Copyright fraud: Top
(1) Generally
Proof of fraud on the Copyright Office requires meeting a threshold degree of culpability and materiality to the subject matter at issue. These tests are explained as including alternative forms of proof by the Court in Midway Manufacturing America v. Bandi 546 F. Supp. 125, 216 USPQ 812 (1982). The court found culpability may be proven by either (1) knowing or (2) intentional conduct, and materiality may be met by proof that the omission would either (1) harm the defendant, or (2) affect of the validity of the copyright. see, e.g. the innocent infringer defense, 17 USC 405(b).
(2) Preexisting works
International Biotical Corp. v. Associated Mills 239 F. Supp 511, 144 USPQ 577, 580 (ND Ill, 1964). "The Copyright Office had all of the various editions of [the work] before it" and the nature of the changes were described, there would be no fraud.
"A substantial portion of plaintiff's copyright material incorporates text and photographs that were previously published and copyrighted by plaintiff in 1954 and 1955 in connection with its earlier Infra-Message device. (Def. Exs 11 and 12) Plaintiff did not inform the Copyright Office of its earlier publications in its application to register the application, Item 7, which requires a listing of the "New Matter In This Version" of the material sought to be copyrighted was left blank by plaintiff in each of the copyright certificates in suit."
Baldwin Cook Co. v. Keith Clark Inc. 383 F. Supp. 650, 183 USPQ 209, 212 (ND Ill, 1974) aff'd per curiam 505 F2d 769,209 USPQ 769 (7th Cir, 1974)
Copyright Fraud: Materiality
Whimsicality v. Rubies Costume Co. 891 F2d 452, 13 USPQ 2d 1296 (2d Cir, 1989). reversed on remand upon finding of non-materiality 29 USPQ 2d 1620 (EDNY 1993)
but see Santryayl v. Burrell 45 USPQ 2d 1696 (SDNY 1998) no need to disclose 'sampled' works;
In a case of claimed copyright in a product label, where a US distributor registered the copyright, but did not disclose the original German product's label as a preexisting work, the Western District of New York held the copyright invalid. GB Marketing USA Inc. v. Gerolsteiner Brunnen GmbH 21 USPQ 2d 1982 (WDNY 1991)