## Copyright basics for South Dakota creators and businesses Copyright is **federal law** — there's no separate South Dakota copyright. The U.S. Copyright Office (a division of the Library of Congress) handles registration, and federal district courts (NOT state courts) hear infringement cases. ### Federal courts covering South Dakota U.S. District Court for the District of South Dakota. ## What copyright protects **Copyrightable subject matter:** - **Literary works** — books, articles, software code - **Musical works** — compositions and lyrics - **Sound recordings** — separate copyright from the underlying composition - **Dramatic works** — plays, screenplays - **Choreographic works** - **Pictorial / graphic / sculptural works** — paintings, photos, drawings, sculptures, graphic design - **Motion pictures and audiovisual works** - **Architectural works** — building designs **NOT copyrightable:** - **Ideas, facts, methods, procedures** (these may be patentable, but not copyrightable) - **Names, titles, short phrases, slogans** (may be trademarkable) - **Government works** (federal; state varies) - **Works in the public domain** - **Recipes** as lists of ingredients (though the descriptive text may be) - **Common knowledge / standard formats** ## When copyright attaches Copyright attaches **automatically** the moment an original work is fixed in a tangible medium of expression. No registration required for protection to exist. BUT — registration is required for major benefits: - **Federal lawsuit** — must register before filing infringement suit (or for foreign works, registration deemed accomplished) - **Statutory damages** — $750-$30,000 per work; up to $150,000 for willful infringement (only available if registered before infringement or within 3 months of publication) - **Attorney's fees** — fee-shifting only available if registered timely - **Public record** — establishes ownership and creation date Registration is cheap ($45-$65 typical for online filing) and the benefits are massive. ## Duration **Works created on or after January 1, 1978:** - **Individual author** — life + 70 years - **Joint authors** — life of last surviving + 70 years - **Work made for hire** — 95 years from publication or 120 years from creation, whichever is shorter **Older works** follow different (more complicated) rules under prior versions of the Copyright Act. ## Work-made-for-hire Two ways a work can be "made for hire": 1. **Created by employee within scope of employment** — employer owns by default 2. **Specially commissioned** — only for 9 specific categories (audiovisual works, translations, instructional texts, tests, atlases, supplementary works, compilations, supplementary contributions to collective works, sound recordings) AND with a written WMFH agreement signed BEFORE creation Otherwise, the creator owns the copyright — even if commissioned and paid for the work. Get a written assignment if you want to own a contractor's work. ## Copyright registration process 1. **Decide what to register** — single work, group of works, or collective work 2. **File application online at copyright.gov** — eCO system 3. **Pay filing fee** — $45 (single author / single work / not WMFH) or $65 (other) 4. **Submit deposit copy** — copy of the work 5. **Wait** — currently 3-12 months for processing 6. **Receive certificate** with registration number Registration is effective the date the application is properly received. ## Infringement **Direct infringement** requires: 1. Plaintiff owns valid copyright 2. Defendant copied protected expression 3. Substantial similarity **Secondary liability:** - **Contributory infringement** — knowingly inducing or materially contributing to infringement - **Vicarious infringement** — having the right and ability to control the infringer + financial benefit ## Defenses to infringement - **Fair use** — 4-factor test under § 107: purpose and character of use, nature of work, amount used, market effect - **Independent creation** — created without copying - **License or permission** - **Public domain** - **No protectable expression** — uncopyrightable elements - **First-sale doctrine** — owner of a particular copy can sell or distribute it - **Statute of limitations** — 3 years for civil claims; 5 years for criminal ## Damages - **Actual damages** — the plaintiff's losses + defendant's profits attributable to infringement - **Statutory damages** — $750-$30,000 per work; up to $150,000 for willful infringement - **Attorney's fees** (for prevailing parties when timely registered) - **Costs** - **Injunctive relief** — court order stopping infringement ## Common copyright issues - **Online photo / image use** — pulling images from Google without licensing - **Music sampling** — even small samples need licensing for both composition AND sound recording - **Software / code copying** — open-source license compliance, code reuse from prior employers - **Cover songs** — performance vs recording rights - **YouTube / TikTok content** — DMCA takedowns and ContentID - **Architectural works** — photographing buildings (generally OK from public; reproducing plans is different) - **Tattoo art** — artist may retain rights even after putting art on someone's skin ## DMCA — Digital Millennium Copyright Act **§ 512 safe harbor** lets online service providers avoid liability for user-posted infringing content if they: - Designate an agent for takedown notices - Respond to takedown notices - Have a repeat-infringer policy - Lack actual knowledge of infringement DMCA takedowns are how most online infringement is handled — much faster and cheaper than litigation. ## What you should do If you create copyrightable work — register it. The cost is low and the benefits are enormous if infringement happens. If you've been accused of infringement (received a cease-and-desist or DMCA takedown), don't ignore it but don't panic either — many claims are weak or overreaching. Talk to an IP attorney who handles South Dakota federal court cases. Most IP attorneys offer paid initial consultations. --- *This guide is general information about U.S. federal copyright law as of early 2026 and is not legal advice. Copyright law has many edge cases (compulsory licenses, work-for-hire, joint authorship, fair use, parodies). Talk to a licensed copyright attorney about your specific situation.*