I Do. What Did I Do?!

Ah, love. I love love.
Marriage, however, well, let’s say I am not such a fan. The idea of getting married gives me Humback-whale-sized willies, just as a concept. But I’m odd in that–most people want to get married at some point, including creative pros.

Many traditional wedding vows point out that a marriage shouldnt be entered into lightly or unadvisedly. Good advice, but it’s given too late, while you’re standing there in front of friends and family, sealing the deal. For creative professionals, there is an extra wisdom to that advice that you need to think about long before saying,”I do.” If you are a creative professional, particularly a self-employed one, then marriage may affect you in ways you never dreamed.

As a creative pro, you create intellectual property: copyrights. When a creative work is made, fixed in a tangible (including digital) medium, the copyright automatically comes into being. I like to tell photographers that every time the shutter clicks, a copyright is created, but its the same for any creation; when I finish writing this post, its copyright will come into being.

The initial owner of the copyright is usually the author/artist who made the work. There are exceptions, like if you are an employee and make the work as a part of your job, or if you have signed a work-for-hire agreement before creating the work; but, for independent artists, the initial owner is usually the artist. That means, if you are a self-employed creative pro, you automatically own the copyright in each work you make. You make art; boom, you make its copyright.

Copyrights are assets. They are property (there is a reason copyright, trademarks, etc., are called intellectual property). They have value separate from the art-object itself. You can buy a painting, but that does not mean you own the painting’s copyright[1]. Copyrights can be bought and sold all on their own, separate from the art-object, too. The rights associated with copyright, like to reproduce a work, can be licensed to others. If you register your copyrights (and, please, register your copyrights), you get extra tools if they are infringed but, even without registration, copyrights are valuable assets, just like a car or a house.

Because copyrights are property and are like any property acquired during a marriage, if you divorce, they can become part of the calculations for spousal support, child support, or even be a part of the actual division of assets.

If you live in a community-property state, except for California (where copyrights still matter, but differently so, and well get back to that bear–pun intended–in a minute), the value of your copyrights has to be included in the division of property calculations. They also may affect spousal support and child support, but I’m not going into those support issues in this post (trust me, it’s a nightmare). In a community-property state, virtually all assets[2] acquired (or created) during a marriage must be split 50-50 at divorce. Very roughly speaking, this means adding up the value of all the assets in the marriage and dividing by 2.

As a massively simplified example: imagine you created only 2 copyrights during your marriage and they are valued at $5000 and $45,000; your soon-to-be ex gets half that total value, that is, $5K + $45K = $50k 2 = $25,000[3]. Get out your checkbook.

Now, think about how many copyrights you create in just a month or a year. Yup, we’re talking a ton of potential value. Just determining the value of the copyrights is going to be costly. You don’t get to say They’re worthless! Nope, you will need to hire experts and it is likely your ex will as well, adding to the costs and the legal fees as this is all hashed out.

Now, if that isn’t bad enough, even more concerning is that if you get revenue from the copyrights, your ex may also be entitled to a share of that revenue. This may betrue even for future revenue, after the divorce, as long as the copyrights were created during the marriage[4]!

Turning back to the California bear, things here are even more troubling for the creator-spouse. In my adopted state, not only does the non-creator-spouse (if you split) get the (ahem) gift bag described already, the state courts have decided that the non-creator spouse, at the moment of the copyright’s creation, automatically owns an undivided half of the actual copyright in any work created by the creator-spouse during the marriage[5]. You read that right–you create and your spouse magically becomes the joint owner of the copyright, right then.

Whats the big deal with that? Well, lots (including that I think that is contrary to federal law) but, practically speaking, it means that, even without divorce, the creator-spouse loses control over her/his work. I don’t care how much you love your partner, this can really suck. The non-creator spouse in California can sell or bequeath his/her half interest in the work to anyone, without the creator-spouses permission. S/he can also license the work to anyone (assuming that thelicense is otherwise legal), again, without the creator-spouses approval; the only requirement is that revenues must be (equally) shared.

The final California insult: at divorce, if you are the creator-spouse, you’re going to have to negotiate ownership with your soon-to-be ex, which will likely mean buying him/her out. Ouch. If not that, then agreeing to transfer halves to each other, meaning that you lose ownership of some of your own work. Ouch again.

Most states are not community-property states, luckily. However, even under their various laws, the value of your copyrights may significantly affect any financial settlements in your divorce.

You can avoid much of this by getting a prenuptial agreement that includes provisions to keep copyrights as separate property and describes how revenues related to them will be handled, in the event of a split. If you are already married, you can still have such an agreement drafted (a post-nup) and (hopefully) executed by you and your spouse. As in all things, consult with your own attorney before doing anything–preferably one who does primarily family law (so, um, not me) but who understands IP law or who can collaborate with someone who does (like me).


[1] Unless you bought that too, and that transfer has to be in a signed writing.

[2] There are some exceptions, depending on the state.

[3] See, e.g., Berry v. Berry, 277 P. 3d 968 (Hawaii 2012)

[4] See, e.g., Rodrigue v. Rodrigue, 218 F.3d 432, 443 (5th Cir. 2000)

[5] In re Marriage of Worth, 195Cal App. 3d 768, 241 Cal. Rptr. 135 (1987) is the controlling case in California.