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https://twitter.com/richgel999/status/1334061416433807360

This Twitter thread raised an idea I'd never heard before: that in a marriage intellectual property is jointly owned by the spouses, which could prove complicated in divorce, and make an open source license invalid if it wasn't made with the consent of the spouse.

Is there any legal merit to this idea, that without any explicit agreement (or a prenup) your spouse will own half the IP that you create? Do any countries' copyright laws explicitly discuss this situation, or is there any relevant case law?

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  • His thread starts out with "if I were a family law attorney"... It also seems to think that one spouse can later decide to revoke an open source license or invalidate it. Really all a divorce court will do is order equitable offsets for the value and the IP will be retained by it's creator.
    – Ron Beyer
    Dec 3 '20 at 1:20
  • an open source license also is irrevocably granted, which is enforceable.
    – Trish
    Dec 30 '20 at 18:22
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    @Trish: If it is legally granted. Now according to one answer, any copyright holder on their own can grant a license. Now if the one who didn't write the code published it as open source, that could be different.
    – gnasher729
    Dec 30 '20 at 22:28
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That is the case in the state of Washington, for example. All property acquired during a marriage is considered community property. This can make things complicated since there are state-specific rules that can arise in case of a divorce (Enovsys LLC v. Nextel Communications, Inc: the couple declared no community property at the time of the divorce, meaning the wife who was not a party in in infringement case, had no standing – and therefore the infringement suit could procede). This page goes into details. There are 9 US states with community property regimes: it is also the law for Sweden, Germany, France and Italy.

In the US, permission from one author is sufficient to constitute "having permission" w.r.t. copyright: an owner of the copyright can license the work, and you do not have to get permission from all owners. This does not invalidate an open source license: spouse 1 can grant such a license even if spouse 2 refuses to grant such a license.

Rodrigue v. Rodrigue, 218 F.3d 432 partially answers the question in Louisiana specifically w.r.t. copyright. A lower court held that the state-specific quirk of giving a non-author an equal interest in copyrighted IP must be swept away in the interest of uniformity of federal law. The lower court indeed rejected an argument based on 17 USC 301 which declares federal law to be superior to legal or equitable rights that are equivalent to that set out in Title 17: but community property law is not equivalent to Title 17, it's much broader. The higher courts reasoning is a tall wall of words which boils down the their conclusion that "we disagree with the district court only to the extent that it held the conflict between Louisiana community property law and federal copyright law irreconcilable absent congressional intercession", and having found a way that didn't involve Congress, they declared the work-creator to be the sole owner of the IP created during the marriage. See also the myriad citations contained therein. What this case in particular shows is that the specifics of the states community property laws will have an effect on how a courts would rule on such an IP question.

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    Washington can't do copyright law, that is only in the power of federal law. And in Germany, the Urheberrecht is not transferable but through inheritance - and no, married couples do not automatically grant a license to use and exploit to their partners there.
    – Trish
    Dec 30 '20 at 18:01
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... any countries' copyright laws ...

Here in Germany, we don't have a "Copyright" but an "Urheberrecht".

One of the main differences is that the "Urheberrecht" does not define the copyright as some kind of (negotiable) property which is owned by some person or company;

instead, it defines that as long as the person who created some work is alive, he or she has the exclusive rights on this work (e.g. the right to allow or forbid somebody to copy the work).

So you definitely do not have any rights on the work created by your spouse.

(Neither after a divorcement, nor while you are married.)

And if you have the copyright of some work in one country (e.g. the USA), this does not automatically mean that you have the copyright in another country, too:

Take the picture of the monkey "Naruto" as an example...

So even if the married couple in your example lives in the USA, they are US citizens and they share the copyright in the USA, only one of the two spouses (the one who actually created the item) has the copyright in Germany.

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