Re: Copyright Ownership in Community Property States

On 4/28/99, John Allison <allisonj[_at_]mail.utexas.edu> wrote:
>
> On 4/26/99, Wes Cochran <xpjwc[_at_]ttacs.ttu.edu> wrote:
> >
> > 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.
>
> The longstanding rule in Texas was that income from separate property
> was community property. I just asked an expert in the area, and she
> said that this is still the rule in Texas, except that legislation now
> permits spouses to alter this rule by agreement.

I can only speak about one of the 8 (9, counting Wisconsin) community property jurisdictions, California. In California, the rule is as Wes Cochran believed it to be in Texas (but isn't, according to John Allison's source). Family Code s. 770 restates former Civil Code ss. 5107 & 5108 which make the following the separate property of a married person:

(1) all property owned by the person before marriage

(2) all property acquired by the person after marriage by gift,

    bequest, devise, or descent

(3) rents, issues, and profits of separate property.

Fam. Code s. 771 (continuing former C.C. 5118) makes the earnings and accumulations of a married person living separate and apart from the other spouse) separate property, too.

S. Martin Keleti
COHEN AND COHEN
740 North La Brea Avenue
Los Angeles, CA 90038-3339
(323) 938-5000 (tel)
(323) 936-6354 (fax)
keleti[_at_]manifesto.com

***PLEASE NOTE NEW AREA CODE*** Received on Mon May 03 1999 - 19:49:16 GMT