IKUTA, Circuit Judge:

Mary Lippitt claims Steve McConnell infringed her copyrights in two charts depicting organizational change. The key question before us is whether the copyright in one of those charts was registered with the Copyright Office, such that it will support a suit for copyright infringement. We hold that Lippitt created a genuine issue of material fact

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on that question. We also hold, as a matter of first impression, that by registering a derivative work, an author registers all of the material included in the derivative work, including that which previously appeared in an unregistered, original work created by the author. Accordingly, we reverse, vacate, and remand. I A Doctor Mary Lippitt and her company, Enterprise Management Ltd., have built a career advising organizations on how to accomplish organizational change. ^[1] During her more than 40 years in this field, Lippitt developed a substantial array of material for multi-day presentations and consulting activities on the topic of organizational change. According to Lippitt, she distilled the essence of her work into a one-page chart that graphically shows the components necessary to accomplish organizational change and demonstrates that organizational change will fail if any of the components are missing. The first version of this chart was entitled “Managing Complex Change.” The chart includes six columns and six rows of text boxes connected by arrows depicting cause and effect. The top row first lists the five essential components: “Vision”; “Skills”; “Incentives”; “Resources”; and “Action Plan.” The sixth column has the word “Change,” indicating that with all five components, successful organizational change is possible. The five lower rows all have one To address this argument, we must first determine whether a copyright owner who creates an original work (but does not register it) and subsequently registers a derivative work based on that original work registers the elements in the original work that are included in the derivative work. This is an issue of first impression in our Circuit. Given the flexible nature of registration, we conclude that registration of a derivative work registers such elements. The owner of an original work has a copyright “immediately upon the work’s creation.” Fourth Est. Pub. Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 887 (2019) (citing 17 U.S.C. § 106). If the owner of an original work prepares a derivative work—“a work based upon one or more preexisting works that recasts, transforms, or adapts the preexisting work,” DC Comics v. Towle, 802 F.3d 1012, 1023 (9th Cir. 2015) (citation and quotation marks omitted)—the owner has a copyright in both the original

limine stage. Lippitt was not required to plead this specific legal theory in the complaint in order to preserve it. See Elec. Constr. & Maint. Co. v. Maeda Pac. Corp., 764 F.2d 619, 622 (9th Cir. 1985) (“A party does not need to plead specific legal theories in the complaint, as long as the opposing party receives notice as to what is at issue in the lawsuit.”). 6 The jury’s determination as to which registration certificate registered the Managing Complex Change chart may limit the remedies available to Lippitt, as she is entitled to statutory damages and attorneys’ fees only to the extent infringement occurred after the work was registered. See 17 U.S.C. § 412.

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elements and all derivative elements. See 17 U.S.C. § 106(2) (stating that the copyright owner “has the exclusive right[] to . . . prepare derivative works based upon [the owner’s] copyrighted work”); DC Comics, 802 F.3d at 1023 (recognizing that the owner of the original work “retains a copyright in that derivative work with respect to all of the elements that the derivative creator drew from the underlying work and employed in the derivative work”). The Copyright Act’s registration requirement does not impose a heavy burden on the copyright owner. See Fourth Est., 139 S. Ct. at 887 (noting that the registration requirement “is akin to an administrative exhaustion requirement”). A work can be registered at any time during the term of copyright and any extension of that term. See 17 U.S.C. § 408(a). There are disadvantages to delaying registration, however. If a certificate of registration is issued “before or within five years after first publication of the work[, it] shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.” Id. § 410(c). But if the certification of registration is issued more than five years after first publication, “[t]he evidentiary weight to be accorded [to] the certificate of a registration . . . shall be within the discretion of the court.” Id. In addition, certain remedies may be limited for infringement prior to registration. See id. § 412; supra at p.14, n.6. Nor is the registration procedure burdensome. “To obtain registration, the author of a work must submit to the Register of Copyrights a copy of the work and an application.” Unicolors, Inc. v. H&M Hennes & Mauritz, L. P. (Unicolors I), 142 S. Ct. 941, 945 (2022) (citing 17 U.S.C. §§ 408, 409). After examining the application and the work, if the Register “determines that . . . the material deposited constitutes copyrightable subject matter and that the other

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legal and formal requirements” are satisfied, “the Register shall register the claim and issue to the applicant a certificate of registration.” 17 U.S.C. § 410(a). Because the owner can register the original work at any time and the registration applies to all “the material deposited [that] constitutes copyrightable subject matter,” id., we conclude that when a derivative work includes copyrightable elements of the unregistered original work, the owner’s registration of the derivative work also registers the included elements of the original work. All circuits that have addressed this issue agree with this conclusion. In the leading case of Streetwise Maps, the owner of a copyright in a New York street map registered a second street map that was derived from that original map and added “depictions of the subway and bus systems.” Streetwise Maps, Inc. v. VanDam, Inc., 159 F.3d 739, 741, 746 (2d Cir. 1998). Later, the owner of the copyright sued a third party for infringing its copyright in the original map. See id. at 742. The defendant argued that, first, the owner could not bring the suit because it had not registered the original map and, second, the registration for the derivative map registered only those elements that had not been included in the original. See id. at 746–47. The Second Circuit rejected this argument. See id. at 747. It held that where an owner holds the copyright in both the derivative and original work, “the registration certificate relating to the derivative work in this circumstance will suffice to permit it to maintain an action for infringement based on defendants’ infringement of the pre-existing work.” Id.; see also 2 Nimmer on Copyright § 7.16[B][5][c] (2023) (“[W]hen the same party owns the derivative . . . work plus the underlying elements incorporated therein, its registration of the former is sufficient to permit an infringement action on the

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underlying parts, whether they be new or preexisting.” (citation and quotation marks omitted)); R.W. Beck, Inc. v. E3 Consulting, LLC, 577 F.3d 1133, 1143 (10th Cir. 2009) (“[I]f the same party owns a copyright in both a derivative work . . . and the underlying work that is incorporated in the derivative work, registration of a copyright in the derivative work is sufficient to permit an infringement action on either preexisting . . . material or on any newly contributed material.”); Christopher Phelps & Assocs., LLC v. Galloway, 492 F.3d 532, 539 (4th Cir. 2007) (holding that a copyright owner’s registration of a derivative work also registered the elements of the owner’s original work that appeared in the derivative work). 7 Applying this analysis here, we hold that Lippitt can argue that she registered the elements of the Managing Complex Change chart that were included in the Aligning for Success chart. McConnell did not create a disputed material fact as to Lippitt’s authorship of the Managing Complex Change chart, and the parties agree that Lippitt is the author of the Aligning for Success chart. Nor do the parties dispute that the Aligning for Success chart is a derivative work of the Managing Complex Change chart or that elements of the Managing Complex Change chart are included in the Aligning for Success chart. Therefore, the registration certificates for the Aligning for Success chart (the 226 registration certificate and the 350 registration

7 Nevertheless, registering the derivative work will not register elements of the original work that were not included in the derivative work. See Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1231 (11th Cir. 2008).

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certificate) permit Lippitt to bring an action for infringement of the aspects of the Managing Complex Change chart that were included in the Aligning for Success chart. See Streetwise, 159 F.3d at 747. McConnell argues that the registrations for the Aligning for Success chart could not have registered the Managing Complex Change chart because the registration certificates do not expressly refer to the Managing Complex Change chart. Further, he argues, the registration for the 226 registration certificate is inconsistent with Lippitt’s arguments because it expressly states that registration for the Aligning for Success chart or an earlier version of that chart had not been previously made to the Copyright Office, and it does not indicate that the work is a derivative work. We disagree. “[T]he Copyright Act provides a safe harbor” for inaccurate information in a registration certificate. Unicolors I, 142 S. Ct. at 945. A certificate of registration is valid even if it contains “any inaccurate information, unless” the copyright registration applicant included the information “with knowledge that it was inaccurate” and “the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration.” 17 U.S.C. § 411(b)(1). Thus, “[l]ack of knowledge of either fact or law can excuse an inaccuracy in a copyright registration.” Unicolors I, 142 S. Ct. at 945. And, with respect to the second element, “the court shall request the Register of Copyrights to advise the court whether the inaccurate information, if known, would have caused the Register of Copyrights to refuse registration.” 17 U.S.C. § 411(b)(2). McConnell does not argue, nor does the record show, that Lippitt knowingly omitted information about

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preexisting works or that information about preexisting works was material. See 2 Nimmer on Copyright § 7.20[B][1] (2023) (“In general, failure to disclose that the registered work is derivative of an earlier, underlying work should occasion rejection of the registration certificate only if the claimant was for some reason ineligible to register the derivative work.”). Therefore, Lippitt created a genuine issue of material fact that elements of the Managing Complex Change chart that were included in the Aligning for Success chart were registered either by the 226 registration certificate or the 350 registration certificate. Even if Lippitt is not entitled to the safe harbor for inaccurate information in the 226 registration certificate, the 350 registration certificate accurately stated that it registered a derivative work of the manual titled “Transition Accomplishing Organizational Change,” which, according to Lippitt’s declaration, was the title of the presentation that included the Managing Complex Change chart and was created in 1987. The 350 registration certificate also states that a “previous or alternative title[]” of the registered work was “Managing Complex Change,” the same title as the Managing Complex Change chart. This evidence creates a genuine issue of material fact whether Lippitt registered elements of the Managing Complex Change chart when she subsequently registered the Aligning for Success chart under the 350 registration certificate.

Because Lippitt raised a genuine dispute whether she registered the Managing Complex Change chart directly (in the 202 registration certificate) or whether she registered elements of that chart by registering the Aligning for Success chart (in the 226 registration certificate or the 350

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registration certificate), we reverse the grant of summary judgment for McConnell. 8 We therefore also vacate the jury verdict for McConnell because, as a result of the grant of summary judgment, the district court prevented Lippitt from introducing any evidence and making any argument as to the Managing Complex Change chart at trial. 9 III Finally, we consider Lippitt’s challenge to the jury instruction stating that if the jury found that McConnell “accessed and copied other work but did not copy the registered work then the challenged work is an independent creation,” and the jury’s verdict should be for McConnell.10

8 Our conclusion is consistent with the Tenth Circuit’s resolution of a separate but similar copyright infringement suit brought by Lippitt. See Enter. Mgmt. Ltd. v. Warrick, 717 F.3d 1112 (10th Cir. 2013). In that case, the Tenth Circuit reversed a grant of summary judgment for the defendant, holding that Lippitt presented a genuine issue of material fact that the Managing Complex Change chart was registered both because “Lippitt testified at her deposition that the [Managing Complex Change chart] was first included in materials registered in 1987,” in the 202 registration certificate, and because the 226 registration certificate and 350 registration certificate registered the Managing Complex Change chart as a preexisting work that was included in the Aligning for Success chart. Id. at 1120 & n.8, 1121. 9 Because we reverse the grant of summary judgment and vacate the jury verdict, we also vacate the award of attorneys’ fees to McConnell. See 17 U.S.C. § 505 (stating that a court may award “attorney’s fee[s] to the prevailing party” in a copyright infringement action). 10 Lippitt also argues that the district court erred in issuing a supplemental jury instruction that “[t]he Auburn School District chart . . . was not derived from the Aligning for Success Chart.” We reject this argument because Lippitt produced no evidence at trial that the creators of this chart accessed the Aligning for Success chart either directly or through widespread dissemination. See Rentmeester v. Nike, Inc., 883

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We conclude that this instruction is incorrect. Under our precedent, if elements in an original work were copied by an infringing work, and the defendant copies those elements as set forth in the infringing work, the defendant’s copy infringes the original work. See DC Comics, 802 F.3d at 1024 (holding that “if the material copied was derived from a copyrighted underlying work, this will constitute an infringement of such work regardless of whether the defendant copied directly from the underlying work, or indirectly via the derivative work” (quoting 1 Nimmer on Copyright § 3.05 (Matthew Bender, Rev. Ed.))). Therefore, the author of the original work “is entitled to sue a third party who makes an unauthorized copy of [a] . . . derivative work to the extent that the material copied derived from the underlying work.” Id. Under this framework, Lippitt can sue McConnell for copying elements of the chart presented by the Auburn School District to the extent that the Auburn School District chart infringed on elements of the Aligning For Success chart and McConnell copied those elements. However, the jury instruction directed that so long as McConnell “did not copy” the Aligning for Success chart directly, then his chart was “an independent creation” even if McConnell copied elements from the Auburn School District chart that were derived from the Aligning For Success chart. This incorrectly stated our Circuit’s law because the instruction prevented the jury from finding that McConnell copied the Aligning for Success chart if McConnell copied work that

F.3d 1111, 1116–17 (9th Cir. 2018), overruled on other grounds by Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc) (stating direct and circumstantial evidence requirements for a copyright infringement claim).

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itself copied the Aligning For Success chart. See id. This error was not harmless because it allowed the jury to find in favor of McConnell even if his chart infringed Lippitt’s copyright in the Aligning for Success chart. See id. REVERSED, VACATED, AND REMANDED.11