The Copyright Act's Limit on Post-Mortem Author Rights

A window or widower of a copyright author has certain rights available under the Copyright Act, but these rights may be cutoff depending on which State the copyright author was domiciled in at the time of death. The present Copyright Act, in Section 101, defines an author's widow or widower as the "surviving spouse under the law of the author's domicile at the time of his or her death."

One problem here relates to same-sex married couples. An author's widow or widower does not include a same-sex married spouse if the State in which the author is domiciled at death fails to recognize same-sex marriage.

Of import, the Copyright Act, in Sections 203 and 304, grants the author's widow or widower the termination interest of a deceased author. Since the Copyright Act preempts conflicting common law and State law, Section 301(a), this restricted definition of widow or widower is a big deal.

Legislation was recently introduced in Congress to resolve this issue. Pending bills in the House and Senate would include same-sex spouses in the definition of widow and widower. The pending revision to the Copyright Act would provide that:

An individual is the widow or widower of an author if the courts of the State in which the individual and the author were married (or, if the individual and the author were not married in any State but were validly married in another jurisdiction, the courts of any State) would find that the individual and the author were validly married at the time of the author’s death, whether or not the spouse has later remarried.

It does not appear likely that the pending bills will become enacted in the current lame duck Congress, and it is presently unclear how the makeup of the new Congress in January will impact this issue.