The Terminator: Where Copyright Meets Marriage Equality

The “Copyright and Marriage Equality Act,” as set forth in S.23 and H.R. 238, was sponsored in the Senate by Sen. Leahy (D-VT) and in the House by Rep. Kilmer (D-WA) right after New Year’s. You might ask what does marriage equality have to do with copyrights? After all, if I’m a songwriter, novelist, photographer or any other creative artist, can’t I make a will and leave my work to whomever I want?

Well yes, and Section 201(d) of the Copyright Act states in part:

The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.

But leaving your life’s work to a loved one assumes that you, the creator, actually own the copyright in that work. And that’s often not the case. To illustrate, let’s assume you’re a songwriter and you wrote both the music and lyrics to a hit tune we’ll call “The Marriage Equality Blues” or “MEB” for short.

To keep the example simple, let’s say you then ink a traditional music publishing deal where you assign the worldwide copyright in MEB to a music publisher, MP, who then owns the work for the life of that copyright, which for works written since 1978 is your life plus 70 years. The songwriter agreement also states that you and MP split the royalties from MEB 50/50. MP’s share covers its overhead, including rent, staff and equipment and hopefully, some profit.

Now, even though you no longer “own” MEB, you can still sign a will leaving your royalties to whomever you want. So what’s the fuss about? It has to do with the provisions of the Copyright Act that deal with terminations of grants, such as your assignment of the copyright in MEB to MP. The rationale behind the termination provisions is that a fledgling artist often lacks the bargaining power and/or knowledge to make a good deal regarding the exploitation of his work. Or in other words, newbie artists (and even mature ones) often get ripped off and deserve a second bite at the apple – but only after they’ve potentially been taken advantage of for 35 years!

Let’s say you made a bad deal assigning your rights in MEB to MP. Assuming you wrote the song in or after 1978, Section 203 of the Copyright Act gives you the right to terminate your assignment of the U.S. copyright in MEB. However, the termination, which will be effective no earlier than 35 years after you signed that bum songwriter contract, must happen during a specified window of time and under certain picayune conditions. There are similar, but not identical provisions under Section 304 of the Copyright Act for pre-1978 works.

Thirty-five years is a long time. So let’s assume that when it comes time to exercise your termination rights, you’re dead. Here’s where “marriage equality” comes into play. Both Sections 203 and 304 provide that where an author (creator) is dead, his termination right is controlled by the author’s “widow or widower” unless there are also children and then the widow owns half of the author’s termination interest.

The problem is that Section 101 of the Copyright Act currently defines “widow or widower” as:

the author’s surviving spouse under the law of the author’s domicile at the time of his or her death, whether or not the spouse has later remarried.

Let’s now assume that your surviving spouse is the same sex as you. Regardless of whatever may be in your will, federal copyright law, including Sections 101 and 203 (or 304), defines who controls your termination rights in MEB. For example, if you and your same-sex spouse were married in Maine, which recognizes the validity of your same-sex union, but at the time of your death you two made your home in Missouri, a state that does not recognize same-sex marriages, then regardless of the validity of your Maine marriage or any attempt to assign your termination rights under your will, your surviving spouse has no statutory termination rights.

The Copyright and Marriage Equality Act would correct this. In somewhat convoluted language, the proposed legislation amends Section 101 to provide that a surviving spouse is the “widow or widower” for purposes of the copyright law if they were married in a state or other jurisdiction that recognizes the validity of that marriage. So your Maine marriage to your same sex partner would be valid for copyright termination purposes, even if you two were living in Missouri at the time of your death. Whatever one thinks of same-sex marriage, policies regarding marriage equality should not be determined by arcane provisions of the Copyright Act.

Please note that, unlike a copyright registration, which is often easy to do without lawyerly assistance, the termination provisions are deliberately difficult to comply with and the complexities of how and when to serve a termination notice and the specific rights you recapture go beyond the scope of this article.

Finally, as with the proposed Songwriter Equity Act, it’s not likely that this bill will pass the first year it’s introduced. So if you’re in favor of marriage equality you should consider contacting your local Congressman to express your support for this bill.