DOMA's Ghost and Copyright Reversionary Interests
10 Pages Posted: 24 Aug 2013 Last revised: 20 Mar 2014
Date Written: August 22, 2013
Copyright law typically is not thought of as intertwined with family law. But a major theoretical underpinning of copyright’s incentive system is that an author is motivated not only by the financial reward she hopes to reap during her life but also whatever her family might reap long after her death. And the Supreme Court’s highly anticipated decision in United States v. Windsor complicates this family-incentive theory. Specifically, Windsor undermines Congress’s belief that an author would want her widow to inherit her rights and creates a situation in which federal law and state law too often will recognize different heirs.
This Essay analyzes Windsor’s overlooked copyright implications and argues that Congress should amend the Copyright Act to rely on the law of the state in which the marriage was celebrated. Doing so would add some consistency to copyright law’s family-incentive theory. It also would remove inefficient grants of copyright ownership that fail to motivate authorship because the disposition is contrary to the author’s desires.
NOTE: An earlier version of this essay was published Oct. 2, 2013 in the Northwestern University Law Review Colloquy. It has been updated to reflect subsequent changes in state recognition of same-sex marriage.
Keywords: Copyright, Termination, DOMA, Marriage, Wills, Estate, Choice of Law, Conflicts
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