DIVORCE AND COPYRIGHT: Getting Back…Or Losing…Rights That You Thought You Lost…Or Had

Ivan Hoffman, B.A., J.D.


       

The matters discussed in this article are speculative.  There are no reported cases to look to which are on “point.”  Moreover, I am writing this article not as an advocate for any point of view or position but to explain.  I leave advocacy for when I have a particular client to represent.

 

Here is the situation:

 

Songwriter, screen writer, director of film or television shows, recording artist, painter, writer or similar creative party (for simplicity in this article, all such creative parties are called “author”) owns rights in and to certain works.  These rights can be rights of copyright or rights in contracts whereby the author relinquished his or her copyright rights in exchange for contract payments such as royalties, fees, advances and the like.  The works can be musical compositions, sound recordings (provided they were first recorded after February 15, 1972), books, works of art, screen plays and similar works.

 

As things would go in this “hypothetical,” the author and his or her spouse get divorced.  (Would that it were only a “hypothetical.”) As part of the divorce contest, the spouse claims rights in those said copyright or contract rights and, pursuant to a property settlement agreement approved by the court, the spouse is granted rights in and to the said copyrights or contract rights. 

 

However, depending upon the facts and circumstances of the given case, the transfer, in the form of the said agreement, by the author of rights in and to the said copyrights or contract rights may be subject to being “taken back” in whole or in part by either the author or the children or subsequent spouse of the author, at least as to the rights of copyright.  And even if the said agreement is not terminable, the rights to terminate transfers that may have been made by the author (or in some instances by others) may be exercised by parties other than the spouse to whom the rights were transferred, operating as a de facto termination of the divorced spouse’s rights at least as  to those agreements.  Whether this is so or not depends upon the operation of the federal copyright law on that transfer to the spouse.  In particular, the said law contains several instances in which those rights may be able to be taken away from the spouse who received those rights in the divorce settlement agreement.

 

These situations are very fact-specific and complex in analysis.  Below are some, but certainly not all, of the examples.  See if any of these fit your or your client’s scenario.

 

Scenario 1.

 

If the copyrights that were transferred were first registered in theUnited States before January 1, 1978, then those copyrights were subject to the “old” copyright law regarding renewal rights.  Before that date, copyrights existed for 2 separate terms: an initial term of 28 years and then a renewal term that previously was also 28 years but, effective January 1, 1978, was extended to 47 years and is now 67 years.  For the sake of simplicity in a very complex situation, I will leave out of this article issues related to the need to file renewal copyright applications for some of these copyrights.

 

So the scenario plays out this way: the divorce settlement covered these “old” copyrights and after the divorce, the renewal terms arose. 

 

17 USC Section 304 of the copyright law provides which parties are entitled to renew the copyright into the renewal term.  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 spouse to whom the rights were transferred by the settlement agreement) in and to the renewal rights, as merely an “expectancy.”  Miller Music Corp. vs. Charles N. Daniels, Inc., 362 U.S. 373 (1960)   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 transfer agreement.  In such an instance, it is likely that the spouse to whom the rights were transferred would retain the renewal rights to such copyrights. 

 

However, if the author died prior to the commencement of the renewal period, federal law pre-empts state law including, presumptively, the divorce settlement agreement approved by the state court.  That has been the ruling in cases dealing with a testator’s wishes conflicting with the federal law.  Broadcast Music, Inc. vs. Roger Miller Music, Inc., 396 F.3rd 762 (6th Cir, 2005); Larry Spier, Inc. vs. Bourne Co., 953 F2d 774 (2nd Cir. 1992).  If that same argument is extended to divorce agreements, that may mean that if the author died prior to the commencement of the renewal period, the transfer of renewal rights to the spouse in the divorce settlement agreement might be ineffective during the renewal period since federal law provides that the children of the author are the only parties entitled to the renewal rights. The spouse who received these copyrights in the settlement agreement is, by definition, not the widow or widower because of the divorce although there may be a new spouse who would thus be the widow/widower if the author and this new spouse were married at the time the author died.   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. 

 

As a practical matter, since renewal rights issues apply only to pre-January 1, 1978 copyrights as indicated above, any renewal terms will of necessity have started no later than December 31, 2005 (i.e. December 31, 1977 is the last date of copyright for “old” copyrights, to which you add 28 years to get the date of the onset of the renewal term).  In Stone vs. Williams (970 F. 2d. 1043), the Court held that a daughter of Hank Williams had the right to claim the renewal rights even though her claim was very late in being presented but she could not recover money for the exploitation of the compositions preceding the 3 year limitations period.  However, in Tomas v Gillespie, 385 F Supp 2d 240, 73 (S.D.N.Y. 2005), the Court barred the action to assert renewal rights because those rights arose beyond the 3 year statute of limitations.

 

Scenario 2.

 

This scenario also deals with “old” copyrights, i.e. those registered before January 1, 1978.  Even if the author was alive at the time of the commencement of the renewal period, the transfer represented by the settlement agreement may still be terminable under a given set of circumstances.  This is the “second bite at the apple.”  The first of these circumstances is if the settlement agreement was executed before January 1, 1978.

 

The same section of the copyright law further provides in part as follows:

 

 

(c) Termination of Transfers and Licenses Covering Extended Renewal Term. In the case of any copyright subsisting in either its first or renewal term on January 1, 1978, other than a copyright in a work made for hire, the exclusive or nonexclusive grant of a transfer or license of the renewal copyright or any right under it, executed before January 1, 1978, by any of the persons designated by subsection (a)(1)(C) of this section, otherwise than by will, is subject to termination under the following conditions:

 

(1) In the case of a grant executed by a person or persons other than the author, termination of the grant may be effected by the surviving person or persons who executed it. In the case of a grant executed by one or more of the authors of the work, termination of the grant may be effected, to the extent of a particular author's share in the ownership of the renewal copyright, by the author who executed it or, if such 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.

 

(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 fifty-six years from the date copyright was originally secured, or beginning on January 1, 1978, whichever is later.

 

What the above sections mean is that, at a time commencing 56 years from the date of the original copyright (in this example, 56 years from January 1, 1978 is not relevant) and during a 5 year window commencing at that time, the transfer to the divorced spouse may be subject to being terminated by the author if the author is alive or, if the author is deceased, by the children of the author (again, the original transferee is by definition not the spouse, although there may be a new spouse who would then be the widow or widower if the parties were married at the time the author died).

 

So let me give an example.  Copyrights in 1960 and, as part of the divorce agreement, the author’s copyrights are transferred to the spouse.  56 years from 1960 is 2016.  During a 5 year window commencing on the date of the respective copyrights in 2016, it is possible that the author, if the author is still alive or if not alive, the author’s children and widow/widower, may be able to terminate the transfer to the original spouse.  (What seems likely is that those parties can terminate the grant to other parties the author made, to the exclusion of the divorced spouse.)  Appropriate notice must be given no later than 2 years nor earlier than 10 years prior to the effective date of termination.

 

Again, for simplicity sake, I have not discussed the other potential parties who may be statutory successors.

 

Further, the statute provides that no agreement, including possibly a divorce settlement agreement, that purports to give up these rights, is likely to be held valid.  Section 304 goes on to state:

 

(5) Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant.

 

Scenario 3.

 

In this scenario, the copyrights that are involved in the divorce settlement have first been copyrighted after January 1, 1978.   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 and among these scenarios are below.  For the sake of simplicity for these scenarios, I will again omit a discussion of the other potential statutory successors and posit that a settlement 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.  Two sub-scenarios may apply:

 

  1. If the author is alive at the time of 35 years from the January 1, 1980 settlement agreement.

In this instance, the author may be able to terminate the transfer, subject to the notice and other requirements of the statute.

 

  1. If the author is not alive at the time of 35 years from January 1, 1980 settlement agreement.

In this instance, the children of the author (again, the transferee spouse is not the widow or widower but there may be a new spouse who is the widow or widower if the parties were married at the time the author died) may be able to terminate the 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.

 

As you will note, in both sections, the “transfer” needs to have been “executed.”  If there was no marital settlement agreement per se and the transfer took place via court judgment, then perhaps there is no agreement to terminate.  If the court judgment merged all the provisions of the agreement, perhaps there is no agreement to terminate.   There may be other reasons why the divorce agreement itself may not be terminable.  But again, even if the divorce settlement agreement is not in itself terminable, to the extent that parties other than the divorced spouse have termination rights, any agreements that the author (or in some instances other parties) entered into regarding copyright rights could be terminated only by those parties and since the divorced spouse is not one of those parties, this can have the effect of terminating the divorced spouse’s rights in those agreements.

 

Who Gets What Share?

 

The provisions in section 304 (governing pre-1978 agreements) are unclear as to who gets what share of any renewal rights.  Again, the issues related to renewal rights may not be applicable to very many situations as of now but I will discuss these issues briefly anyway.

 

Section 304 (a) does not contain any express language allocating how the shares (assuming the author has died at the time of renewal) are to be allocated.   However, section 304 (c) states that, as to termination rights, the widow gets 50% and the other 50% is to be divided among the children on a per stirpes basis with any children of a deceased child of the author stepping into the position of their deceased parent.  In Broadcast Music, Inc. vs. Roger Miller Music, Inc., 396 F. 3d. 762 (6th Cir. 2005), supra, the Court held that the 50% to the widow and 50% to the children collectively rule (as in 304 (c)) applies.  This issue has not yet been decided by other circuits and, given the time issues about “renewal” rights, this issue may remain clouded.

 

Community Property Issues

 

Assuming that copyrights and rights of copyright are community property (but see discussion below) , then overarching the above issues are issues related to the rights of the spouse in the community property that are the copyrights or the agreements related to the copyrights.  And in this regard, the question is whether the federal copyright law pre-empts state laws dealing with community property under the Supremacy Clause of the Constitution (Article VI, Clause 2).  And in the latter regard, the question is whether these community property issues are actually issues subsumed under the copyright law.  So if you think the above issues are complicated, wait until you read about these community property issues.

 

The initial question is whether these community property issues are actually issues subsumed under the copyright law.  Section 301 of the copyright law provides in part:

 

§ 301. Preemption with respect to other laws

 

(a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.

 

In Hisquierdo vs. Hisquierdo (439 U.S. 572 (1979), the United States Supreme Court stated:

 

The pertinent questions are whether the right as asserted conflicts with the express terms of federal law and whether its consequences sufficiently injure the objectives of the federal program to require nonrecognition. (439 U.S. 572, 583)

 

That case dealt with whether or not a divorced spouse had a community property interest in benefits under the Railroad Retirement Act related to the spouse’s husband having worked for the railroads during the marriage.  The RRA had an express provision stating that the spouse did not have an interest in those benefits under the RRA.  The United States Supreme Court ruled that because of that express exclusion which represents a clear intent of Congress to exclude a spouse from ownership of the benefits, for the spouse to have such a community property interest would conflict with federal law and thus the community property laws did not apply and the widow had no interest as community property.  This case, however, dealt with that particular provision in the RRA whereas the copyright law in regard to renewal and termination issues not only does not exclude the widow/widower but in fact expressly includes the widow/widower.  Therefore, because there are “2 laws” which deal with a widow/widower’s rights (copyright and community property laws), is there a conflict and if so, which law controls?

 

Rodrigue vs. Rodrigue (55 F.S.2d 534 (E. District La. 1999) is very instructive but not determinative since it is not a renewal/termination case.  See discussion below about the appellate version of this case.  The issue was whether certain “themes” used by the husband in his paintings after the divorce were also community property and whether the wife was a co-owner of all rights therein (as derivative works) under section 201 (d) of the Copyright Act (quoted above).  The Court summarized the claims as follows:

 

George asserts that there is an irreconcilable conflict between copyright law and community property law with respect to both initial vesting of the copyright and any alleged transfer, and therefore Louisiana community property law is preempted by federal copyright law. George contends that after the copyrights vested in him initially under federal law, there was no subsequent transfer of the copyrights, or any interest in them, to Veronica because: (1) no provision of Louisiana community property law authorizes such a transfer; and (2) such an involuntary transfer is prohibited by 17 U.S.C. § 201(e). Veronica contends that the application of community property law does not pose any conflict with federal copyright law because federal law contemplates that, after vesting initially in the author, copyrights can be transferred by operation of law, and because application of community property law does not stand as an obstacle to the purposes of federal copyright law.

 

The Court went on:

 

Historically, however, all legal issues relating to families have been the exclusive province of state law not federal law. Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 808, 59 L.Ed.2d 1 (1979). When there is conflict between state family law and federal law, state law is not lightly set aside. Id. Preemption of state law may be necessary when Congress has positively required preemption by direct enactment. Id. However, a "mere conflict in words" between federal law and state family and family property law is not sufficient grounds for overturning state law. Id. Rather, "family property law must do `major damage' to `clear and substantial' federal interests" before state law is overridden. Id. Under the test described in Hisquierdo, in order for federal law to preempt state family law, (1) there must be some sort of express conflict between the two; and (2) the state law must do "major damage" to "clear and substantial" federal interests. Id.

 

The Court continued:

 

On its face, § 301 [see above] does not expressly preempt community property law because community property law does not necessarily purport to provide rights "equivalent" to those specified by the Act. However, there are specific areas of potential conflict between the Act and Louisiana community property law that result in preemption.

 

And:

 

"Copyright in a work created on or after January 1, 1978 subsists from its creation ...." 17 U.S.C. 302(a). A work is "created" when it is "fixed in a copy ... for the first time ... [W]here a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work." 17 U.S.C. § 101. A copyright comes into existence as soon as an "original"[8]work is "fixed in any tangible medium of expression" (as opposed to a not-yet-manifested idea that is not copyrightable). 17 U.S.C. § 102. Consequently, a copyright attaches in favor of the author at each step of creation — each word, musical note or brush stroke — from the first expression of the work. Ownership cannot vest simultaneously in both the author alone and in the community. Community property law may not defeat the clearly expressed intention of Congress by attributing copyright ownership to a nonauthor at the time of creation. Any community property ownership provision, such as Article 2338, that permits copyright ownership to vest initially in anyone other than the author is therefore preempted.[9]This view is consistent with the Constitutional provision allowing "to Authors ... the exclusive Right ...." Article 2338 not only literally conflicts with the Act (under part one of the Hisquierdo test), it does major damage to the substantial federal interest in providing exclusive rights to authors. Consequently, a copyright is separate property of the author spouse upon its creation.[10] [emphasis added]

 

The wife argued that the copyright law allows for the transfer “by operation of law”  and that this was the rationale used by the California Court of Appeal in In Re: Marriage of Worth, 195 Cal. App. 3rd 768 (1987).

 

So let me discuss the Worth case here before circling back to Rodrigue.

 

In the Worth case, the California Court of Appeal ruled that the copyright in a work created by an author during the term of the marriage was community property and that such community property laws were not pre-empted by federal copyright laws.  The Court ruled that although the initial copyright rests with the author under the copyright law, the same copyright law provides that rights may be transferred “by operation of law” and thus the Court found that the copyright law, by implication, recognized and allowed such community property rights to exist under the copyright law.  Therefore, in such an instance, the spouse’s interest in the said work was already as to an undivided half and accordingly, if the above rights exist (renewal rights or termination of transfer rights), they would likely exist only as to the author’s share of any copyrights transferred to the spouse.  This was not a renewal/termination of transfer case and thus the issues about the statutory successors was not before the Court.

 

But there are issues raised by the Worth decision including those discussed in Rodrigue, among which are:

 

The Copyright Act, section 201 (a), states in part that:

 

Copyright in a work protected under this title vests initially in the author or authors of the work.

 

But California community property laws state in part:

 

Family Code section 760. Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.

 

Family Code section 2550. Except upon the written agreement of the parties, or on oral stipulation of the parties in open court, or as otherwise provided in this division, in a proceeding for dissolution of marriage or for legal separation of the parties, the court shall, either in its judgment of dissolution of the marriage, in its judgment of legal separation of the parties, or at a later time if it expressly reserves jurisdiction to make such a property division, divide the community estate of the parties equally.

 

That would mean that, from the moment of creation in a marriage, any copyrightable work is deemed community property and thus the non-author spouse is entitled to a one-half interest therein.  Although, as indicated above, a transfer of such an interest can take place “by operation of law,” the foundational ownership right under state law appears to be in conflict with federal copyright law. 

 

In Rodrigue, the Court discussed section 201 (e) which states:

 

(e) Involuntary Transfer. — When an individual author's ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title, except as provided under title 11.

 

The Court then analyzed various legal theories dealing with the issue of “involuntary” transfer and concluded that merely because parties are married and reside in a community property “regime” does not constitute a “voluntary transfer.”

 

Moreover, the owner of the rights of copyright (or a given right) is the sole party entitled to exploit the same.  A spouse not the author has no such rights.   However, under state community property law, each party (thus including the non-author party) is entitled to an undivided equal share and that includes the right to exploit the same (subject to accounting to the other party).  That, too, appears to be in conflict.  Could the non-author party make a deal for the exploitation of the copyrights?  (see discussion in Rodrigue at 544-545)

 

The Rodrigue court concluded that this matter was best left to Congress to decide but that the claims of the wife as to a community property interest were in direct conflict with federal law and thus could not stand.

 

 At present, however, the conflict between Louisiana's community property law and the Act is irreconcilable. To deem copyrights to be community property would risk inflicting major damage on the Act's goals of predictability and certainty of copyright ownership, national uniformity, and avoidance of the practical difficulties of determining and enforcing an author's rights under the differing laws of the various states.

 

On appeal, the Fifth Circuit (at 218 F.3d 432 (2000)) agreed with the district court’s analysis of the issues related to conflict between federal and Louisiana state laws but concluded that there were provisions in the state laws that were not in conflict with the copyright laws including that even though the author-husband was the sole owner of all rights in the copyrights and thus the sole party entitled to manage the same, Louisiana state law allowed for the non-author spouse to share in the “economic benefits” from the copyrights.  The Court stated:

 

Notably absent from the Copyright Act's exclusive sub-bundle of five rights is the right to enjoy the earnings and profits of the copyright. Nothing in the copyright law purports to prevent non-preempted rights from being enjoyed by the community during its existence or thereafter by the former spouses in community as co-owners of equal, undivided interests.

 

However, to date no court has decided whether community property survives the renewal or termination of transfer issues under federal law.  Among the many issues involved in this area is whether the said renewal right (and presumptively the termination right) is an expectancy, as the language of the federal cases states (see above or Brown ), or is a contingent interest.  In the case of In Re: Marriage of Brown (15 C. 3d. 838) the California Supreme Court ruled that benefits that had not yet vested were not “expectancies” but “contingent property interests” and thus were community property.   If it is merely an expectancy, then it may not be community property and in such an instance, if the author dies prior to the vesting of the renewal period (or presumptively the termination right), one could argue that the widowed spouse would not be entitled to a community property share of the renewal/termination rights since it was not community property and thus would only be entitled to the statutory successor share which, if there were children of the author, would thus only be as to one half.  Thus there would be no conflict between state and federal law.   On the other hand, if the right in the renewal period/termination rights is not a mere expectancy but a contingent interest, then perhaps it is community property and thus the termination and renewal rights might exist only as to the author’s half.  But that would appear to conflict with federal law since it would provide the widow with 50% as community property and then 50% of the other 50% as a statutory successor (the other 50% of going to the children of the author.

 

In specific reference to the renewal/termination issues, Congress has not been silent on the rights of widows/widowers (and by definition, spouses).   Thus, under the Hisquierdo rationale, perhaps the federal law would pre-empt the state laws in regard to the rights of those parties.

 

There are likely to be other community property issues but as you can see, they would all depend upon a reconciliation of the state and federal laws.

 

The above rights do not apply where the original creation was done as a work made for hire.  17 USC Section 304 (a) (i) (B). (Read “Work Made For Hire Agreements” on my site.  Click on “Articles for Writers and Publishers.”)  In such an instance, all rights including all renewal rights, belong solely to the party commissioning the work made for hire.  So, for example, if a film director did his or her work as a work made for hire, which is common in the film and television industries, the renewal rights and termination of transfer issues do not arise insofar as the relationship between the creator and the said commissioning party.  The commissioning party is deemed the “author” of the work and thus the above rights do not apply to the creative party.

 

Why Have These Issues Not Yet Arisen?

 

There may be some explanations for the reason the courts are not flooded with these matters.

 

In addition to the explanation that settlement agreements and decrees may not have been properly prepared and no one is yet aware of the issues, there is an additional explanation.  Due to the long times involved in the termination of transfer provisions, the rights have not yet arisen or the parties that now possess those rights may not be aware of them since they were not parties to the original transaction.  For example, as indicated above, the termination of transfer provisions for pre-January 1, 1978 copyrights do not arise for 56 years from the date of the original copyright.    For post-January 1, 1978 agreements, the rights do not arise until at least 2013.

 

Conclusion

 

As you might expect, all this is extremely fact-specific and a detailed analysis is required in each instance to see whether any rights exist.  In the end, as the Rodrigue court suggests, this will likely have to be resolved by Congress.  Keep in mind that all this is quite speculative since much of the copyright law in regard to these matters has not been tested in the courts.

 

Consult an experienced intellectual property attorney as well as a divorce attorney about these matters.

 

Copyright © 2009, 2012 Ivan Hoffman.  All Rights Reserved.

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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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No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.


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