Copyright Law: The Silent © in Same-Sex Marriage

WhyDontYouLast week, the focus of the legal world was not on intellectual property, to put it mildly. However, copyright law did have a small and somewhat silent, but still important, role in the Supreme Court jurisprudence that led to the legalization of same-sex marriage in Obergefell v. Hodges. In fact, the reasoning of United States v. Windsor, the 2013 precursor to Obergefell which struck down the Defense of Marriage Act (DOMA), relied in large part on a 1956 copyright case.

Why Don’t You Marry the Girl?

Tin Pan Alley composer B.G. “Buddy” DeSylva was ahead of his time in many ways, but he could not possibly have realized that sleeping with his secretary would eventually lead to the legalization of same-sex marriage.  After making it big in the 1920’s with such  hits as California Here I ComeSonny Boy and If You Knew Susie  (and lesser-known works such as Why Don’t You Marry the Girl?), DeSylva moved to California where he scored soundtracks, produced a slew of Shirley Temple films and worked as a studio executive .

In 1939, DeSylva (then 44) hired Marie Ballentine, who the newspapers at the time described as a 23 year-old “vivacious brunette.”  Within months, DeSylva and Ballentine were having an affair and, in 1944, Ballentine gave birth to Stephen Ballentine. DeSylva stayed with his wife, but he also acknowledged Stephen as his child. In 1950, DeSylva died of a heart attack, leaving his widow, his “illegitimate” son and a treasure trove of valuable copyrights that were just coming up for renewal. A court battle was inevitable.

According to the 1909 Copyright Act, which was in effect at the time, the right to renew the copyright of a deceased author fell to the author’s “widow, widower or children.”  DeSylva’s widow claimed that “children” meant only legitimate children, thus excluding Stephen.  However, the Supreme Court disagreed. Writing for the Court in DeSylva v. Ballentine, 351 U.S. 57- (1956), Justice Harlan held that, since “there is no federal law of domestic relations, which is primarily a matter of state concern,” the Court should defer to California law for the definition of “children.”  Under California law, Stephen, because he had been acknowledged by his father, could inherit from his father’s estate.  Therefore, “children” in the Copyright Act included acknowledged illegitimate children, at least if they were from California.

DeSylva’s Legacy

Over half a century later, the Supreme Court used the holding in DeSylva to strike down DOMA in United States v. Windsor. Justice Kennedy wrote that “because there is no federal law of domestic relations,” the federal government must defer to the states when defining marriage, even in the application of federal laws such as the tax code and the Copyright Act. DOMA purported to allow the federal government to ignore that deference and override New York’s domestic relations laws, which allowed same-sex marriage. Therefore, DOMA could not stand.

DeSylva became relevant again when it was time to file amicus briefs in the Obergefell matter. Opponents of same-sex marriage used DeSylva to argue that the federal government should defer to the domestic relations laws of the states. Meanwhile, supporters of same-sex marriage pointed to DeSylva, and copyright inheritance generally, as an example of a federal benefit from which same-sex couples in some states would continue to be arbitrarily excluded unless their unions were recognized.

Obviously, the latter arguments won the day. Now, it’s true that neither the Obergefell opinion nor any of the dissents mentioned copyright law or expressly cited DeSylva for anything. Maybe it raised thorny issues neither side wanted to confront; or maybe citing a case about a defunct version of the Copyright Act just didn’t seem that helpful.  However, Justice Kennedy cited Windsor for, among other things, the proposition that marriage confers “significant status for over a thousand provisions of federal law” from which same-sex couples will now no longer be excluded. Surely, copyright law – as interpreted by DeSylva – is at least one of the provisions that led to this conclusion, and maybe even one of the most influential.

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