by Maria Teresa Roca de Togores, Policy Intern

On October 6, 2014, the Supreme Court made headlines by declining to hear several cases where federal appeals courts had upheld same-sex marriage rights on constitutional grounds, effectively making marriage equality the law of the land in several more states. On Tuesday, the 9th Circuit federal appeals court followed suit by rejecting same-sex marriage bans in Idaho and Nevada. But despite all these quickly moving changes, there are a still a number of federal laws that have yet to be updated to ensure that the federal government treats same-sex marriages equally. One proposed update is of particular interest to musicians, songwriters, and other creative professionals.

Last month, Rep. Derek Kilmer (D-WA), along with Ilena Ros-Lehtinen (R-FL) and Jared Polis (D-CO) and other co-sponsors introduced the Copyright and Marriage Equality Act, a new bipartisan bill that would amend the Copyright Act to more fully include same-sex married couples under the Copyright Act’s protection regarding the transfer of the rights to original work.

If you’re unfamiliar with what the law currently says about this matter, here is a quick overview: when a copyright holder dies, their spouse—or next of kin—can keep the exclusive rights to an original work until it enters the public domain. However, under the Copyright Act this right is not necessarily guaranteed to same-sex married couples living in states where same-sex marriage is not recognized. 

For musicians and songwriters in same-sex marriages this could have serious implications. Take the example of a singer-songwriter who owns her own sound recordings and composition and, is legally married to a same-sex spouse in New York state. Her spouse would be able to inherit those copyrights upon her death. But if the couple chooses to retire in Alabama, where marriage equality is not legally recognized under state law, the surviving spouse could lose those rights.

The Copyright and Marriage Equality Act attempts to solve this problem and account for the current differences in laws from state to state by clarifying the definition of widow/widower:

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 (Read the entire proposed act)

The sponors of this new legislation believe it is unacceptable that a surviving spouse of a copyright holder in a same-sex marriage could be denied federal rights afforded to opposite-sex spouses. As Rep. Ros-Lehtinen declared in a September 18 statement, “all married couples should be secure in the knowledge that one person’s copyright and its benefits will not be lost due to an out of date regulation.”

We at FMC agree, and we’re not alone. So far, organizations like the Human Rights Campaign, Screen Actors Guild – American Federation of Television and Radio Artists (SAG-AFTRA), Writers Guild of America, and American Civil Liberties Union (ACLU) have all supported this newly proposed legislation. Like SAG-AFTRA Chief Deputy General Counsel Jeffrey P. Bennett, we believe that equal rights for same-sex married copyright holders are an “issue of fundamental fairness,” and that it is an appropriate time for the US Congress to take action.  It’s also a good reminder that keeping copyright protection uniform at the federal level is a good way to achieve fair, consistent, and predictable protections, often preferable to laws that vary from state to state.

Photo by Lindsay Douglas via Shutterstock