Did you know that authors have an inalienable right to get back their copyrights 35 years after a transfer?  In other words, this year should see Stephen King regain his copyright to The Dead Zone and the estate of William Styron get back Sophie’s Choice.  Just by asking!  Under the termination right of 17 U.S.C. 203, an author may terminate any transfer of a copyright 35 years after the transfer was made. Although many interesting issues revolve around the termination right, one of the juiciest involves whether the termination right constitutes marital property in divorce proceedings.  Smokey Robinson’s ex-wife (they divorced in 1986) thinks so and has filed suit to obtain a portion of any proceeds stemming from copyrights that Smokey regains via the termination right.

Oddly, whether Smokey’s ex- is entitled to any share of the copyrights turns on state marital property law.  Nothing in the Copyright Act provides a clear answer.  By analogy to real property law, however, spouses may have a fairly good argument that they are entitled to a share of newly regained copyrights.  Imagine that Leslie’s father is granted a life estate in Blackacre and Leslie is granted a “remainder” in Blackacre (the right to Blackacre once his father dies).  Since Leslie’s future interest in Blackacre vests at the time of the grant, any marital interest in Blackacre also vests at the time of the grant.  In some states, that vested future interest becomes part of the marital estate subject to the claims of Leslie’s spouse at the time of the grant.  If a state treats the termination right as a vested future indefeasible interest, then it’s likely that the state would find it to be marital property.  The termination right vests at the time of the creation of the copyrighted work, even though the right cannot be exercised for 35 years.  If married at the time of creation, Leslie may find his future interest encumbered by a spousal claim.

We should all live long enough to exercise our termination rights and have such problems!

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