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If I used my married name with the copyright office, would my husband be entitle to have the rights over my artwork?

San Antonio, TX |

Let's say if things don't work out between us (I hope not!), would he be entitle to have the rights over my artwork?

Attorney Answers 6


  1. This is more of a family law (divorce/separation) question than an IP question, so I have reclassified it. You should consult with a TX attorney who practices in this field.

    This is not to be construed as legal advice, and I am not your attorney, A conflict check and engagement letter would necessarily be required before any retention or attorney/client privilege exists.


  2. The reason the question was sent to divorce/seperation law is because copyrights are "property" and are "owned" by people (or companies). Your copyright is your property and you can do whith it what you will. Sell it, license it, give it away. But, just like a car, home, etc, if you seperate from your spouse, this property can be fought over.

    When did you create the work? If your copyright was "earned" while married it would be considered part of the marital estatein many states, subject to being divided according to state law.

    If the copyright has significant value to you (monetary and/or emotional) there are many issues which you need to discuss with an attorney. I would suggest consulting with an intellectual property attorney, trust attorney, or divorce attorney to discuss your options for possibly removing this property from your marital estate (or clearly documenting it is not part of the maritl estate.)

    Good Luck.

    My disclaimer is simply that Avvo already has an adequate disclaimer.


  3. You should use your legal name for the application with the Copyright Office. If your married name is your legal name, then that is what you should use. Whether your husband would have rights to your copyright would depend on the marital property laws in your state (or a prenuptial agreement if you have one). I think Texas is a community property state, and you should ask a local family law attorney if you have any questions or want to plan for contigencies.

    This answer is for informational purposes only. It is not intended as specific legal advice regarding your question. The answer could be different if all of the facts were known. This answer does not establish an attorney-client relationship.


  4. The copyright and the artwork are created during the course of the marriage, and are community property. The issue would be the valuation of the property at the time of the divorce.

    The above answer does not create an attorney/client relationship. These responses are merely intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney in your community. The law changes frequently and varies from state to state. You should verify and confirm any information provided with an attorney licensed in your state


  5. Jointly with you, if you live in a community property state like Texas, as artwork is protected by copyright and that is considered a form of property. I am licensed in Texas and and do copyright law. Your husband is not considered an "author". and the resolution would likely be to leave you with the rights to your book and offset that against something else so that the net result is a 50-50 distribution of marital property. If you want this to be your property get the registered work and registration assigned to a third party you trust with your husband also signing so that it is outside the marriage. So, where there's a will there's a way, but not an easy way if your husband refuses to assign his marital interest.

    I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.


  6. As my colleagues note, the physical copy of each artwork, and the copyright in each artwork, is very likely "community property" owned half by you and half by your husband. Upon divorce, if you and your husband cannot agree on who gets to keep the physical copies or the copyrights then the family law court would have to determine what to do with those pieces of property.

    As for distributing the physical copies of the artwork there really is no set rule. The court will determine what it thinks is fair and will rule accordingly.

    As for the copyrights in the artwork there are only a handful of community property states and only a few of them have court decisions that address what to do with a copyright upon divorce. I am unaware of any Texas court ruling on the matter. The link below is to a recent decision by the Supreme Court of Hawaii on the matter which may be of use to you [it discusses all the other relevant court decisions]. The answer the Hawaiian court came to was that the artist spouse continued to own the copyright in his work [copyright is conferred by federal law] but that any revenue earned by selling or licensing that copyright must be divided equally between the spouses. So, for example, under that rule if you divorce you will continue to own the copyright in your artwork but must pay your ex-husband half of the money you recieve should you sell one or more of your copyrights or license the rights to someone else to copy and sell your artwork. A Texas court may come up with a different approach, of course, so only your own family law attorney can properly advise you on this matter.

    The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.

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