DOMA Goes Down - Copyright Goes Up - U.S. v. Windsor, Supreme Court, No. 12-307, Decided June 26, 2013

The Supreme Court today handed down a far reaching decision throwing out an attempt by Congress to deny the benefits conferred by federal law on same sex couples legally married under state law holding that the Defense of Marriage Act ("DOMA"), as so applied, constituted a deprivation of the equal liberty of persons protected by the Fifth Amendment. In so doing, and perhaps without realizing it, the Supreme Court was also writing an important copyright case.

Much of copyright law is devoted to legal protection for intellectual property under a social contract allowing authors to exclusively benefit for a limited time from the fruits of their creative endeavors in exchange for enhancing the marketplace of ideas. The presently effective Copyright Act of 1976, and its predecessors including the Copyright Act of 1909, further establish a mechanism for succession assuring that certain defined classes of individuals, the author's "statutory heirs", may continue to enjoy those benefits following the author's death. These classes generally include the author's surviving spouse and children and, in certain circumstances, the grandchildren next of kin and/or the author's executor. Since copyrights are expressly solely a matter of federal law for the federal courts, any such federal benefits would have likely been denied by DOMA had it survived judicial scrutiny.

For example, the renewal copyright provisions allow the recapture of a deceased author's original term copyright (copyrights secured prior to 1978) by an author's surviving spouse and children as a class. Should there be no surviving spouse or child, the renewal right passes to the author's executor, if there is a will, or to the author's next-of-kin in the absence of a will. Clearly DOMA would have denied the benefits of renewal to a surviving, non-author, gay spouse even though such was legally married under state law. What would instead have happened is that an author's children (possibly by a first marriage) would have enjoyed the entire renewal copyright to the exclusion of the legal, non-author spouse. It should, in this regard, be noted that, much to the surprise of many estate attorneys even today, the renewal and other copyright privileges flow directly from the statute to the statutory heirs without regard to the author's plan of testamentary distribution or the state laws of intestacy.

Another example would have been the right of termination of transfers by which the author's...