyright protection for the work, thereby introducing it into the public domain, as was the case under the 1909 Act. The 1976 Act was somewhat more forgiving, in that it allowed copyright owners some opportunity to cure publication that occurred without notice, at least if this publication was not too extensive.

In particular, Section 405(a) of the 1976 Act provides that omission of the prescribed copyright notice from copies or phonorecords publicly distributed by authority of the copyright owner does not invalidate the copyright in a work if—

(1) the notice has been omitted from no more than a relatively small number of copies or phonorecords distributed to the public; or

(2) registration for the work has been made before or is made within five years after the publication without notice, and a reasonable effort is made to add notice to all copies or phonorecords that are distributed to the public in the United States after the omission has been discovered; or

(3) the notice has been omitted in violation of an express requirement in writing that, as a condition of the copyright owner’s authorization of the public distribution of copies or phonorecords, they bear the prescribed notice.

Even where the publication without notice took place outside the United States, it has been held that copyright was forfeited unless one of the § 405(a) exceptions applies. Hasbro Bradley, Inc. v. Sparkle Toys, Inc., 780 F.2d 189 (2d Cir. 1985).

In 1988, Congress enacted the Berne Convention Implementation Act, which eliminated the requirement of notice altogether, with respect to works created after March 1, 1989.

Although notice is no longer a requirement for copyrightability, even if a work has been published, notice still confers significant legal benefits to the copyright owner, and for that reason copyright owners still routinely attach copyright notice to copies of works made available to the public. In particular, adequate notice on copyrighted works precludes potential defendants from claiming that they innocently infringed upon the copyrighted work, thus preventing defendants from using a defense of innocent infringement to mitigate actual or statutory damages.

B. Registration

Copyright owners can register their claims to copyright with the U.S. Copyright Office. Registration has never been a requirement for copyright protection of published works, but the 1909 Act did allow the author of an unpublished work, not reproduced for sale, to gain copyright by registering the work, so long as the author deposited a copy of the work with the Register of Copyrights, along with a claim of copyright. Still, there are substantial benefits to obtaining a registration, and copyright owners continue to register their works with the Copyright Office, a fairly routine process in most cases.

One of the most significant benefits of registration is the ability to enforce the copyright in federal court.⁵ With respect to most works, in order to file a lawsuit in federal court to enforce the copyright, the copyright owner must first register the work (or at least attempt to register the work, and be denied registration by the Copyright Office). 17 U.S.C. § 411. Furthermore, registration of the work within five years of initial publication constitutes prima facie evidence of copyright ownership and validity, which can make it much easier for the plaintiff to establish the first element of a copyright infringement lawsuit, i.e., ownership of a valid copyright. It also enables copyright owners to receive statutory damages and attorney’s fees for infringements occurring after registration, as discussed later in this casebook. In addition, registration creates a publicly accessible record of copyright ownership, providing contact information for those interested in obtaining a license to use the work.

Some things to consider when reading Unicolors:

1. To obtain registration, the author of a work must, inter alia, provide the Copyright Office with certain factual information, some of which incorporates legal conclusions. 17 U.S.C. § 411(b)(1) provides that a certificate of registration is valid even though it contains inaccurate information, as long as the copyright holder lacked “knowledge that it was inaccurate.” The question before the Court is whether this “safe harbor” applies when the lack of knowledge stems from a failure to understand the law rather than a failure to understand the facts. In Unicolors, a divided Court holds that § 411(b) does not distinguish between a mistake of law and a mistake of fact, and thus lack of knowledge of either fact or law can excuse an inaccuracy in a copyright registration.
2. Note the variety of tools of statutory interpretation invoked by Justice Breyer in writing for the majority, including analogy, precedent, dictionaries, other provisions of the Copyright Act, and legislative history.
3. Three dissenting Justices would have dismissed the writ of certiorari as improvidently granted. What was Unicolor’s “legerdemain”?

Unicolors, Inc. v. H&M Hennes & Mauritz, L. P.

595 U.S. 178 (2022)

Justice BREYER delivered the opinion of the Court.

A valid copyright registration provides a copyright holder with important and sometimes necessary legal advantages. It is, for example, a prerequisite for bringing a “civil action for infringement” of the copyrighted work. 17 U.S.C. § 411(a). Additionally, a plaintiff in an infringement action normally cannot obtain an award of statutory damages or attorney’s fees for infringement that occurred prior to registration. § 412.

To obtain registration, the author of a work must submit to the Register of Copyrights a copy of the work and an application. §§ 408, 409. The application must provide information about the work. § 409. Some of this information is purely factual, but some of it incorporates legal conclusions. If the Register determines that the work is copyrightable and meets other statutory requirements, she will issue a certificate of registration. § 410(a). The information on this certificate reflects the information that the copyright holder provided on the application. Ibid.

Naturally, the information provided on the application for registration should be accurate. Nevertheless, the Copyright Act provides a safe harbor. It says that a certificate of registration is valid

“regardless of whether the certificate contains any inaccurate information, unless—

“(A) the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and

“(B) the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration.” § 411(b)(1) (emphasis added).

The important point for our purposes is that a certificate of registration is valid even though it contains inaccurate information, as long as the copyright holder lacked “knowledge that it was inaccurate.” § 411(b)(1)(A).

The question before us concerns the scope of the phrase “with knowledge that it was inaccurate.” The Court of Appeals for the Ninth Circuit believed that a copyright holder cannot benefit from the safe harbor and save its copyright registration from invalidation if its lack of knowledge stems from a failure to understand the law rather than a failure to understand the facts. In our view, however, § 411(b) does not distinguish between a mistake of law and a mistake of fact. Lack of knowledge of either fact or law can excuse an inaccuracy in a copyright registration. We therefore vacate the Court of Appeals’ contrary holding.

I

The petitioner here, Unicolors, owns copyrights in various fabric designs. It sued the respondent, H&M Hennes & Mauritz, L.P. (H&M), for copyright infringement. 959 F.3d 1194, 1195 (CA9 2020). The jury found in Unicolors’ favor, but H&M asked the trial court to grant it judgment as a matter of law. H&M argued, among other things, that Unicolors’ registration certificate was invalid (and that therefore Unicolors could not sue for infringement) because it contained inaccurate information. Specifically, H&M argued that Unicolors’ registration certificate was inaccurate because Unicolors had improperly filed a single application seeking registration for 31 separate works. H&M relied on a Copyright Office regulation, which provides that a single registration can cover multiple works only if those works were “included in the same unit of publication.” C.F.R. § 202.3(b)(4) (2020). H&M argued that the 31 fabric designs covered by Unicolors’ single application (and therefore single registration) had not been published as a single unit of publication because Unicolors had initially made some of the designs available for sale exclusively to certain customers, while other designs were immediately available to the general public. Because the first statutory requirement for invalidating Unicolors’ registration (a knowing inaccuracy) was satisfied, H&M argued, the District Court should move to the second requirement and ask the Register of Copyrights whether it would have refused to register Unicolors’ copyright if it had been aware of the inaccuracy. See §§ 411(b)(1)(B), (b)(2).

The District Court denied H&M’s motion. Among other things, it noted that “a registration remains effective despite containing inaccurate information” if the registrant included the inaccurate information in the registration application without “knowledge that it was inaccurate.” Because Unicolors did not know that it had failed to satisfy the “single unit of publication” requirement when it filed its application, the purported inaccuracy could not invalidate the registration.

The Ninth Circuit disagreed. It agreed with H&M that Unicolors had failed to satisfy the “single unit of publication” requirement (because it offered some of the 31 designs exclusively to certain customers). 959 F.3d, at 1198–1200. But did Unicolors know about this inaccuracy? In the Ninth Circuit’s view, it did not matter whether Unicolors did or did not know that it had failed to satisfy the “single unit of publication” requirement. That was because, in the Ninth Circuit’s view, the statute excused only good-faith mistakes of fact, not law. And Unicolors had known the relevant facts, namely, that some of the 31 designs had initially been reserved for certain customers.

Unicolors sought certiorari, asking us to review the Ninth Circuit’s interpretation of § 411(b)(1)(A). We granted the petition.

II

A brief analogy may help explain the issue we must decide. Suppose that John, seeing a flash of red in a tree, says, “There is a cardinal.” But he is wrong. The bird is not a cardinal; it is a scarlet tanager. John’s statement is inaccurate. But what kind of mistake has John made?

John may have failed to see the bird’s black wings. In that case, he has made a mistake about the brute facts. Or John may have seen the bird perfectly well, noting all of its relevant features, but, not being much of a birdwatcher, he may not have known that a tanager (unlike a cardinal) has black wings. In that case, John has made a labeling mistake. He saw the bird correctly, but does not know how to label what he saw. Here, 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 “single unit of publication.” The labeling problem here is one of law. Does that difference matter here? We think it does not.

Our reasons are straightforward. For one thing, we follow the text of the statute. Section 411(b)(1) says that Unicolors’ registration is valid “regardless of whether the [registration] certificate contains any inaccurate information, unless … the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate.” Both case law and the dictionary tell us that “knowledge” has historically “meant and still means ‘the fact or condition of being aware of something.’” Intel Corp. Investment Policy Comm. v. Sulyma, 140 S.Ct. 768, 776 (2020) (quoting Webster’s Seventh New Collegiate Dictionary 469 (1967)); see also Black’s Law Dictionary 888 (8th ed. 2004); New Oxford American Dictionary 938 (def. 2) (2d ed. 2005); Webster’s New College Dictionary 625 (3d ed. 2008).

Unicolors says that, when it submitted its registration application, it was not aware (as the Ninth Circuit would later hold) that the 31 designs it was registering together did not satisfy the “single unit of publication” requirement. If Unicolors was not aware of the legal requirement that rendered the information in its application inaccurate, it did not include that information in its application “with knowledge that it was inaccurate.” § 411(b)(1)(A) (emphasis added). Nothing in the statutory language suggests that this straightforward conclusion should be any different simply because there was a mistake of law as opposed to a mistake of fact.

To the contrary, nearby statutory provisions help confirm that here “knowledge” refers to knowledge of the law as well as the facts. Registration applications call for information that requires both legal and factual knowledge. See, e.g., § 409(4) (whether a work was made “for hire”); § 409(8) (when and where the work was “published”); § 409(9) (whether the work is “a compilation or derivative work”). Inaccurate information in a registration is therefore equally (or more) likely to arise from a mistake of law as a mistake of fact. That is especially true because applicants include novelists, poets, painters, designers, and others without legal training. Nothing in the statutory language suggests that Congress wanted to forgive those applicants’ factual but not their (often esoteric) legal mistakes.

Other provisions of the Copyright Act confirm that, in this context, the word “knowledge” means actual, subjective awareness of both the facts and the law. Those provisions suggest that if Congress had intended to impose a scienter standard other than actual knowledge, it would have said so explicitly. See, e.g., § 121A(a) (safe harbor for entities that “did not know or have reasonable grounds to know” that exported works would be used by ineligible persons); § 512(c)(1)(A) (safe harbor for internet service providers who are not actually aware of infringing activities on their systems and are “not aware of facts or circumstances from which infringing activity is apparent”); § 901(a)(8) (“ ‘notice of protection’ ” requires “actual knowledge … or reasonable grounds to believe” that a “work is protected”); § 1202(b) (civil remedies for certain acts performed by a person who knows or has “reasonable grounds to know” that he or she was facilitating infringement); § 1401(c)(6)(C)(ii) (for purposes of paragraph regarding the “[u]nauthorized use of pre-1972 sound recordings,” “knowing” includes one who “has actual knowledge,” “acts in deliberate ignorance of the truth or falsity of the information,” or “acts in grossly negligent disregard of the truth or falsity of the information”). The absence of similar language in the statutory provision before us tends to confirm our conclusion that Congress intended “knowledge” here to bear its ordinary meaning.

For another thing, cases decided before Congress enacted § 411(b) overwhelmingly held that inadvertent mistakes on registration certificates did not invalidate a copyright and thus did not bar infringement actions. Urantia Foundation v. Maaherra, 114 F.3d 955, 963 (CA9 1997). Many of those cases involved mistakes of law. See, e.g., id., at 961, 963; Billy-Bob Teeth, Inc. v. Novelty, Inc., 329 F.3d 586, 591 (CA7 2003); Advisers, Inc. v. Wiesen-Hart, Inc., 238 F.2d 706, 707–708 (CA6 1956) (per curiam). We can find no indication that Congress intended to alter this well-established rule when it enacted § 411(b). See Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 813 (1989) (“When Congress codifies a judicially defined concept, it is presumed, absent an express statement to the contrary, that Congress intended to adopt the interpretation placed on that concept by the courts”); see also Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 538 (2013) (similar).

Further, those who consider legislative history will find that history persuasive here. It indicates that Congress enacted § 411(b) to make it easier, not more difficult, for nonlawyers to obtain valid copyright registrations. The House Report states that its purpose was to “improve intellectual property enforcement in the United States and abroad.” H. R. Rep. No. 110–617, p. 20 (2008). It did so in part by “eliminating loopholes that might prevent enforcement of otherwise validly registered copyrights.” The Report specifically notes that some defendants in copyright infringement cases had “argued … that a mistake in the registration documents, such as checking the wrong box on the registration form, renders a registration invalid and thus forecloses the availability of statutory damages.” Congress intended to deny infringers the ability to exploit this potential loophole. Of course, an applicant for a copyright registration—especially one who is not a lawyer—might check the wrong box on the registration documents as a result of a legal, as well as a factual, error. Given this history, it would make no sense if § 411(b) left copyright registrations exposed to invalidation based on applicants’ good-faith misunderstandings of the details of copyright law.

III

H&M argues that our interpretation of the statute will make it too easy for copyright holders, by claiming lack of knowledge, to avoid the consequences of an inaccurate application. But courts need not automatically accept a copyright holder’s claim that it was unaware of the relevant legal requirements of copyright law. We have recognized in civil cases that willful blindness may support a finding of actual knowledge. Circumstantial evidence, including the significance of the legal error, the complexity of the relevant rule, the applicant’s experience with copyright law, and other such matters, may also lead a court to find that an applicant was actually aware of, or willfully blind to, legally inaccurate information.

H&M also argues that our interpretation is foreclosed by the legal maxim that “ignorance of the law is no excuse.” This maxim normally applies where a defendant has the requisite mental state in respect to the elements of a crime but claims to be unaware of the existence of a statute proscribing his conduct. It does not apply in this civil case concerning the scope of a safe harbor that arises from ignorance of collateral legal requirements.

* * *

For these reasons, the judgment of the Ninth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.

Justice THOMAS, with whom Justice ALITO joins, and with whom Justice GORSUCH joins as to all but Part II, dissenting.

A copyright registration is invalid if the registrant included materially inaccurate information in its application “with knowledge that [the information] was inaccurate.” 17 U.S.C. § 411(b)(1)(A). In its petition for certiorari, Unicolors asked us to decide a question on which the Courts of Appeals were split: whether § 411(b)(1)(A)’s “knowledge” element requires “indicia of fraud.” Specifically, Unicolors argued that “knowledge” requires “inten[t] to defraud the Copyright Office.”

Yet now, after having persuaded us to grant certiorari on this issue, Unicolors has chosen to rely on a different argument in its merits briefing. It no longer argues that § 411(b)(1)(A) requires fraudulent intent and instead proposes a novel “actual knowledge” standard. Because I would not reward Unicolors for its legerdemain, and because no other court had, before today, ever addressed whether § 411(b)(1)(A) requires “actual knowledge,” I would dismiss the writ of certiorari as improvidently granted.

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Check Your Understanding – Unicolors

Question 1. A certificate of registration containing inaccurate information is invalid if which of the following is true?

Question 2. What does the term “knowledge that [information] was inaccurate” refer to, in the context of § 411(b)(1)?

C. Deposit

The Copyright Act includes two distinct deposit requirements: one is a prerequisite to registration, and the other is a means to enhance the collections of the Library of Congress.

Under § 408 of the 1976 Act, an application for copyright registration must be accompanied by a deposit of one or more copies (or phonorecords) of the subject matter for which registration is sought (the 1909 Act included the same requirement). The Copyright Office has promulgated regulations exempting certain subject matter from the deposit requirement, in cases in which it would be burdensome and/or inappropriate, e.g., sculptural works. In Educ. Testing Servs., the plaintiff in the case registered its copyrighted SAT tests pursuant to a regulation that foregoes the deposit requirement with respect to “secure tests.” In Educ. Testing Servs., the court observed:

ETS holds registered copyrights for all its tests, which it registers pursuant to a regulation promulgated by the Register of Copyrights allowing for “secure test” registration. See 37 C.F.R. § 202.20(c)(2)(vi) (1985). A “secure test” is defined as “a nonmarketed test administered under supervision at specified centers on specific dates, all copies of which are accounted for and either destroyed or returned to restricted locked storage following each administration.” 37 C.F.R. § 202.20(b)(4). The regulation suspends the requirement to deposit copies of the work, and requires instead that registrants of secure tests need only deposit a sufficient portion or a description of the test sufficient to identify it. See id. § 202.20(c)(2)(vi). The statutory and constitutional authorization for these regulations was upheld in National Conference of Bar Examiners v. Multistate Legal Studies, Inc., 692 F.2d 478, and is not challenged in this case.

Using the procedure established by this regulation, representatives of the Copyright Office examined ETS’ tests and then returned them. ETS deposited only the front and back covers of its tests.⁶

Section 407 of the 1976 Act requires the deposit of copies or phonorecords of published works to the Library of Congress (the 1909 Act included a similar requirement). Failure to do so within three months of publication can subject the copyright owner to a fine, but will not affect the copyright status of the work.

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