Copyright law gives a deceased author’s surviving spouse the right to terminate a transfer of copyright rights that the author made decades earlier. The spouse who recovers the author’s rights can, in many instances, negotiate a new transfer on more favorable terms. Because the statute grants this termination right to a deceased author’s widow or widower, copyright law must determine who qualifies as the author’s spouse, a question more familiar to family law than copyright law.

Copyright’s termination provisions, from their enactment in 1978, have treated gay and lesbian authors with same-sex partners less favorably than authors with different-sex partners. The statute’s facially neutral language has, in practice, always treated authors with same-sex partners unequally because its marriage recognition rule has incorporated by reference unequal treatment of those couples by state and federal law. This unequal treatment has evolved over time, as some states allowed same-sex couples to marry, as Congress enacted the so-called Defense of Marriage Act (DOMA), and as the Supreme Court struck down DOMA’s federal marriage recognition provisions in Windsor v. United States. But even after Windsor, copyright law still treats gay and lesbian couples unequally, so that an author with a same-sex spouse must be careful where she lives when she dies - if she is domiciled in a state that does not recognize her marriage, then copyright law will not recognize her surviving spouse.

The Supreme Court’s decision later this year in Obergefell v. Hodges, challenging state prohibitions on marrying same-sex couples, could perpetuate, reduce, or largely eliminate copyright law’s remaining inequality. But even the most favorable Court decision for marriage equality would leave copyright law’s unequal treatment in place for authors - American and foreign - who live in most other countries in the world, as long as copyright’s statutory marriage recognition rule remains unchanged.