Re: Copyright Ownership in Community Property States

On 4/23/1999, Vance R. Koven <vrkoven[_at_]world.std.com> wrote:
>
> My second reaction is that (possibly excluding Louisiana) divorce laws
> are normally a matter of equity jurisdiction anyway, so that imposing
> an equitable servitude on the economic benefit of a copyright, or even
> a usufruct, would not conflict with the technical ownership provisions
> of the Copyright Act. Therefore, even if Rodrigue turns out to have
> been correctly decided, it may have little practical significance even
> in community property states.
>
> Obviously, I'm just talking through my hat here, since I'm not admitted
> in any community property jurisdiction.

I disagree that Rodrigue, if upheld, will have little practical significance, though maybe the problem will be more acute in Texas. The general principle of community property is that each spouse has an undivided one-half interest in property acquired during the marriage, with some exceptions. Inherited property, for example, is the separate property of the receiving spouse, and I believe that Texas at least keeps income generated from separate property as separate property as well. By analogy, if the copyright is separate property as Rodrigue indicates, then royalties for the works would also be separate property. Thus, a judge could not award any royalties to the non-creating spouse.

Alimony might help solve the inequity, as I know that some community property states also have alimony. Texas, however, has very limited "spousal support" provisions. A spouse must have been a homemaker for more than 10 years and meet other requirements. And then, support can last for no more than 3 years and must be aimed at enabling the spouse to become self-supporting. Awarding support based simply on the size of the other spouse's separate property would be suspect, I believe.

J. Wesley Cochran
Professor of Law
Texas Tech University
xpjwc[_at_]ttacs.ttu.edu Received on Mon Apr 26 1999 - 14:28:30 GMT