US v Windsor: Where Family Rights Meet IP Rights

It’s not every day that changes in US family and civil rights laws affect the country’s IP laws.  But that has just occurred in the wake of the United States Supreme Court’s ruling last week that addressed the rights of same sex couples.  In US v. Windsor, the Supreme Court invalidated portions of the federal Defense of Marriage Act that denied federal recognition, and the benefits that would be conferred upon recognition, to same sex couples that legally married in the states or foreign jurisdictions in which they had married.  (Currently, thirteen US states allow same sex couples to marry.) 


Plaintiff Edith Windsor celebrates the
ruling in front of the Supremt Court

The effect of the ruling is that the federal government will be required to confer upon all legally married same-sex couples the same benefits that have been granted to heterosexual married couples.  What does this have to do with IP?  As a result of Windsor, all IP rights owners, regardless of sexual orientation, may now transfer their IP rights to their spouse as an inheritance.  Prior to Windsor, the rights would have skipped the spouse and transferred to an heir with legal recognition.  In the case of copyright ownership, the subject work would possibly become an orphan work if next-of-kin could not be located.

In addition to these benefits, a surviving same-sex spouse will now also be eligible under Section 17 USC 203 of the Copyright Act to terminate a prior transfer or license of the copyrighted work. The statue reads:

(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.

As a result of Windsor, a “widow or widower” will now include surviving same-sex spouses if the couple had legally married in any state or foreign jurisdiction.

From this perspective, the ruling is a win for IP rights by allowing all rights holders to ensure that their IP is able to be exploited by their spouses after their deaths.  [In the words of the AmeriKat, “And we love economic value, don't we?”  This Kat notes that the AmeriKat posted an excellent overview of recent UK studies on Orphan Works yesterday.] 

Says Merpel, couples should probably also think about how the rights would be split or treated upon divorce… especially celebrities.