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Documentation, Celebration, and Protection of Our Natural World

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Documentation, Celebration, and Protection of Our Natural World NO. 20-915 In the Supreme Court of the United States UNICOLORS, INC., Petitioner, v. H&M HENNES & MAURITZ, L.P., Respondent. __________________________ On a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF OF AMICI CURIAE AMERICAN SOCIETY OF MEDIA PHOTOGRAPHERS, INC. AND CALIFORNIA SOCIETY OF ENTERTAINMENT LAWYERS JOINED BY TWELVE CREATOR RIGHTS ORGANIZATIONS, IN SUPPORT OF PETITIONER DARREN J. QUINN THOMAS B. MADDREY LAW OFFICES OF COUNSEL OF RECORD DARREN J. QUINN AMERICAN SOCIETY OF 12702 VIA CORTINA, SUITE 105 MEDIA PHOTOGRAPHERS, INC. DEL MAR, CA 92014 FOUR EMBARCADERO CENTER (858) 509-9401 SUITE 1400 [email protected] SAN FRANCISCO, CA 94111 STEVEN T. LOWE (214) 701-1875 CALIFORNIA SOCIETY OF [email protected] ENTERTAINMENT LAWYERS 8383 WILSHIRE BLVD., SUITE 1038 BEVERLY HILLS, CA 90211 (310) 477-5811 [email protected] AUGUST 10, 2021 COUNSEL FOR AMICI CURIAE SUPREME COURT PRESS ♦ (888) 958-5705 ♦ BOSTON, MASSACHUSETTS i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ...................................... iii INTEREST OF THE AMICI CURIAE ....................... 1 SUMMARY OF ARGUMENT .................................... 6 ARGUMENT ............................................................. 10 I. COPYRIGHT REGISTRATION IS DESIGNED TO BE ACCOMPLISHED BY CREATORS WITHOUT LEGAL ASSISTANCE, YET THE PROCESS IS RIFE WITH THE POSSIBILITY OF INADVER- TENT ERROR. .................................................... 10 A. The Questions Posed in the Copyright Registration Application Require Complex Legal Analysis and Legal Con- clusions That Vex Even Experienced Copyright Practitioners. ............................. 12 B. Under the Ninth Circuit’s Reasoning, the Penalty for Making a Good-Faith Error in Your Legal Conclusion Can Result in Invalidation of Your Copyright and Its Attendant Protections, a Result That Awards Infringers and Punishes Those Who Were Infringed. ...................... 17 C. Small and Individual Creators Are Dis- proportionally Reliant on Statutory Damage Awards That Are Most Easily Lost When Error Occurs. ........................... 21 II. SECTION 411(b) IS CLEAR: TO CONSTITUTE FRAUD ON THE COPYRIGHT OFFICE, INAC- CURATE INFORMATION MUST BE KNOWN TO BE INACCURATE. .............................................. 23 ii TABLE OF CONTENTS – Continued Page A. A “Knowing Inaccuracy” in a Regis- tration Should Only Be Penalized Based on a Series of Affirmative Choices on the Part of the Copyright Owner. ............ 25 III. FOR INDIVIDUAL AND SMALL CREATORS, THE PROTECTIONS GRANTED BY COPYRIGHT LAW ARE VITAL TO ENSURING THEIR CREATIVE CONTRIBUTIONS TO SOCIETY. .......................... 26 CONCLUSION .......................................................... 31 iii TABLE OF AUTHORITIES Page TABLE OF AUTHORITIES CASES Advisers, Inc. v. Wiesen-Hart, Inc., 238 F.2d 706 (6th Cir. 1956) ............................. 24 Billy-Bob Teeth, Inc. v. Novelty, Inc., 329 F.3d 586 (7th Cir. 2003) ........................... 24 Bouchat v. Baltimore Ravens, Inc., 241 F.3d 350 (4th Cir. 2001) ........................... 23 Bouve v. Twentieth Century-Fox Film Corp., 122 F.2d 51 (D.C. Cir. 1941) ............................. 24 Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) ............................................. 20 Fonar Corp. v. Domenick, 105 F.3d 99 (2d Cir. 1997) ................................. 23 Fourth Estate Pub. Benefit Corp. v. Wall- Street.com, LLC, 139 S. Ct. 881 (2019) ............. 10 Gallup, Inc. v. Kenexa Corp., 149 F. App’x 94 (3d Cir. 2005) .......................... 23 Gold Value Int’l Textile v. Sanctuary Clothing, 925 F. 3d 1140 (9th Cir. 2019) ............... 18, 19, 20 Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979 (2013) ....................................... 21 Montz v. Pilgrim Films & TV, Inc., 649 F.3d 975 (9th Cir. 2011) ............................ 1 One Treasure Ltd., Inc. v. Richardson, 202 F. App’x 658 (5th Cir. 2006) ....................... 24 Roberts v. Gordy, 877 F.3d 1024 (11th Cir. 2017) ....................... 24 iv TABLE OF AUTHORITIES – Continued Page Torres-Negron v. J & N Records, LLC, 504 F.3d 151 (1st Cir. 2007) .............................. 23 STATUTES 17 U.S.C. § 101 .................................................... 14, 15 17 U.S.C. § 102(a) ..................................................... 10 17 U.S.C. § 411(b) ........................................... 6, 23, 25 17 U.S.C. § 412 .......................................................... 22 17 U.S.C. § 412(2) ..................................................... 22 17 U.S.C. § 504 .......................................................... 22 17 U.S.C. § 504(c)(1)-(2) ............................................ 21 17 U.S.C. § 505 .......................................................... 22 Pub. L. No. 110-403, 122 Stat. 4256 (2008), The Prioritizing Resources and Organization for Intellectual Property Act (“Pro IP Act”) (2008) ................................................................... 6 JUDICIAL RULES Sup. Ct. R. 37.6 ........................................................... 1 v TABLE OF AUTHORITIES – Continued Page OTHER AUTHORITIES American Intellectual Property Law Association, 2019 Report of the Economic Survey (2019) .................................................... 18 Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, Photographers, at https:// www.bls.gov/ooh/media-and- communication/photographers.htm .................. 18 Coalition of Visual Artists, Comments in Response to U.S. Copyright Office NOI Re Online Publication, 84 Fed. Reg. 66328 (Dec. 4, 2019) .................................. 15 Deborah R. Gerhardt, Copyright Publication on the Internet, 60 IDEA 1 (2020) ............................................... 14 Dustin Stout, Social Media Statistics 2021: Top Networks By the Numbers, https:// dustinstout.com/social-media-statistics/ .......... 29 eMarketer, Global Instagram Users 2020, https:// www.emarketer.com/content/global- instagram-users-2020 ....................................... 29 Graphics Artist Guild, GRAPHIC ARTISTS GUILD HANDBOOK: PRICING & ETHICAL GUIDELINES ......................... 5 Melville B. Nimmer, Copyright Publication, 56 COLUM. L. REV. 185 (1956) ............................ 16 vi TABLE OF AUTHORITIES – Continued Page Statista, Number of Monthly Active Facebook Users Worldwide as of 2nd Quarter 2021, https://www.statista.com/statistics/ 264810/number-of-monthly-active- facebook-users-worldwide/ ................................ 29 Stephen E. Siwek, Copyright Industries in the U.S. Economy: The 2018 Report (2018), available at https://iipa.org/files/uploads/ 2018/12/2018CpyrtRptFull.pdf ......................... 27 Thomas F. Cotter, Toward A Functional Definition of Publication in Copyright Law, 92 MINN. L. REV. 1724 (2008) ............................ 17 U.S. Copyright Office, Register Your Work: Registration Portal, https://copyright.gov/registration/ .............. 10, 13 1 INTEREST OF THE AMICI CURIAE1 AMERICAN SOCIETY OF MEDIA PHOTOGRAPHERS, INC. (ASMP) is a 501(c)(6) non-profit trade association representing thousands of members who create and own substantial numbers of copyrighted photographs. These members all envision, design, produce, and sell their photography in the commercial market to entities as varied as multinational corporations to local mom and pop stores, and every group in between. In its seventy-six-year history, ASMP has been com- mitted to protecting the rights of photographers and promoting the craft of photography.1 CALIFORNIA SOCIETY OF ENTERTAINMENT LAWYERS (CSEL) is an organization consisting of California attorneys who seek to protect and defend the rights of creative professional in the entertainment industry. CSEL strives to provide support to screenwriters, authors, and other creative professionals who are at risk of having their rights egregiously stripped away. CSEL is committed to advocating on behalf of creators, whose claims are so often not sufficiently funded, in a “dog eat dog” industry. Montz v. Pilgrim Films & TV, Inc., 649 F.3d 975, 981 (9th Cir. 2011) (citing Woody Allen, CRIMES AND MISDEMEANORS (Orion 1 In accordance with this Court’s Rule 37.6, counsel for amici curiae certify that this brief was not authored in whole or in part by counsel for any party and that no person or entity other than amici curiae, their members, or their counsel have made a monetary contribution intended to fund the preparation or submission of this brief. All parties have consented to the filing of this brief by blanket consent. 2 Pictures 1989)) (“It’s worse than dog eat dog. It’s dog- doesn’t-return-other-dog’s-phone-calls.”). AMERICAN PHOTGRAPHIC ARTISTS (APA) is a not- for-profit trade association of professional photo- graphers and copyright owners. APA members have a strong interest in the issues presented by this case because their businesses and livelihoods depend upon the broadly defined subject matter that is protected under the Copyright Act. ARTISTS RIGHTS SOCIETY (ARS) is the largest U.S. visual rights society and Copyright Management Organization (CMO), licensing the copyrights of more than 80,000 artist members worldwide. Its rolls are comprised of painters, sculptors, illustrators, and architects. While ARS’ membership includes both commercial and fine artists and their heirs, the majority of its members are fine artists who create paintings, drawings, limited edition prints and sculp- ture for a market consisting initially of collectors. However, all artists
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