Carol Lay Discovers Community Property Includes Intellectual Property

There are several states in the United States that have “community property” laws. In these states, generally, all property acquired during a marriage is the “community property” of the marriage. This doesn’t actually mean much legally unless a couple gets divorced and property must be divided.

Federal copyright law gives the creator legal rights in their creation. States with community property laws (this chart lists those states) have had to decide whether the author’s copyright under federal law means that person retains an individual ownership right in their creations or whether material created during a marriage leads to the copyright being “community property.”

In California, as Carol Lay discovered, upon getting a divorce, community property law trumps federal copyright law. In Louisiana community property also trumps but there is a more nuanced approach. A recent case, Rodrigue v. Rodrigue, held that:

The author-spouse in whom copyright vests maintains exclusive managerial control of copyright but, under Louisiana law, economic benefits of copyrighted work belong to the community while it exists and to former spouses in indivision thereafter.

See this article for more discusion of this decision. Each state with community property laws will have its own jurisprudence on how this issue is resolved.

Xaviar Xerexes

Wandering webcomic ronin. Created Comixpedia (2002-2005) and ComixTalk (2006-2012; 2016-?). Made a lot of unfinished comics and novels.

10 Comments

  1. I don’t think you can actually do that under current copyright law – you can license your work freely (using one of a number of GPL-like licenses) but you can’t proclaim it to be in the public domain – the public domain is for work where the copyright has expired. That’s one of the criticisms of the current US regime – even for work that the creators have forgotten about it’s still protected by copyright for a loooong time. That can actually lead to the loss of creative work because no one looks out for it – the absentee author isn’t interested and the public at large can’t (b/c it’s not yet in the public domain.)

    The key to remember with the above post is that work created during marriage in some community property states is owned by the marriage – that means you can’t dispose of the work yourself – your spouse has a co-ownership in the copyright with you.

  2. If I get a chance I’ll go refresh my memeory on what is admittedly a pretty basic question but I’m still not sure you can put something into the “public domain” like that. I think you can essentially affirmatively say anyone can do anything they like with your work (essentially you’re giving permission to the world to use your work without compensation and/or restriction) and practically that may in most cases result in something like a work being in the public domain but I still say it’s probably not the same since a work in the public domain no longer has a copyright by definition.

    Also it’s a moot point here – if your spouse is a co-holder of the copyright you couldn’t waive/put into the public domain on behalf of your spouse as well as yourself – it seems to me you’d just be handing to him or her the whole, undivided copyright since you’d be giving up your claim to it. (That sounds like what Lay did with her husband – agree in a contract to pay him money for him to agree to explicitly waive claims to her copyrighted material). There’d never be a time you could defeat this because under some community property states it’s a co-copyright the minute you create the work – it kicks in then, not upon division of property at divorce.

  3. Actually it seems the spouse isn’t entitled to any control over the copyright, merely an equal share of the financual earnings of the copyright. The creator still has all publishing and distribution control, the spouse just gets a chunk of the dough the creator makes with it.

    Unless the Sony Bono act changed US copyright to make it illegal for artists to create works specifically for the public domain then artists still have the rights to put any of their works they wish into the public domain. I know the Sony Bono act stomped on a lot of artist’s rights but I don’t think that was one of them.

  4. Copyright holders still can give up their rights and place their works on public domain. The Sonny Bono act didn’t change that. It extended the amount of time you are able to hold your copyrights, but you can give them up anytime you want.

    You must explicitly declare you donate a certain work to the Public Domain. And once you do it, you can no longer claim your rights back.

    Creative Commons even found a way to formalize this process.

  5. It just saddens me to see one of the best cartoonists out there in this sort of trouble.

  6. That’s the rule in LA not CA. And I’d have to look up the rule in the other number of Community Property states.

    I will repeat to try to clarify (and than I’ll stop extending this thread): in a community property state like CA here’s what happens: (1) Webtoonist gets married (no pre-nup is signed); (2) Webtoonist creates several comics – copyright from creation is not solely webtoonists – it is webtoonist and spouse as co-copyright holders.; (3) Webtoonist gets divorced – copyrighted material must be divided equitablly between the spouses (in theory the worse case scenario for the webtoonist could happen – that is the judge assigns the full copyright to the spouse in the division of property. Don’t know how likely that is though). In LA nothing changes except the webtoonist does not have to fear losing creative control over the copyrighted work upon divorce.

  7. You know, I think if I was getting a divorce and my intellectual property was to become communal property, I’d just put all my works up until that point into the public domain just out of spite.

    That’ll show ‘er.

  8. I think a creator can explicitly release his/her copyrights into the public domain.

  9. That is true. Who ever has control of the copyright can choose to release their work into the public domain. Back in the 1980s there used to be a lot of public domain computer programers.

    It would definetly be a good “gotcha-last” move to declair your work up until your divorce as public domain. Especially if you’ve got the kind of fame bank you can easily put behind another product (until the law decides that fame is community property too… although I guess that explains Courtney Love and Tom Arnold).

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