Love’s Labor’s Lost: Marry for Love, Copyright Work Made-for-Hire, and Alienate at Your Leisure

Abstract

Although only two courts have decided cases involving whether under state law an author-spouse’s copyright is community property, some commentators are treating this question as settled law. There are no cases deciding these issues in non-community property states or under state laws protecting the property interests of cohabiting couples. This article will examine whether state domestic relations laws governing the allocation of copyright interests, including economic rights, are preempted by federal law. Because the articles concludes that under principles of federal preemption, the interests in the author-spouses copyrights are not subject to transfer by operation of state law; this article will then propose conceptualizing the marriage “partnership” as a legal business entity partnership and then explore whether this new business partnership understanding of marriage is consistent with the principles of both business entity law and copyright law. Finally, this article will evaluate whether treating marriage as a legal business partnership may not achieve the goals of community property allocation upon marital dissolution in a manner consistent with the statutory and constitutional purposes of copyright.

Keywords: community property, marriage, copyright, federal preemption, Worth, Rodgique