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“I Got You Babe.” That’s what Cher and Sonny Bono were singing to each other in the 1960s when they were married musical superstars. The following decade, however, the two divorced and had to split their assets. In 1978, three things happened. First, as part of the divorce agreement, Sonny assigned Cher a 50 percent share of his composition royalties. (He, not she, had authored the songs.) Second, Congress ensured that the royalties would be flowing well into the future by substantially increasing the number of years that copyrighted works would be protected. The third we’ll get to in a moment, as it’s become the subject of a new lawsuit in which Cher now alleges being robbed of royalties.
Sonny and Cher illustrate a conundrum that’s common in the entertainment community: Give creatives all the ability in the world to profit off their intellectual exploits — but also prepare for some huge headaches if it’s necessary to divide co-owned property. After all, bands break up. Celebrities die. And marriages blow up. In the age of intangible property, divvying up community property can be immensely bedeviling.
“There are few rules of the road,” says Jay Polstein, a partner at the family law firm of Wasser Cooperman & Mandles, explaining that sometimes there are holes in precedent because “no one wants to air dirty laundry.”
Especially when it comes to the entertainment arena, this has been an ongoing problem. When something does come to the fore, it gains outsized attention among money managers and attorneys.
Take divorces, which for all the tabloid ink have only produced about a half-dozen cases of significant influence on the topic of intellectual property. Among them: Star Trek creator Gene Roddenberry’s 1969 split from his first wife, Eileen. Did a divorce agreement that entitled her to profits from the famous sci-fi original mean she also would get a cut of Star Trek: The Next Generation and Star Trek: Deep Space Nine? At the time of their divorce, Star Trek was deemed a commercial failure, canceled after three seasons. While he held on to rights and profited on successful movies and renewed interest in the franchise when reruns played in syndication, a legal question arose in the mid-1990s: whether the old divorce agreement contemplated sequels. A California court eventually ruled that Eileen was not entitled to profits from TNG and DS9.
Another divorce now legendary in family law circles was the one between director John McTiernan and actress Donna Dubrow. The two were married in 1988 right before his amazing run of hits that included helming Die Hard (1988), The Hunt for Red October (1990) and The Thomas Crown Affair (1999). Upon their split in 1997, was she entitled to half of his enlarged earning capacity and reputation in the industry? Not exactly. Although she was to get half of his business, an appeals court decided in 2005 that community property didn’t include the “goodwill” in his career as a director.
Still, despite such rulings, there remains legal ambiguity with respect to splitting intellectual property. For instance, how about the value of an artist’s name? That might be another way to characterize “goodwill” — but, then again, if the artist’s business includes registered trademarks, maybe that’s divisible? Right now, Andre “Dr. Dre” Young is facing claims from his soon-to-be ex-spouse, Nicole, of trying to hide trademarks (including for “Dr. Dre”) they allegedly co-own. He insists that “Dr. Dre” was created before the marriage and therefore can’t be considered joint property.
Then there are rights of publicity, meaning ownership of one’s image and likeness. How does one split such an asset? And what are the implications afterward?
“I’m dealing with right of publicity in an heirs situation now,” says Greenberg Glusker partner Aaron Moss. “Total mess. As far as I know, there isn’t a single case addressing the rights of co-owners. I assume default rules are similar to copyright, but there’s no guidance out there at all.”
In the divorce context, Brad Pitt probably doesn’t co-own Angelina Jolie’s image, and vice versa, after their split. Although it hasn’t been firmly settled, in a complicated 2014 decision involving the late Bing Crosby and his ex-wives, a California appeals judge wrote in a footnote that likeness rights are an exception to the usual rules about community property from a marriage.
But, of course, other issues are coming up. Sharing professional “goodwill” may be out of bounds, but what about a TikTok account that has amassed millions of valuable followers during a marriage? Must social media influencers, upon divorce, share their passwords with ex-spouses? And what about those who survive an influencer’s death? These may seem like outrageous questions (and novel ones given the age of most influencers), but as Soundgarden is fighting in court with the widow of singer Chris Cornell over who gets to control the band’s social media accounts, there’s no reason to think similar problems won’t arise.
“I don’t think there’s any question this can be community property, but I can’t think of a case,” says attorney Daniel Jaffe of social media accounts. “Clearly there are people making substantial sums of money by virtue of social media posts. This is a fertile area in divorces. Hmm. I’m going to have to write a law review article about this.”
Verified Twitter accounts aren’t at issue in Cher v. Bono. Instead, a 1978 copyright law is coming into play. When Congress extended the copyright term back then, lawmakers also gave authors the ability through termination rights to reap the benefits of the past few decades of the newly extended term. The idea was that creators often assign rights to big studios and publishers for modest compensation when they’re up-and-coming and should have another bite at the apple later in life.
It’s doubtful Congress spent much time considering the law’s impact on divorcing couples. But now, Mary Bono, Sonny’s fourth and final wife who inherited his rights when he died in 1998, is arguing that a copyright termination also cancels the royalties earmarked to Cher, his earlier ex-wife, in their divorce agreement. In an Oct. 13-filed lawsuit, Cher challenges such an assessment.
If Mary Bono is correct, and federal copyright law preempts state family and contract law, that will throw another huge wrench into efforts to divvy up marital property. It’ll also showcase the value of a long copyright term, which got decades longer in 1998 upon passage of the Sonny Bono Copyright Term Extension Act — co-sponsored by then-Rep. Mary Bono.
This story first appeared in the Nov. 10 issue of The Hollywood Reporter magazine. Click here to subscribe.
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