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IP Law Daily, COPYRIGHT—D. N.M.: Confusion over difference between collective and group registration found to be an honest mistake, (Aug 29, 2022)

Law Firms Mentioned:Bardacke Allison LLP
Organizations Mentioned:Bardacke Allison, LLP | Lejeune Law, PC | Meow Wolf, Inc. | Register of Copyrights

By Matthew Hersh, J.D.

But the same could not be said for including an image of someone else’s work within the deposit copy of your own.

An artist who combined into a single registration a number of different works of differing publication status made only an honest ...

By Matthew Hersh, J.D.

But the same could not be said for including an image of someone else’s work within the deposit copy of your own.

An artist who combined into a single registration a number of different works of differing publication status made only an honest mistake in light of the “esoteric” rules distinguishing a group registration from a collective work registration, the federal court in Albuquerque, New Mexico has held. But the court, while refusing to refer to the Register of Copyrights the single registration error, found that the artist’s separate mistake of including within her deposit copy an image of a work belonging to someone else entirely did indeed warrant referral. (Oliver v. Meow Wolf, Inc., August 25, 2022, Khalsa, K.).

The registration at issue was filed by Lauren Adele Oliver, the creator of a visual work of art entitled “the Space Owl.” In 2015, she was asked to install her artwork at a permanent exhibition in Santa Fe, New Mexico, called the “House of Eternal Return.” The exhibition, which describes itself as “a mind-bending, explorable art experience for people of all ages,” is run by a Santa Fe-based artists’ collective named Meow Wolf. The Space Owl exhibit, as well as the overall exhibition, were given rave reviews, and both the installation as well as the resulting litigation received extensive coverage in the Santa Fe media.

The artist sued the collective in 2020, contending that the collective was threatening—allegedly in violation of the Visual Artists Rights Act—to remove her work from the exhibition and in so doing destroy it. The collective moved to refer the validity of the artist’s copyright registration to the Register of Copyrights, leading to this opinion.

Referral of registration. The court found that referral was warranted, but only on one of the three grounds sought by the collective. Under Section 411(b) of the Copyright Act, innocent mistakes on a copyright registration do not invalidate the registration. However, but if inaccurate information was included on an application for copyright registration “with knowledge that it was inaccurate,” then courts are obliged to ask the Register of Copyrights whether the inaccuracy of that information, if known, would have caused the Register to refuse registration. In Unicolors, Inc. v. H&M Hennes & Mauritz, L. P., 142 S. Ct. 941, the Supreme Court made clear that the term “knowledge” means “actual, subjective awareness of both the facts and the law.” In other words, as the district court explained, “either a mistake of fact or a mistake of law will excuse the inclusion of inaccurate information on a registration application.”

Under that standard, the court held, two of the three grounds for referral failed to meet the threshold. First, the court noted, to the extent that the artist simply misstated the year in which her various works were completed, this was not an intent to deceive as she specifically clarified the information upon a follow-up request by the Copyright Office. To be sure, her initial registration stated that the various works contained within her installation had been created in 2015, when in fact they had each been created in different years. But when the Office followed up to ask her about the particular dates for each work, the court noted, she responded truthfully. There was “no sound basis to allege” a knowing misstatement here, the court concluded.

Similarly, the court noted, there was no meaningful significance to the fact that the artist inaccurately classified her works as an unpublished collection when, in fact, three of those works had been previously published. Under Copyright Office regulations, it is permissible to include multiple works within a single “group” registration as long as each work is unpublished (or if they have all been published on the same date). But it is also possible, under different rules, to register a “collective” work on a single registration—even if the collection consists of published and unpublished components. The artist, thinking that she had created a collective work, registered the entire work on a single registration. That was wrong, the court noted—but given the complexities of Copyright Office regulations, it was likely an innocent mistake. After all, the court noted, “this area of copyright law is esoteric enough that a layperson could plausibly misunderstand it.” Moreover, the court noted, the artist’s follow-up correspondence with the Copyright Office made no effort to hide the fact that some of the pieces had been published previously. There was no knowing misstatement here.

But while referral was not appropriate on these two issues, the court found, referral was indeed warranted as to a third. Several of the photographs that the artist submitted in support of her registration, the court noted, included a white bench that was designed by someone else—and yet the artist named herself as the author of the entire work. The artist argued that it would not have mattered because the bench itself, as a useful article, was not copyrightable. But that was not so the court held. The bench’s “sculpted edges and stylized supports” could be perceived as works of art separate from the bench, the court noted, and would qualify as protectable pictorial, graphic, or sculptural works on their own or in some other medium if imagined separately from the bench. Nor could the author claim innocent mistake, the court noted—she was “at best willfully blind to the need to identify” the true author in her registration. Referral to the Register was therefore warranted.

The case is No. 1:20-cv-00237-KK-SCY.

Attorneys: Cody Lejeune (Lejeune Law, PC) for Lauren Adele Oliver. Cole P. Wilson (Bardacke Allison LLP) for Meow Wolf, Inc.

Companies: Meow Wolf, Inc.

Cases: Copyright NewMexicoNews GCNNews