The Copyright and Marriage Equality Act
Ivan Hoffman, B.A., J.D.
A bill was introduced in a prior Congressional session and has been re-introduced in the 114th Congress with the above title. It deals with the seemingly simple definition of a “widow” or “widower” under federal copyright law.
The current law (17 U.S.C. section 101) provides:
The author’s “widow” or “widower” is 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.
Under the proposed statute, the definition would be changed to:
(a) In General.--Section 101 of title 17, United States Code, is amended by striking the definition of ```widow' or `widower''' and inserting the following:
``An individual is the `widow' or `widower' of an author if the courts of the State in which the individual and the author were married (or, if the individual and the author were not married in any State but were validly married in another jurisdiction, the courts of any State) would find that the individual and the author were validly married at the time of the author's death, whether or not the spouse has later remarried.''
(b) Effective Date.--The amendment made by subsection (a) shall apply with respect to the death of any author that occurs on or after the date of the enactment of this Act.
The ostensible purpose of the amendment is to enable parties married in states which allow same sex marriage to enjoy the benefits of being the “widow” or “widower” of an author of copyrighted works. (Read “Same Sex Marriage: An Act of Law” on my site.) Thus one of the changes is to change the determining law from the state of the author’s domicile (where the author considered his or her home irrespective of where the author might have been living at the time of death) to the state where the marriage took place. This would mean that if the parties were no longer living together at the time of the author’s death and the author had a domicile in a state different than the marriage state but had not been divorced, under the current law, the law of the author’s domicile might not recognize same sex marriages and thus work to defeat the “widow” or “widower’s” claims.
Additionally, it would allow parties who were married in other “jurisdictions” (read “countries”) to enjoy the benefits of that marriage if “any” state would recognize the validity of that marriage. Apparently this last provision would virtually assure applicability of the statute since there are many states that allow same sex marriage.
Why It Matters
There are a number of important issues that attend being the “widow” or “widower” of a copyright author. Among the most important of these relates to the rights of such party to renewal rights and termination of transfer rights under the copyright law. I have written extensively about these issues in terms of the death of an author in the article called “Dying And Copyrights: Frustrating The Deceased’s Wishes” on my site. The within article draws from the “Dying” article but the “Dying” article covers additional issues.
Even assuming that a party is a “widow” or “widower,” all that does is to give that party a seat at the table of further complexity.
Federal copyright law, as set forth in 17 United States Code provides initially, in section 201, that:
(d) Transfer of Ownership. —
(1) 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 of course, the law being what it is, there is more to it than that as regards the issues discussed in this article.
17 USC Section 304 of the copyright law provides which parties are entitled to renew the copyright into the renewal term. This applies to copyrights originally registered before January 1978. As a practical matter, since renewal rights issues apply only to pre-January 1, 1978 copyrights, any renewal terms will of necessity have started no later than December 31, 2005 However, since there are a number of cases that deal with these issues even the above cut off, I will discuss these issues here.
For the sake of this article, the relevant section is below:
(C) In the case of any other copyrighted work, including a contribution by an individual author to a periodical or to a cyclopedic or other composite work —
i. the author of such work, if the author is still living,
ii. the widow, widower, or children of the author, if the author is not living,
iii. the author's executors, if such author, widow, widower, or children are not living, or
iv. the author's next of kin, in the absence of a will of the author, shall be entitled to a renewal and extension of the copyright in such work for a further term of 67 years.
Federal cases interpreting this statute have called the rights of the transferee (in this instance, the party to whom the rights were transferred by any agreement entered into by the author, such as to a music publisher in the case of a musical composition, or a book publisher in the instance of a book, as but examples) in and to the renewal rights, as merely an “expectancy.” Marascalco v. Fantasy, Inc., (1990, CD Cal) 953 F.2d 953, cert. denied (1992) 504 US 931. This has been interpreted to mean that if the author entered into an agreement in which the rights to the renewal copyrights were granted to another party, if the author is alive at the commencement of the renewal period, that grant will be held valid since only the author has the right to the renewal term but that right is subject to the rights of the transferee party as contained in the said transfer agreement. In such an instance, it is likely that the said party to whom the renewal rights were transferred would retain the renewal rights to such copyrights. Accordingly, any bequest of such rights or any rights of any “widow” or “widower” would not be invalidated by the renewal provisions of the copyright law but any legatee of such renewal rights would take subject to the rights of the transferee. In simple language, if the author is alive at the time of renewal, any prior grant of renewal rights to a transferee will remain valid. A “widow” or “widower’s” rights under the copyright law would not work to defeat the transferee’s interest.
However, if the author died prior to the commencement of the renewal period, federal law pre-empts state law including the will and estate plan if in conflict with federal law. That has been the ruling in cases dealing with a testator’s wishes conflicting with the federal law. In Broadcast Music, Inc. vs. Roger Miller Music, Inc., 396 F.3rd 762 (6th Cir, 2005), Roger Miller had bequeathed all his copyright interests solely to his widow but the Court ruled that the widow had to share those interests with Roger Miller’s children. See also Larry Spier, Inc. vs. Bourne Co., 953 F2d 774 (2nd Cir. 1992). If the author died prior to the commencement of the renewal period, the transfer of renewal rights to the original transferee in the agreement referred to above would be ineffective during the renewal period since federal law provides that the widow or widower and the children of the author are the only parties entitled to the renewal rights. (There are other statutory parties if there is no widow/widower or children but let’s not complicate this any further by going into those issues.)
In this instance, the rights of the transferee in the said agreement could be invalidated for the renewal period by the federal statutory successors discussed above and those successors would own the rights to the renewal period in those copyrights. That means that if an author died prior to the onset of the renewal period, the “widow” or “widower” (and children) could defeat the rights of the transferee to those renewal rights.
But as indicated, if the author had children (not necessarily children of the “widow” or “widower,” all the parties have to so share in the author’s interest.
And if the will and estate plan provided that parties other than those set forth in the statute were given those renewal rights, that bequest would be invalidated by the statutory successors since federal copyright law controls. In Saroyan v. William Saroyan Foundation, 675 F. Supp. 843, 844 (S.D.N.Y 1987) the Court ruled that a bequest of renewal rights to a trust was not effective because the testator had died before the renewal rights had vested.
In this scenario, the copyrights that are involved in the estate have first been copyrighted after January 1, 1978 and any transfer agreement with another parties entered into after that date. As to these copyrights, there were no longer any renewal rights involved and copyrights last for the life of the author plus originally 50 and now 70 years.
That said, however, there are provisions that allow for the termination of a transfer made after January 1, 1978. 17 USC Section 203 provides in part:
(a) Conditions for Termination. — In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the following conditions:
(1) In the case of a grant executed by one author, termination of the grant may be effected by that author or, if the author is dead, by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author's termination interest. In the case of a grant executed by two or more authors of a joint work, termination of the grant may be effected by a majority of the authors who executed it; if any of such authors is dead, the termination interest of any such author may be exercised as a unit by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author's interest.
(2) Where an author is dead, his or her termination interest is owned, and may be exercised, as follows:
(A) The widow or widower owns the author's entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author's interest.
(B) The author's surviving children, and the surviving children of any dead child of the author, own the author's entire termination interest unless there is a widow or widower, in which case the ownership of one-half of the author's interest is divided among them.
(C) The rights of the author's children and grandchildren are in all cases divided among them and exercised on a per stirpes basis according to the number of such author's children represented; the share of the children of a dead child in a termination interest can be exercised only by the action of a majority of them.
(D) In the event that the author's widow or widower, children, and grandchildren are not living, the author's executor, administrator, personal representative, or trustee shall own the author's entire termination interest.
(3) Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier.
Thus, under these provisions, various scenarios can arise. For the sake of simplicity for these scenarios, I will again omit a discussion of the other potential statutory successors and posit that the transfer agreement was entered into January 1, 1980 (round numbers are easier to do the arithmetic) and further posit that the 35 year from the date of execution of the grant provision applies and not the 40 years. In such an instance, the right to terminate the transfer exists during a 5 year window commencing January 1, 2015, subject to the notice and other provisions in the statute. Read “Terminations of Transfers” on my site. Click on “Articles About Terminations of Transfers.”
Since this article deals with the rights of the “widow” or “widower,” I will discuss only the issues that might arise when the author has died and leaves a “widow” or “widower.” If the author had survived, only the author owns the termination rights.
In this instance, the widow or widower of the author and children of the author may be able to terminate the said transfer, subject to the notice and other requirements of the statute.
As with the section 304 termination, these rights cannot be given away until they vest in the appropriate party. In section 304 (c) (6) (B) the statute states:
(B) The future rights that will revert upon termination of the grant become vested on the date the notice of termination has been served as provided by clause (4) of this subsection.
In 203 (b) (2), the statute states in part:
(2) The future rights that will revert upon termination of the grant become vested on the date the notice of termination has been served as provided by clause (4) of subsection (a).
Therefore, if the author’s will or estate plan gives the rights to the copyrights to a party other than those set forth in the statute, if the author is alive at the time the notices are filed and served, the author’s rights will have vested and thus the bequest will likely be valid. If the author has died prior to the time the notices are sent, the rights to terminate pass to the statutory successors and thus the bequest in the will and estate plan to parties other than those statutory successors will likely be able to be invalidated by those statutory successors.
Thus as you can see, being a valid “widow” or “widower” is not the end of the matter as concerns the rights of the “author” under the copyright law. It often is merely the start.
Of course, this is still just a bill and not law.
Copyright © 2015 Ivan Hoffman. All Rights Reserved.
This article is not legal advice and is not intended as legal advice. This article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article is based on United States law. You should consult with an attorney familiar with the issues and the laws of your country. This article does not create any attorney client relationship and is not a solicitation.
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