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  • Writer's pictureDominique Young

It's still your original work

Most attorneys will say that you need an attorney for copyright applications. Before filing an application, research needs to be conducted to be sure that the work is original to you. Attorneys go to school for this type of analysis. You also want to be sure that your application is completed correctly the first time. Seems appropriate that attorneys would market their services for this matter. Yet, many applicants for copyrights are pro se creatives and may not understand how to complete the application. Sometimes this is fatal to the registration. Other times, the work is registered. But what happens when there is a mistake on the application where a valid registration was provided? The Supreme Court answered this question earlier this year.

This past February, the Supreme Court issued an opinion regarding mistakes in copyright applications. The case was Unicolors, Inc., Petitioner v. H&M Hennes & Mauritz, L.P. The Court stated that if you make an error on your copyright application, the registration that resulted from the inaccurate application was still valid. It seems that H&M used fabric designs that were original to Unicolors, Inc. without permission. As a result Unicolors sued H&M. Rightfully, so. At the time that the case was presented, Unicolors had a valid copyright registration on the fabric designs. It wasn't until Unicolors brought the action did H&M argue that because the copyright was not valid, they could not be sued. The final determination is that even if there is an error, of which you did not have knowledge at the time of the application, your copyright registration is still valid and you can pursue legal action from anyone that violates that copyright registration.

This opinion is good and cautious for the copyright industry. Copyright applications are a few pages long, though the questions asked in the application can be complicated for individuals not well versed in copyright law, which is a great many creatives. Usually on intellectual property applications, the advice is to get counsel to complete the application on your behalf if you are not able to understand the questions being asked. Seems reasonable, though not often completed due to the cost of hiring an attorney. Now, the Court is saying if you make a mistake on the application and the registration is granted with the mistake on the application, the registration is valid. Great! Yet, this can be a slippery slope.

If a copyright application is approved with an honest mistake and you are pursuing redress based on that valid registration, you should be able to obtain redress. Yet, that should not open the door to poorly completed applications in a rush to be the first to the Copyright Office. A mistake is a mistake. Yet don't stretch the bounds provided by Congress and confirmed by the Supreme Court on the basis of this opinion. The Court acknowledged that Congress wrote the standard into the Copyright Act to ensure that pro se applicants could not be removed from redress because they are creatives and may not understand the application. Though I would not expect the Copyright Office to take this opinion lightly. The Copyright Office may take a much closer review of applications with this opinion.

Let's not forget the Olivia Rodrigo and Taylor Swift fiasco. Olivia's songs went undetected as original until Taylor Swift recognized her lyrics in Olivia's songs. Now, a huge portion of Olivia's profits go to Taylor in compensation for Olivia's use of Taylor's lyrics. It's a hefty price to pay instead of reviewing and researching from the beginning.

Even with me being an attorney that loves intellectual property law, I'm not going to say that you have to have counsel to complete a Copyright application. It can be completed by anyone for their own work. Yet, if you have a question, go ahead and ask an attorney that completes copyright applications. Two things could happen, you could get the copyright registered or you could get a refusal and have to pay an attorney by the hour to overcome the refusal which may or may not be able to be obtained. To save your availability for redress, and your coins, secure counsel ahead of time.

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