Wednesday, July 28, 2004
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.
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:
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.
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.
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.
Monday, July 26, 2004
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).
Friday, July 23, 2004
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.
Here is the Congressional Record transcript of the discussion on the floor. Put yourself in a calm, quiet setting before reading it.
Wednesday, July 21, 2004
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.
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.
Wednesday, July 14, 2004
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.
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.
Friday, July 09, 2004
Boston.com / News / Nation / Policy on gays seen hurting military
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.
Saturday, July 03, 2004
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.
Friday, July 02, 2004
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.