If you register an image as "unpublished" and then find out that the image had been "published" prior to your date of registration, does this invalidate your registration? And if an infringement happens after the date of this registration, where does that leave the photographer with respect to remedies?
According to the U.S. Copyright website it states: Do not use Form CA to correct an error regarding publication when the work was registered as an unpublished work.
Intellectual Property Law Attorney
No, the copyright is not invalidated, but you need to correct the application, as the deposit requirements and the effective period for which the copyright exists are affected. To correct an error in a copyright registration or to expand on the information given in a registration, you need to file a supplementary registration Form CA with the Copyright Office. The information in a supplementary registration augments but does not supersede that contained in the earlier registration.
If an infringement happens after the registration, you are still protected despite the flaws in the original application, and all your statutory remedies still exist.
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Employment / Labor Attorney
I agree with the prior attorney who responded to this question. This is particularly the case in California where the Federal Appellate Court for the Ninth Circuit's decisions apply. They are very liberal in protecting copyrights where there are errors, even when those errors are realized and/or corrected after the infringement occurs.
Not all Circuit Court's are so forgiving.
So, if the infringement happens with or you can get venue here in California, you should be OK. If that is not the case, it may depend heavily on the Circuit the case will take place in.
The Law Office of Joshua A. Burt
The above answer should not be considered and does not constitute legal advice. You should not rely on any of this advice because each case is fact specific and could be subject to different local, state, and federal laws. No attorney-client relationship exists based on this response.
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