User:Deleteopedia/SANDBOX TEST

TEST SPACE
 ================================================================= =

I do not represent Wikipedia in this matter, but in my personal…

'Opinion: ''Your wife being the photographer means you hold the copyright, “by operation of law”. '''

Below is the explanation: 

 ============================================================ ======

THE IMPORTANT QUESTION:

'''It’s overly simplistic to say that the copyright always vests exclusively in the creator. For example, one notable exception can be seen in the “works-for-hire” doctrine; an existing relationship vests copyright in a non-creator''' (rights to an employee’s creation vest in the employer). Given that example, the important question to ask is…

IS MARAIGE AN EXISTING RELATIONSHIP THAT VESTS COPYRIGHT IN A NONCREATOR? This question is only superficially a copyright question. It is, to some extent, a marital property law question. Mostly, it is a conflict of laws question, specifically federal preemption of state law, a doctrine based on the Supremacy Clause of the Constitution.

 ================================================================== 

THE RELEVANT LAWS ARE:     


 * 1) The Federal Copyright Act of 1976    [ 17 USC 101 (1994).]
 * 2) § 106 defines a bundle of (copy)rights:
 * 3) reproduction, derivative works, distribution, performance, and display.
 * 4) § 201 vests the rights exclusively in the creator, at the time of creation.
 * 5) § 301 bars asserting “rights that are equivalent to” the § 106 rights.
 * 6) State Community Property Law     
 * 7) Under ccommunity property law, a civil law tradition, a marriage is legally one unit, instead of two individuals. Property coming into the marriage becomes “community property”, in which each spouse has an equal, undivided interest.
 * 8) The nine states are community property: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin
 * 9) The Preemption Doctrine   Hisquierdo v Hisquierdo, 439 U.S. 572 (1979).         
 * 10) Federal law preempts conflicting state law, under the Supremacy clause, usually.
 * 11) EXCEPT, in family law, where federal courts are highly deferential to states.
 * 12) Under Hisquierdo, SCOTUS set a high bar for preemption in family law
 * 13) preemption is ONLY proper under Hisquierdo’s two-pronged test if:
 * 14) “conflict is express”; Congress “required preemption by enactment” AND
 * 15) state law does "major damage to clear and substantial federal interests”

 ================================================================= 

THE FIRST PRECEDENT: In Re Marriage of Worth, 241 Cal. Rptr. 135 (1987).

The question was never addressed by any court until 1987, when it was heard for the first time in the case of ''In Re Marriage of Worth. ''After a trial court granted an order affirming Worth’s ex-wife’s claim to the copyrights to several books he published during the marriage, Worth appealed. Reid (2000) explains Worth’s arguments on appeal in the Notre Dame Law Review,

Argument1: under § 201(a) only a creator can own un-transferred copyrights

Worth contended "vesting initially in the author" in the Federal Copyright Act, means only the author; his wife had no claim to the copyrights. Feeling that this ide a ran afoul of [the] "general proposition that all property acquired during the marriage is community property."

The court rejected this argument, ruling the statute providing marital property is

community property transfers copyright ownership to the spouse "by operation of law" after the copyright had "vest[ed] initially in the author." In doing so, the court embraced an instantaneous transfer of rights to Susan occurred just after the initial vesting in Frederick.

Held: it’s an “inescapable conclusion” that copyrights are community property.

Argument 2: 17 USC § 301 expressly preempts state community property law

Worth argued that his ex-wife’s claim was exactly what § 301 prohibits, which is

assertion of "legal rights that are equivalent to the exclusive rights" granted by § 106.

The court rejected this argument, ruling that congressional intent for § 301 was to preempt conflicts with state copyright law, not marital property rights. Additionally, the court found it important that 17 USC § 201 provides for transfer of rights, as well as co-ownership, even co-vesting of copyright for joint works. The co-vesting co-ownership contemplated by § 201 was taken as evidence that nothing in the act expressly precluded co-ownership vesting in a spouse. For both these reasons, the court held there was no express conflict with the Federal Copyright Act, so state community property law would govern.

Co-ownership of copyright under § 201 is a tenancy in common, where each co-owner may nonexclusively license the copyrighted work with no duty to inform the other.

Much Ink has been spilled subsequently, including about the Rodriquez case, but this is enough for me to form an opinion that Wikipedia would be safe with your non-commercial photo.

REFERENCES


 * Nayo, L. (1995). Revisiting Worth: The Copyright as Community Property Problem, 30 U.S.F. L. Rev. 153.
 * Reid, J.P. (2000). Rodrigue v. Rodrigue: Another Copyright and Community Property Case Worth-y of Controversy, 75 Notre Dame L. Rev. 1183.
 * Nimmer, D. (1988). Copyright Ownership by the Marital Community: Evaluating Worth, 36 UCLA L. Rev. 383, 411, 415.
 * Wong, P.J. (1995). Asserting the Spouse's Community Property Rights in Copyright, 31 Idaho L. Rev. 1087, 1090.

'''

'''

Could copyright vest in both Subject of photo AND Photographer for other reasons?

'''YES. JOINT WORK.'''

'''ARGUMENT: Subject gave artistic input to photographer, constituting collaboration. As a result,'''

subject & photographer created “joint work” so subject co-owns copyright under § 201(a).

SUPPORT: Clicking the shutter doesn’t automatically grant sole copyright… 

'''[https://casetext.com/case/brod-v-general-pub-group-inc Brod v. General Publishing Group, Inc. 32 Fed. Appx. 231 (9th Cir. 2002).] '''

Ruling: Photo concepts, location selection, objects, composition decisions, etc. are sufficient for “joint work” to be created through collaboration, vesting copyright in collaborator, creating co-ownership with photographer.