Wednesday, July 1, 2015

Same Sex Marriage and Copyright Redux

Back in 2013 when the Supreme Court made its DOMA decision, we reviewed the effect it would have on copyright law. At that time we indicated that the primary effect would be that in states where same-sex marriage is legal, the surviving spouse would acquire copyright renewal rights and termination rights. Now that the Supreme Court has held that same-sex marriage, is legal in all states the rule applies across the country. In other words, a surviving spouse will acquire the right to recapture copyright for pre-1978 transfers as well as the right to send and benefit from Notices of Termination.
The effect on copyright contracts. Other than the ability to terminate a transfer after 35 years, the Supreme Court decision should have little effect on contracts signed regarding copyright transfers. In the nine states that have community property laws --Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin -- spouses automatically become joint owners of most types of property acquired during the marriage. California, for example, has held that a copyright acquired by one spouse during marriage is community property—that is, is jointly owned by both spouses. (Marriage of Worth, 195 Cal.App.3d 768, 241 Cal. Rptr. 135 (1987).) This means that if you are married and reside in California (or later move there), any work you have created or will create automatically would be owned jointly by you and your spouse unless you agree otherwise. Therefore, lawyers consider it prudent for both spouses to sign any assignments or exclusive transfers of copyright. (Note a court in Louisiana has held copyrights are not community property in that state. (Rodrigue v. Rodrigue, 50 U.S.P.Q.2d 1278 (E.D. La. 1999).)