Copyright law protects the creative works of authors, artists, musicians, filmmakers, and other creators. In the United States, federal law primarily governs copyright law, while state law can play a role in areas such as enforcement, rights of publicity, and certain types of local disputes. South Carolina follows federal copyright law, and in some cases, specific provisions apply at the state level. This brief guide explores copyright law as it applies in South Carolina, covering key aspects under both state and federal law, including relevant statutes and case law. It may help you determine whether you need to seek legal advice from a copyright lawyer or attorney. I offer a low-cost 1-hour initial telephone consultation for $45.00.
1. Overview of Copyright Law
Copyright law gives creators exclusive rights to their works, preventing others from copying, distributing, performing, or otherwise using those works without permission. The rights granted under copyright are intended to incentivize creativity by giving creators control over the use of their work.
Under federal law, copyright protection is available for a broad range of works, including:
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- Literary works
- Musical works
- Dramatic works
- Pictorial, graphic, and sculptural works
- Motion pictures and other audiovisual works
- Sound recordings
- Architectural works
2. Federal Copyright Law
2.1. The Copyright Act of 1976 (17 U.S.C. §§ 101–810)
The Copyright Act of 1976 is the primary source of federal copyright law in the United States. It establishes the framework for copyright protection and provides the exclusive rights to authors. Key provisions of the Act include:
Creation of Copyright: Copyright protection is automatic once an original work is fixed in a tangible medium of expression (such as written on paper, recorded on a computer, or captured on film).
17 U.S.C. § 102: The work must be original, creative, and fixed in a tangible medium to qualify for copyright protection.
Duration of Copyright: The term of protection depends on the date of creation and whether the work was created by an individual or a corporation.
For works created on or after January 1, 1978, the term is the life of the author plus 70 years. If the work has multiple authors, the term is the life of the last surviving author plus 70 years.
For works created for hire, anonymous works, or pseudonymous works, the term lasts 95 years from the date of first publication or 120 years from the date of creation, whichever is shorter.
Businesses often pay close attention to works created for hire, where the law considers the employer—not the employee—the author. Section 101 of the Copyright Act defines a “work made for hire” as either a work that an employee creates within the scope of their employment, or a work that an independent contractor creates under a written agreement—signed by both parties—that designates the work as a work made for hire.
Exclusive Rights of Copyright Holders: The copyright holder has exclusive rights to:
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- Reproduce the work
- Prepare derivative works
- Distribute copies of the work to the public
- Perform the work publicly
- Display the work publicly
For sound recordings, the right to perform the work publicly through digital audio transmission.
Fair Use: The fair use doctrine allows limited use of copyrighted material without permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. The factors considered in determining whether a use qualifies as fair include:
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- The purpose and character of the use (commercial vs. non-commercial)
- The nature of the copyrighted work
- The amount and substantiality of the portion used
- The effect of the use on the market for the original work
2.2. Registration of Copyrights (17 U.S.C. § 408)
Although registration is not required for copyright protection, registering a work with the U.S. Copyright Office provides several benefits, including:
Public notice of the copyright claim
The ability to bring a lawsuit in federal court for infringement
Eligibility for statutory damages and attorneys’ fees in case of infringement
To register a copyright, an author must submit a completed copyright application, a copy of the work, and a registration fee to the U.S. Copyright Office.
2.3. Infringement and Enforcement
Infringement: Copyright infringement occurs when someone violates one or more of the exclusive rights granted to the copyright holder. Common examples include unauthorized copying, distribution, or performance of a copyrighted work.
Remedies for Infringement: Under federal law, copyright holders can seek:
Actual damages and profits, or statutory damages (up to $150,000 per work if the infringement is willful)
Injunctive relief to prevent further infringement
Attorney’s fees and court costs
Federal Court Jurisdiction: Copyright disputes are typically heard in federal court, as copyright law is governed by federal law. 17 U.S.C. § 411 requires that a work be registered with the U.S. Copyright Office before a lawsuit for infringement can be filed in court.
3. Copyright Law in South Carolina
While South Carolina law does not have its own distinct body of copyright law, state law may still be relevant in certain situations involving local enforcement, state-level claims, and common law causes of action. These are the most important ways that South Carolina law intersects with copyright law:
3.1. South Carolina State Law and Copyright Infringement
South Carolina’s Application of Federal Copyright Law: South Carolina courts follow federal copyright law as it applies to copyright infringement. Any issues involving infringement, statutory damages, or remedies would be resolved according to the Copyright Act of 1976.
State-Specific Legislation: South Carolina may have specific laws related to trade secrets, right of publicity, or defamation that could affect works protected by copyright or the way copyright claims are litigated in the state. For example, South Carolina’s Trade Secrets Act (S.C. Code Ann. § 39-8-10 et seq.) could intersect with copyright issues if trade secrets are involved.
3.2. Copyright in South Carolina’s Educational and Creative Industries
South Carolina is home to a significant creative economy, with industries like film production, music, visual arts, and publishing thriving in the state. The South Carolina Film Commission (part of the South Carolina Department of Parks, Recreation and Tourism) plays an important role in facilitating the production of films and other media in the state, and these productions often involve copyrighted works.
Film and Media Production: Filmmakers and production companies in South Carolina must ensure they comply with federal copyright laws when using existing works or creating new works for distribution.
Art and Music: South Carolina also has a strong music scene and visual arts community. Artists in the state need to be aware of copyright law as it pertains to the protection of their songs, albums, paintings, and sculptures.
4. Enforcement and Litigation in South Carolina
State Courts: Copyright infringement cases in South Carolina typically fall under federal jurisdiction; however, some aspects of the litigation process, such as contract disputes related to licensing agreements or local claims for unjust enrichment, may be handled in state court.
Attorney General Involvement: The South Carolina Attorney General’s Office may take action in certain cases involving widespread infringement, such as cases of piracy or counterfeit goods being distributed in the state.
5. Special Considerations for Digital Content and Online Infringement
With the rise of the internet, copyright infringement online has become a major concern. South Carolina creators who distribute digital content (e.g., music, videos, software) should be aware of both federal law and the Digital Millennium Copyright Act (DMCA), which provides a safe harbor for internet service providers (ISPs) and website owners if they follow the correct procedures for handling infringing content.
5.1. The Digital Millennium Copyright Act (DMCA)
17 U.S.C. § 512: This act protects internet service providers (ISPs) and other online platforms from liability for infringing content uploaded by users, as long as they follow the proper notice-and-takedown procedures when notified of an infringement. Creators and copyright holders in South Carolina can use the DMCA to protect their works from unauthorized distribution online.
DMCA Takedown Notices: Copyright holders can send DMCA takedown notices to websites or service providers hosting infringing content to request the removal of infringing works.
6. Key Takeaways
Federal law governs copyright protection in South Carolina, and the Copyright Act of 1976 provides creators with exclusive rights to their works.
South Carolina courts apply federal copyright law to resolve disputes involving infringement and enforcement.
Copyright holders can register their works with the U.S. Copyright Office for added legal benefits.
South Carolina’s creative industries, including film, music, and art, must comply with both federal copyright law and applicable state regulations concerning the use of intellectual property.
References
Copyright Act of 1976 (17 U.S.C. §§ 101–810)
U.S. Copyright Office: www.copyright.gov
South Carolina Code of Laws, Title 39 (Trade Secrets)
Digital Millennium Copyright Act (DMCA) (17 U.S.C. § 512)
A copyright, thought of most generally, is simply that, the right to copy. More specifically, the owner of a copyright in a work has the exclusive right to do or authorize the following:
- reproduce the copyrighted work
- prepare derivative works based on the copyrighted work
- distribute copies of the copyrighted work
- publicly perform the work
- publicly display the work (excluding architectural works and sound recordings), and
- in the case of sound recordings, to perform the copyrighted work
- publicly by means of a digital audio transmission
The Copyright Act of 1976 protects “original works of authorship” that authors fix in a tangible form of expression. The law does not require the fixation to be directly perceptible, as long as a machine or device can communicate it. Copyrightable works include the following categories:
- Literary Works
- Musical Works, Including any Accompanying Words
- Dramatic Works, Including any Accompanying Music
- Pantomimes and Choreographic Works
- Pictorial, Graphic, and Sculptural Works
- Motion Pictures and Other Audiovisual Works
- Sound Recordings, and
- Architectural Works
These categories should be viewed broadly. For example, computer programs and most “compilations” may be registered as “literary works”; maps and architectural plans may be registered as “pictorial, graphic, and sculptural works.”
Businesses often pay close attention to works made for hire, where the law considers the employer—not the employee—the author. Section 101 of the Copyright Act defines a “work made for hire” as either a work that an employee creates within the scope of their employment, or a work that an independent contractor creates under a written agreement—signed by both parties—that designates the work as a work made for hire.