Last year, singer Melissa Etheridge promised to love and protect her new partner, actress Tammy Lynn Michaels, until death do them part, but she may not be able to leave her songs to Michaels.
U.S. copyright law discriminates against homosexuals by not allowing songwriters and other artists to determine conclusively who gets the rights to their work at the time of their death. 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.
“It seems that light is being shed on the hundreds of rights that are being denied same-sex couples,” says Etheridge. “My hope is that the American voters will see this discrimination and change it in the future. Until then . . . it sucks.”
Veteran singer-songwriter Janis Ian, who learned of the law a few days after marrying Patricia Snyder, her partner of fourteen years, agrees: “How can the federal government override your deathbed wishes of who inherits your estate? The copyrights and your house are your major assets, and you’re depending on them to take care of your family when you are gone.”
“When I bring this up to my clients, the gay couples are just distraught,” says Nashville attorney Linda Edell Howard. “They’re like, ‘What else is against us?'” Howard says artists may try such creative strategies as adopting their partners or making their partners their executors, but none are foolproof.
Even though Massachusetts now sanctions same-sex marriages and Vermont recognizes gay marriages as full civil unions, the federal government does not acknowledge same-sex unions as true marriages. In fact, Congress passed the Defense of Marriage Act in 1996, which affirms that for all federal rights, including the copyright law, only heterosexual marriages are recognized.
As the presidential election approaches, gay marriage remains a divisive issue. President Bush has urged Congress to vote for a constitutional amendment to ban homosexual marriage, but that movement failed to gain the necessary momentum among the Senate’s Republican members to pass before the November election. Nearly forty states have already banned homosexual marriage.
“Congress certainly needs to consider whether the (copyright) law should be updated,” says Geoff Hull, a recording industry lawyer and professor at Middle Tennessee State University. “Because people these days enter into serious long-term relationships other than by marriage, we need to figure out how to protect those same interests for those couples and their children. You would probably have to amend not only the copyright law, but also the Defense of Marriage Act, which would be a political hot button.”
Rep. Barney Frank (D-Mass.), who is gay, 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.”
Desmond Child, who has written hits for Bon Jovi, Aerosmith and Ricky Martin, was also unaware of the law. “I always assumed that my work and the income from it would pass to my estate and that my estate would then carry out the distribution of it to whoever I specified in my will,” he says.
Currently, all rights to reclaim his copyrights would go not to Child’s
partner, but to his twin sons. “Maybe for their own good my children shouldn’t be getting all of this money if I should die young,” he says. “It doesn’t always end up that you’re friendly with your children, for a lot of reasons. It’s distressing that my wishes may not be carried out.”
Child believes that this is not a gay issue, but a basic human rights issue. “It’s not appropriate that people should have to make those kinds of desperate moves,” he says, when told of partners who consider adopting each other to achieve legal protection. “All people, regardless of race, religion, gender, handicap, appearance of any shape or form, or sexual orientation, should have equal human rights.”