New England School of Law OUTLaws

Melissa Etheridge and Janis Ian are among the artists speaking out in Rolling Stone about the discriminatory treatment they are facing in U.S. copyright laws regarding inheritance rights.  Apparently the law is very specific regarding who is to inherit the right to an artist's work upon the artist's death, regardless of any legally expressed artist intentions regarding such inheritance.  From the article:

No matter what an artist's intention, spouses, children and grandchildren, in that order, are the first in line to recapture the copyrights, followed by next of kin, executors and administrators. Since most states do not recognize gay marriage, gay artists often cannot leave the rights to songs to their significant others.

Legally married in Massachusetts?  Sorry, but copyright law is federal law, so DOMA will get in your way.  Representative Barney Frank, upon being questioned by Rolling Stone about the issue, replied that he:

...was unaware of the situation. "It's a problem and I'm glad to have it called to my attention," he says. "I'll address that right away."

Relevant copyright language can be found in Title 17, Chapter 3, Sec. 304.
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UPDATE 7/29/04: I had some questions about the Rolling Stone article, as did others (see Comments).  Would the default inheritance structure in the copyright code actually override any instructions clearly specified in a valid will?  I found this on the website of the U.S. Copyright Office, in the "Copyright Basics" section:

A copyright may also be conveyed by operation of law and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.

Copyright is a personal property right, and it is subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property as well as terms of contracts or conduct of business. For information about relevant state laws, consult an attorney.

So where did author Beverly Keel get her information?  In the article, she quotes Nashville attorney Linda Edell Howard and Middle Tennessee State University professor Geoff Hull, who is also a recording industry attorney.  Professor Hull teaches Copyright Law, and Legal Problems in the Recording Industry.  Ms Hull's practice focuses specifically on transactional work associated with the recording industry, and on protection of intellectual property rights. 
Both appear to have extensive knowledge and practical experience in the field. 

I'm going to send an e-mail to each, asking if they could provide clarification on the issue.  I'll post further on any relevant response.


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In a case that continues on the issues explored in earlier posts (here and here), a Pennsylvania appeals court has refused to enforce what the court itself determined was a valid contract that a sperm donor would not be responsible for financial support of the twins produced by the arrangement.  In the six-page opinion for Ferguson v. McKiernan, the court determines that the contract is unenforceable because the bargained away right for support belonged to the children, not to the parties involved in making the contract.  The parties involved had been in a relationship at one time, but not at the time of the donation or at any time after.  Pennsylvania has not adopted the Uniform Parentage Act, which protects sperm donors from being forced to provide financial support for resultant children, if such was the arrangement at the time of donation.

So now we've got:
California state court: Genetic mother who donated eggs to her female partner and then coparented the twins for several years was denied parental rights after the couple separated, based on the waiver of parental rights the hospital required the woman to sign prior to the egg harvesting.

9th Circuit Court of Appeals (Arizona):  Children conceived via artificial insemination by a woman after the cancer-related death of her husband, who had expressed his desire that this be done, are eligible for their father's Social Security benefits.  

Pennsylvania state court: Sperm donor who entered into a contract waiving his parental rights and protecting him against financial obligation, is nonetheless required to pay child support. 

These cases continue to open questions anyone considering alternative conception/parenting arrangements should consider.  Protection of parental rights v. enforcement of parental obligations, sperm donation v. egg donation, intentions of donors, situations involving married heterosexuals, unmarried (but previously involved) heterosexuals, and gay couples (unable to be married). 

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The Democratic National Convention will be kicking off at the Fleet Center on Monday, but the events and the people will start their big impact today.  The T had their big "Welcome DNC" sign up in Back Bay this morning, random passenger searches commenced yesterday, and the various T closures (North Station, Lovejoy Wharf) kick in tonight at 8 pm. 

For any industrious students trying to get things done at NESL, please note that "many" administrative offices will be closing at 3 pm next week, but the library will be maintaining its regular hours.

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Yesterday the House of Representatives passed the Marriage Protection Act (discussed here Wednesday), by a roll call vote of 233-194 (8 not voting).  The good news is that the bill is not expected to get very far in the Senate.

Here is the Congressional Record transcript of the discussion on the floor.  Put yourself in a calm, quiet setting before reading it. 

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The House will be voting Thursday on the Marriage Protection Act (HR-3313), which would block all federal courts from hearing challenges to the federal DOMA.  The ACLU predicts that the MPA, if passed, will fail to pass a judicial review of constitutionality based on violation of the Equal Protection Clause. 

For the House Judiciary Committee's report on the bill, including hearing transcript, go to this link and search for 3133 (the relevant section begins about 40% of the way down the page).  You can also view the webcast (or here) from the Judiciary Committee's July 14 session on the bill.


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Just like the Hotel California, where you can check out any time you like but you can never leave, apparently marriage for gay couples in Canada is also currently a one-way arrangement.  The Toronto Star reports that papers have been filed in the first Canadian divorce proceeding for a same sex couple, but the pair face a hurdle:

The petition, filed in the Superior Court of Justice last month, promises to add a new dimension to the prickly legal debate over same-sex marriage, which is heading to a hearing in the Supreme Court of Canada this fall.
 
While courts in three provinces and the Yukon have ruled that the freedom of gays and lesbians to marry is guaranteed by the Charter of Rights, the Divorce Act hasn't been amended to apply to same sex couples.

The petition asks that the court grant a divorce and declare the existing Divorce Act definition of spouse unconstitutional.  The current definition reads:  "...'spouse' means either of a man or woman who are married to each other..." 

The hearing on the motion has been scheduled for September 13. 


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Following last month's dismissal of criminal charges against New Paltz, NY mayor Jason West for performing marriage ceremonies for couples without marriage licenses, another New Paltz Town Justice has likewise dismissed the same charges against two Unitarian Universalist ministers who stepped in to perform the marriages after West was enjoined from continuing.

Town Justice Judith Reichler stated that the charges against Rev. Kay Greenleaf and Rev. Dawn Sangrey were invalid, and that although the DA's office had argued that the charges related only to performing the ceremony for unlicensed couples and did not relate to the fact that the couples were gay, the two issues were "inextricably intertwined," and she called into question the constitutionality of denying marriage licenses to gay couples, specifically rejecting the DA's arguments of tradition and procreation as valid rationales for the disparate treatment of couples based on their sexual orientation.

Justice Reichler's decision is not yet posted, but the town has posted the earlier decision here.

The Ulster County District Attorney's office has not indicated whether they would appeal the dismissal. They have stated an intention to appeal the earlier decision in the West case.
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UPDATE 8/11/04: Lexis has Justice Reichler's decision in People v. Greenleaf, with citation 2004 N.Y. Misc. LEXIS 1121. A text only version can be found here.

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I thought this was an interesting article - given the state of affairs!

Boston.com / News / Nation / Policy on gays seen hurting military
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ACLU of Maryland is representing a number of gay and lesbian couples in a suit against Maryland county clerks in an effort to receive marriage licenses. The ACLU site provides links to plaintiff biographies and the complaint filed with the court.

Yesterday the Washington Post held two online chats about the lawsuit, marriage in general and the Federal Marriage Amendment (here are links to the House and Senate versions). The text of the chats has been published online. At noon the online guest was Dan Furmansky, executive director of Equality Maryland. At 1:00 the guest was Maryland House of Delegates Assistant Minority Leader Christopher B. Shank.

It's fascinating to read the questions and answers that took place in the two conversations. At one point Furmansky appeared as a questioner in Shank's session and asked very specific questions, plus invited Shank to have a face to face discussion of the issues. Shank dodged the questions. Later another questioner pointed out that Shank had not answered Furmansky's questions, and asked that he do so. Shank dodged again. Shank's session ended with this Q&A:

Washington, D.C.: A number of people have tried to ask this and have gotten nowhere, but I'll try one more time. How precisely will your marriage be devalued if gays marry? And please don't just say it will happen. Tell me how.

Christopher B. Shank: Marriage here to fore has been based on a fundamental set of ground rules set by the church and the state. Changing those rules after the fact cheapens and devalues all the marriages that took place before.

In the immortal words of the cast of Grease, "Tell me more, tell me more." How does this cheapening and devaluation come about? I'm thinking that if they actually could answer that question, they surely would.
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Back in May I posted that New Mexico's Attorney General had issued an opinion that the state's Human Rights Act was not subject to repeal by referendum. At that time, State Representative Earlene Roberts had announced that she and her group might still submit the petition to repeal a change which had added sexual orientation and gender identity to the law, and let the issue be resolved in court.

Advocate.com now reports that Roberts has announced the decision to abandon the petition effort due to the minimal likelihood of their winning in court, and a decision that the time, effort and funds that would be required to wage such a battle would be better used elsewhere.
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SunHerald.com reports that the Mississippi Supreme Court decided 5-2 that Judge Connie Glenn Wilkerson should not be sanctioned in response to his 2002 letter to the editor which stated that "gays and lesbians should be put in some type of mental institution..."

Judge Wilkerson wrote the letter to George County Times after reading on the front page of The Mississippi Press that California law had been changed to allow gay men and lesbians to sue for the wrongful death of a partner. This change occurred in the wake of the death of Diane Whipple after being mauled by a neighbor's dog.

Lambda Legal filed an ethics complaint (the complaint contains the full text of the letter to the editor) with the Mississippi Commission on Judicial Performance. The commission in turn requested that the Mississippi Supreme Court sanction Judge Wilkerson.

The Mississippi Supreme Court determined that the statements were not made as part of the judge's official duties but were written in his capacity as a private citizen, and are therefore protected free speech. In their conclusion, the court noted that:

We endorse the Canons, and we certainly endorse the promotion of an impartial judiciary. We also find, however, that the objects of judicial prejudice are entitled to seek a level playing field through recusal motions, and citizens who disagree with a judge’s views are entitled to voice their disagreement at the ballot box. These legitimate interests are frustrated when prejudice is hidden.

There is an old Malayan proverb which states: "Don't think there are no crocodiles because the water is calm." This teaching is applicable to the case sub judice, because Commission urges us to "calm the waters" when, as the guardians of this state's judicial system, we should be helping our citizens to spot the crocodiles.

For the reasons stated herein, we find the judge may not be sanctioned for his statements which are protected by the First Amendment to the United States Constitution. We reject the Commission's findings and recommendation, and we finally dismiss the Commission's complaint and this case with prejudice.

In other words, it's easier to deal with a person's prejudices when they are made available for all to see.
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Here is the general introduction page, and here is the direct link to the information packet for the 2004 Law Review/Journal Summer Writing Competition. The packet includes instructions, affadavit and competition problem. Deadline for entries is Monday, July 12, so get cracking! Evening division students, remember that we're not eligible to enter until after the second year.
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