If I Fail to List the Date of 1st Publication, Does That Invalidate the Registration Even if They Get Their Certificate in the Mail?
Full Question: A fellow photographer debated with me that there is no such thing as the “epilot” program governing electronic registration of a group of published photographs that were published on various dates. He just has his assistant upload as many small JPEGs as possible, up to the file size limit. Sounds like the procedure for registering a collection of unpublished images, and the filenames/titles are not entered into the contents title fields so nothing specific appears on the application. I was told by a USCO examiner as part of the epilot program that I had to copy and paste filenames/titles and the exact date of publication of each image onto the contents title fields (not just in the border of the deposit copy), up to 325 characters with spaces for each field. It takes forever but that is what they assured me was necessary. So if a photographer fails to list the date of first publication or other information as required, does that potentially invalidate the registration even if they get their certificate in the mail?
Answer: The “epilot” program for registering a group of published photographs was eliminated effective February 20, 2018, which is the date that the new group registration of published photographs went into effect.
For works registered under the epilot program, it is difficult to generalize about whether a mistake or error in the application will invalidate the registration. If the mistake was inadvertent and does not have any relevance to the claim in an infringement suit, a court may find that the mistake is immaterial to the suit. However, section 411 of the Copyright Act requires that in any case where the certificate of registration contains inaccurate information knowingly included by the applicant, the court must ask the Register of Copyrights whether the inaccurate information, if known, would have led the Register to refuse registration.
To eliminate uncertainty when a creator or copyright owner is aware of inaccurate information in a certificate of registration, it would be prudent to correct any such inaccuracies by filing a Supplementary Registration.
Rob Kasunic, Director of Registration Policy and Practices at the U.S. Copyright Office.