Of the many things that may cause us to admire an article, one is the author’s identification of a meaningful relationship between fields that had otherwise seemed entirely disparate. In the past year, two pieces—Tony Reese’s Be Careful Where You Die and Brad Greenberg’s DOMA’s Ghost and Copyright Reversionary Interests—identified just such a non-obvious nexus between a popular issue of great social importance (marriage equality) and a relatively obscure topic of great statutory technicality (termination of copyright transfers).
Both of these articles explore issues raised by two of copyright’s distinctive future interest provisions. Descendants of authors whose copyrights vested prior to 1978 are statutorily entitled, under certain conditions, to reversionary interests in those copyrights. And heirs of any authors stand to inherit the inalienable right to terminate transfers established by the Copyright Act of 1976. The trick, in each case, is that the heirs who enjoy these potential future interests—typically, the surviving spouse and children—are determined by statute, regardless of an author’s estate plan or preferences to the contrary.
The marriage equality implications of these provisions that both Greenberg and Reese note is that in a country where some states recognize same-sex marriage and others do not, same-sex partners of authors suffer a relative disadvantage. Since copyright’s future interest provisions tend to defer to state definitions of marriage, the couple’s celebration of a valid union in one state could still mean that the surviving partner would not be recognized as a “spouse” depending on the state of the other’s death.
Of course, after the Supreme Court’s decision in Obergefell v. Hodges, we no longer live in such a country. The Court’s eliminates many of the immediately pressing social concerns raised by both authors. (Though it does not, as Reese observes, eliminate them all. Same-sex marriage remains unrecognized in many foreign jurisdictions, so should a couple be domiciliaries of a nation that does not recognize their union, they may remain subject to unequal treatment.)
And while one might think that Obergefell brings down the curtain on the problems identified by Reese and Greenberg, a deeper look shows just the opposite: The marriage equality issue is just one valence of copyright’s largely unexplored family law. The Copyright Act’s future interest provisions privilege a particular view of traditional marital and family structures that operate to the detriment of any author, regardless of sexual orientation, who does not adhere to those traditional norms.
Copyright’s familial structures work well for those who are in happy, traditional nuclear families. If you have an opposite-sex spouse and some kids, and you want them and only them to get your copyright-related future interests (e.g., termination rights or reversionary interests), the statute locks in that preference. But if you are not a member of a traditional nuclear family, securing these interests for those you care about is more complicated. These difficulties may no longer disproportionately burden same-sex couples, but it still works to the detriment of, say, authors who are in committed opposite-sex relationships that have not been memorialized by state-sanctioned marriage. Authors who simply choose not to pursue romantic relationships at all would similarly find themselves at a relative disadvantage, while copyright’s familial assumptions are simply incoherent as applied to the polyamorous (the Act’s use of “surviving spouse” is conspicuously singular). Copyright’s presumptions about family and author preferences may also work to the detriment of authors’ interests even when the author does fit into social norms about matrimony and reproduction. If you have a miscreant kid whom you don’t trust to take care of his part of your literary estate, or a beloved niece who you want to take charge of your literary estate, you’re out of luck: The Copyright Act entitles all an author’s children to a share of her reversion copyright or termination rights (and excludes more distant blood relations), regardless of whether that descendant is included in or disinherited by the author’s will.
Yet as Reese notes in the normative section of Be Careful Where You Die, it’s easier to point out these problems than to remedy them. The whole point of including family-friendly statutory overrides of an author’s testamentary intent was to make sure that the purpose of copyright termination and reversion was not undermined by having authors just devise their future interests to assignees and licensees. This is the bigger issue that is signaled in, but not resolved by, both articles: Does rendering an author’s posthumous rights inalienable requires picking some individuals who will benefit from those rights? Or is there some other statutory structure that would maintain inalienability without disadvantaging authors who do not adhere to a standard hetero- and repro-normative lifestyle?
Like all good work, Anthony Reese’s Be Careful When You Die and Brad Greenberg’s DOMA’s Ghost push readers to ask hard questions that lack easy answers. I was first drawn to these pieces by the novelty of their core insights about the rarely examined nexus between marriage equality and termination of copyright transfers. But Reese’s and Greenberg’s thoughtful analyses do more than just call attention to a doctrinal issue that has been largely (if not entirely) resolved by Obergefell. By shining a light on the underexplored assumptions animating the Copyright Act’s provisions instantiating and privileging a particular vision of the family, both articles open the door to investigations of the entanglement of copyright and family law beyond marriage equality.