I recently wrote about a little-used (or so I thought) section of the Copyright Act, Section 201(e). It is a quirky little section that prohibits involuntary government transfer of copyright in certain cases:
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.
It turns out, this section has also recently come up in the context of divorce. In Berry v. Berry, The divorce court awarded half ownership of the husband’s copyrights to the wife. On appeal, the Supreme Court of Hawai’i held that § 201(e) prohibited the transfer to the spouse of any of the exclusive rights granted by the Copyright Act (i.e., the rights to reproduce, adapt, distribute, perform and display). However, the spouse is entitled to a share of the economic interest in the copyrights. The court compared it to a paycheck:
A paycheck issued by the employer in the name of the employee-spouse alone can be cashed, deposited, or otherwise negotiated only by that spouse; yet, the proceeds of the paycheck, representing earnings of one spouse in community, belong to the community.
The position taken by the Supreme Court of Hawai’i is contrary to a position taken by a California appeals court. In In re Worth, the court held that while the ownership of the copyright originally vests in the author, the copyright thereafter immediately is transferred by operation of California community property law to both spouses. But In re Worth didn’t mention § 201(e) and the Hawai’i court didn’t buy the logic of Worth:
Worth’s holding can only be reconciled with the Copyright Act by concluding that the authoring spouse implicitly consented to transfer of his or her copyright to his or her spouse …. [Further], to preserve Worth’s rationale, Nimmer on Copyright suggests “[c]onstitutionally, … the courts must invoke a presumption, at least sub silentio, that the author-spouse consents to” “sharing author status.” To avoid problems raised by traditional co-ownership [e.g. the right to grant licenses], Nimmer advocates “adding to that presumption a complementary presumption” that the “nonauthor-spouse[ ] consent[s] to ceding full authority over disposition of the copyright to the author-spouse.”
The Hawai’i court chose not to follow the “legal gymnastics” underpinning Worth and instead held that the non-author spouse only has an economic interest in the copyrights, not ownership.
And the case that got me here: In re Shelton, 2013 IL App (5th) 120274 (April 22, 2013) (following Berry v. Berry).
Berry v. Berry, 127 Hawai’i 243, 277 P.3d 968 (May 11, 2012).
In re Worth, 241 Cal. Rptr. 135, 195 Cal. App. 3d 768 (App. Ct. 1987).
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