A lawsuit filed by Cher against her ex-husband Sonny Bono’s widow might carve out some clarity on a murky area of copyright law that brings together copyright, family, and estate law, attorneys say.
Cher claimed in a complaint filed in a California federal court that former U.S. Rep. Mary Bono can’t invoke a termination rights provision in the U.S. Copyright Act to halt her royalty payments. In 1978, Sonny Bono agreed to give Cher half of his rights in his compositions and royalties.
Mary Bono says that when the Bono Collection Trust, which handles Sonny Bono’s estate, reclaimed its rights to Sonny Bono’s copyrights from music publishers in 2016, the termination notices also meant to end royalty payments to Cher from the marriage settlement.
Copyright attorneys say the lawsuit will hinge on how copyright law and family law intersect to determine whether Mary Bono can end Cher’s royalty payments. Termination rights suits generally settle before setting precedent, and there are few cases that deal with both divorce and copyright transfers.
“Quite honestly, like everything to do with copyright terminations, you’re never quite sure how it will turn out,” said Kevin J. Greene, a copyright law professor at Southwestern Law School.
Cher’s attorney is arguing that Cher’s royalty payments fall outside the parameters of the Copyright Act’s termination provision. Under Section 304(c) of the law, the creator’s heirs can reclaim rights of grants or licenses executed before 1978, which kicks in 56 years after the registration.
Even if the provision did apply, then California state law governing community property rights and contracts takes precedence, according to the complaint.
“When they divorced, Plaintiff and Sonny agreed to an equal division of their community property,” the complaint said, “and, to that end, in 1978, Sonny irrevocably assigned to Plaintiff, as her sole and separate property throughout the world and in perpetuity, fifty percent of their rights in musical composition royalties, record royalties, and other assets.”
Cher’s marriage settlement is more equivalent to a car note or mortgage payment, making it an assignment of monetary rights, said Stacey Schlitz, an intellectual property attorney and founder of Schlitz Law in Nashville, Tenn. Because the divorce agreement giving Cher the right to the royalty payments isn’t the same as a grant to a publisher, Cher is still entitled to 50% of the royalties, Schlitz said.
Rights to reproduce and distribute the works are exclusive rights under the Copyright Act and preempted by federal law, while royalties aren’t. An assignment of rights to royalties would then be governed by state contract law.
“They could potentially settle this, although it would be nice to get some law on the books. Because you know this is a really interesting area of the law,” she said. “It would help to get some clarification as to what constitutes a grant versus what constitutes just an assignment of rights.”
However, if the court views the marriage settlement as a grant, then it’s likely that federal copyright law would have to trump state law, Greene said. Termination provisions in the Copyright Act say that creators can reclaim rights notwithstanding any contract to the contrary, Greene said.
“In the complaint, Cher’s lawyer says it doesn’t apply to 304 provisions,” Greene said. “They say even if they did, this should be governed by state law, the law of contracts, but that’s not typically how it works.”
Rebecca Tushnet, a copyright law professor at Harvard University, said there’s also a question of whether the agreement was done by operation of law—California’s community property law—which wouldn’t be terminable. The Copyright Act provides for transfer by operation of law. In that case, Mary Bono couldn’t end royalty payments to Cher.
It’s unclear, though, if the court should consider Cher’s rights given to her by operation of law if there was deal-making and her agreement wasn’t exactly what a court would have done, Tushnet said.
“If the court had done the allocating it would clearly be by operation of law. If they do it in the shadow of the community property regime, I think that’s just unsettled,” Tushnet said. “There are good arguments for both sides, so this will be interesting to see what happens.”