Copyright Developments

In Acuti v. Authentic Brands Grp. LLC, 33 F.4th 131 (2d Cir. May 4, 2022), the Second Circuit considered an appeal regarding the rights to the musical composition “Can’t Help Falling in Love,” written in part by Hugo Peretti and made popular by Elvis Presley.  The song was created in 1961, under the 1909 Copyright Act, which provided for an initial copyright term of 28 years with a contingent right to renew the copyright for an additional 28-year renewal term.

In Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., Case No. 20–915, 595 U. S. ____ (2022), the U.S. Supreme Court held that the safe harbor provision provided under § 411(b) of the Copyright Act does not distinguish between a mistake of law and a mistake of fact.  Lack of either factual or legal knowledge can excuse an inaccuracy in a copyright registration.

The Supreme Court vacated the judgment of the U.S. Court of Appeals for the Ninth Circuit and remanded the case for further proceedings.

The Copyright Act protects “original works of authorship.” 17 U.S.C. § 102(a) (emphasis added). Courts have uniformly understood “authorship” to refer to a quality that is uniquely “human,” often alluding to the nexus between the human mind and creative expression.  For example, some of the earliest copyright cases defined copyright as “the exclusive right of man to the production of his own genius or intellect.” Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 56 (1884). See also Trade-Mark Cases, 100 U.S 82, 94 (1879) (explaining that copyright law only protects “the fruits of intellectual labor” that are “founded in the creative powers of the mind”).