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Marriage Equality May Extend to Copyright

The U.S. Supreme Court and lower courts throughout the county have extended same-sex couples the right to marry in many states. When the U.S. Supreme Court struck down part of the Defense of Marriage Act in the Windsor decision, the Obama Administration began providing most federal spousal benefits to all same-sex married couples, regardless of where they live.  However, the Copyright Office, the Social Security Administration, and the Department of Veterans Affairs do not recognize same-sex marriage in states that do not recognize gay marriage.

The current Copyright Act grants rights to widows and widowers only if the marriage is recognized in the owner’s state of residence at the time of death. Therefore, if an artist marries a same-sex partner in California, but dies as a resident of a state that does not recognize same-sex marriage, his partner does not qualify as a widower under the Copyright Act.  In this type of example, the artist’s widower cannot be legally entitled to the artist’s creative rights through the Copyright Act’s survival provisions.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) introduced  The Copyright and Marriage Equality Act to close this discriminatory loophole. Rep. Derek Kilmer (D-Wash.) sponsored similar legislation in the House.  It has attracted 32 co-sponsors, including two Republicans.   “It will ensure that the rights attached to the works of our nation’s gay and lesbian authors, musicians, painters, sculptors and other creators pass to their spouses the way they now do for heterosexual creators,” Senator Leahy explained in a piece in the The Hollywood Reporter.

Specifically, the Bill would amend the Copyright Act by changing the definition of “widow” or “widower” such that surviving spouses would receive rights even when a death occurs in states that do not recognize gay marriage.  The bill would consider a person a widow or widower so long as courts in the state where the couple married would find the surviving spouse validly married to the author of the work when he or she died.  Therefore, even if the individual never lived in a state that recognized gay marriage, the widow or widower would be entitled to rights under the federal Copyright Act.

Therefore, the Copyright Act may change in the future, if this bill can gather enough Republican support to become law.




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