DOMA’s Ghost and Copyright Reversionary Interests

Greenberg, Brad A. | October 1, 2013

When the Supreme Court struck down part of the federal Defense of Marriage Act (DOMA) in United States v. Windsor, it created an unexpected conflict of law in an unrelated statute. The Copyright Act mandates statutory heirs for reversionary interests, and whether an author leaves a surviving spouse is based on “the law of the author’s domicile at the time of his or her death.” Federal law now forbids limiting marital recognition, and the benefits therefrom, to heterosexual couples, but the Windsor Court left in place the DOMA provision that permits states to refuse to recognize marriages entered into in another state. That means an author could bequeath her copyrights to her widow free of federal estate taxes but, if the author dies in a state that does not recognize her same-sex marriage, the reversionary interests would skip the widow and go solely to the author’s children. This conflict of law undermines Congress’s goal of encouraging the creation of expressive works by promising rewards to an author’s widow and children. To resolve the conflict, this Essay proffers amending the Copyright Act to base statutory heirs on the law of the state of the marriage’s celebration.