Who Owns the Termination of Transfer Right?

We would like to thank R. Anthony Reese, Chancellor’s Professor of Law at UC Irvine, for contributing the following post.

Head shot of R. Anthony ReeseU.S. copyright law gives an author the right, under certain conditions, to terminate a copyright transfer or license that the author granted decades earlier, as Lydia Lorenโ€™s earlier post explained. This termination right must be exercised within a specific time, and the formal termination process canโ€™t begin until 25 years after the author executes the grant.

Given this long delay, who can terminate if the author dies before the time for termination arrives? The basic answer is fairly straightforward. If the deceased author left only a surviving spouse (whom the statute names as the authorโ€™s โ€œwidow or widowerโ€), then the spouse can exercise the termination right. If the deceased author left only surviving kids, then the kids can exercise the termination right. If the author left a surviving spouse and kids, then the spouse and kids share the termination right. (Other situations are more complicated: if the author left any surviving grandkids of a deceased child, those grandkids get to share in the termination right as well.) Only if the author left no surviving spouse, kids, or grandkids does the authorโ€™s will (or the law of intestate succession) determine who owns the termination right.

This aspect of termination has always created problems for gay and lesbian authors with same-sex partners. Because the termination right belongs to a deceased authorโ€™s โ€œwidow or widower,โ€ copyright law must determine who qualifies as the authorโ€™s spouse. In doing so, copyright law has treated gay and lesbian authors with same-sex partners less favorably than authors with different-sex partners ever since the copyright act first allowed termination in 1978.

The statute defines an authorโ€™s โ€œwidowโ€ or โ€œwidower,โ€ using facially neutral language, as โ€œthe authorโ€™s surviving spouse under the law of the authorโ€™s domicile at the time of his or her death.โ€ 17 U.S.C. ยงย 101. This definition doesnโ€™t expressly distinguish between same-sex and different-sex spouses. In practice, though, in deciding which marriages copyright law will recognize, this definition has always treated authors with same-sex partners unequally, because it incorporates unequal treatment embedded in state law, in federal non-copyright law, and in foreign law.

An authorโ€™s widow or widower for copyright termination purposes is the authorโ€™s surviving spouse under the law of the deceased authorโ€™s domicile. In the U.S., the authorโ€™s place of domicile is generally the state where the author resides. But from 1978 until 2004, no U.S. state allowed same-sex couples to marry. As a result, no same-sex partner of a gay or lesbian author could qualify as a widow or widower entitled to termination rights. (Indeed, before 1998, an author whose partner did not qualify as a surviving spouse could not even designate that partner in the authorโ€™s will as the person who could exercise the termination right.)

In May 2004, Massachusetts became the first U.S. state to allow same-sex couples to marry. But even then the same-sex spouse of an author who died domiciled in Massachusetts couldnโ€™t exercise copyrightโ€™s termination right. The so-called โ€œDefense of Marriage Actโ€ (DOMA), enacted by Congress in 1996, provided that the word โ€œspouseโ€ as used in any act of Congress โ€œrefers only to a person of the opposite sex who is a husband or a wife.โ€ 1 U.S.C. ยงย 7. So even if a Massachusetts author had married her same-sex partner in that state, and died domiciled there, the authorโ€™s surviving wife wouldnโ€™t qualify as her widow for copyright purposes because DOMA required reading the word โ€œspouseโ€ in the Copyright Actโ€™s definition to exclude the deceased authorโ€™s wife.

In 2013, in Windsor v. United States, the Supreme Court struck down this part of DOMA as unconstitutional. For the first time, a deceased authorโ€™s surviving same-sex spouse could qualify under the Copyright Act as a widow or widower. But copyright law still didnโ€™t treat same-sex couples equally. Remember that copyright law looks to the law of the place where the author was domiciled at the time of death to identify the authorโ€™s surviving spouse. If a Massachusetts author married her same-sex partner in that state and died domiciled there, the authorโ€™s wife would qualify as the authorโ€™s widow. But what if the married couple had later moved to, for example, Georgia, (or any of the many states that wouldnโ€™t recognize the marriage of two women)? Then the law of the deceased authorโ€™s domicile wouldnโ€™t recognize the authorโ€™s wife as her surviving spouse, and therefore the authorโ€™s wife wouldnโ€™t be the authorโ€™s widow under copyright law. As a result, an author who wanted her same-sex spouse to enjoy the termination right after the authorโ€™s death had to be careful where she lived when she died: if she died domiciled in a state that didnโ€™t recognize her marriage, then copyright law wouldnโ€™t recognize her surviving spouse as her widow.

In 2015, in Obergefell v. Hodges, the Supreme Court ruled that all U.S. states must allow same-sex couples to marry and must recognize marriages of same-sex couples entered into in other states. As a result, within the United States, gay and lesbian authors and their same-sex spouses should now be treated equally for copyright purposes. Wherever the couple was married, and whichever state the author was domiciled in at death, the authorโ€™s surviving wife or husband should be recognized as the authorโ€™s surviving spouse under state law and therefore as the authorโ€™s widow or widower under copyright law.

Even after the Supreme Courtโ€™s landmark marriage equality decisions, though, gay and lesbian authors with same-sex spouses apparently still have to be careful where they live when they die if they want their spouse to exercise the termination right. While every U.S. state must now recognize marriages between same-sex couples, many foreign nations still do not recognize those marriages. If an author married to a same-sex spouse dies domiciled in one of those countries, the Copyright Act seems to dictate that the surviving spouse will not be recognized as the authorโ€™s widow or widower because the law of the authorโ€™s domicile doesnโ€™t recognize the authorโ€™s husband or wife as the authorโ€™s surviving spouse.

This rule will likely affect relatively few U.S. authors with same-sex spousesโ€”only those who live in one of the many countries that donโ€™t recognize their marriages. But the rule will have a much greater effect on those countriesโ€™ own gay and lesbian authors. Those authors might go abroad to marry a same-sex spouse. But if the couple returns home to live in their own country, which doesnโ€™t recognize their marriage, and if the author dies domiciled there, then U.S. copyright law apparently wonโ€™t recognize the authorโ€™s surviving wife or husband as the authorโ€™s widow or widower entitled to terminate any grant of U.S. copyright rights that the author had made. (As a practical matter, an author in this situation can make a will directing that the authorโ€™s spouse should exercise the termination right after the authorโ€™s death, but only if the author does not have any surviving kids or grandkids.)

The language of the proposed Copyright and Marriage Equality Act, introduced in the last two Congresses, would have addressed this remaining inequality. But the bills were not enacted and have not been introduced in the current Congress. So for now, despite the progress toward marriage equality, copyright lawโ€™s unequal treatment remains in place for authors who live in most countries in the world.


Professor Reese specializes in copyright law, trademark law, and Internet aspects of intellectual property law. His article, Be Careful Where You Live and Die: Termination of Copyright Transfers and the Road to Marriage Equality, discusses the issues raised in this post in more detail. Prior to joining the faculty at UCI, Reese spent 10 years as a law professor at The University of Texas at Austin.ย  He has been a visiting professor at Stanford Law School and at NYU School of Law, and has taught copyright law in several international programs.

 


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