The Copyright Act Expressly Provides for Co-Ownership as Well as Transfer of All or Part of a Copyright

During marriage, Husband wrote and published several books, including two books on trivia: The Complete Unabridged Super Trivia Encyclopedia and The Complete Super Trivia Encyclopedia, Volume II. In their 1982 divorce decree, Husband and Wife agreed to divide the royalties from those books equally. In 1984, Husband’s divorce attorney filed an action in federal court against the producers of the board game “Trivial Pursuit” alleging copyright infringement. Husband’s divorce attorney claimed that certain questions used in the board game were plagiarized from his books. Wife’s divorce attorney then sought an order from the divorce trial court declaring that she would be entitled to one-half of any proceeds from Husband’s lawsuit, based upon the terms of the family law court’s previous divorce judgment. The divorce court granted Wife’s request and ordered Husband restrained from disbursing the proceeds of any verdict or settlement until Wife’s portion of the money was accounted for. Husband’s divorce lawyer appealed the divorce court’s ruling on this novel issue of a community property interest in a copyright.

Congress’s Constitutional power to regulate copyright was, at the time, codified in the Copyright Act of 1976. The Act granted to a copyright holder exclusive rights over his own work to copy, perform, display, distribute for sale, and prepare derivative works. Any person who infringed upon the copyright and copied, sold, or created derivative works without permission would be subject to both civil and criminal action. The copyright holder had the power to grant a license to others to make use of the copyrighted work, customarily in exchange for the copyright holder’s right to receive royalties. In a suit for copyright infringement, the copyright holder may obtain injunctive relief, impoundment of the infringing materials, and damages. Recoverable damages include the copyright holder’s actual damages plus any profits of the infringer not comprising a component of actual damages.

Husband’s divorce attorney pointed out that under the Act, a copyright in a protected work “vests initially in the author or authors of the work.” Thus, he argued, the copyright belongs only to the author. The Appellate Court disagreed. All property acquired during marriage is community property. It did not matter that Husband alone authored the trivia books. The principles of community property law do not require joint or qualitatively equal spousal efforts or contributions in acquiring the property; it is enough that the skill and effort of one spouse expended during the marriage resulted in the creation or acquisition of a property interest. In short, the Appellate Court concluded that a copyright on a literary work produced during the marriage was as much a divisible community asset in a divorce as the underlying artistic creation itself.

Husband’s divorce attorney also contended that the divorce court lacked jurisdiction to divide any proceeds resulting from the federal lawsuit. The Appellate Court called his argument “specious.” Husband’s divorce attorney’s argument failed to take into account the community nature of the copyrights. Although the stipulated divorce judgment divided only the future book royalties and not the intangible copyrights, nonetheless, as property interests acquired during the marriage which remained undistributed under the terms of the divorce judgment, Husband and Wife would hold title to interests in the copyrights as tenants in common. As a common owner of the copyright, Wife would be entitled to share in all of the proceeds from the copyright, including any settlement or award of damages resulting from Husband’s copyright infringement verdict or settlement.

In re Marriage of Worth (1987) 195 Cal.App.3d 768