Hollywood Walk of Fame Star for Sonny and Cher

It is unusual to see copyright law or other intellectual property issues in a dissolution of marriage case – the last time we wrote about intellectual property was in 2020, involving the division of Ewan McGregor’s royalties for acting in Star Wars. And like that case, the subject of today’s post also involves a media superstar.

The duo of Sonny & Cher was one of the biggest acts of the 1960s and 1970s, with hit songs and a television show. After their breakup, Cher had a successful Hollywood career while Bono was elected a Congressman from his home state of California.

The couple initiated a very public divorce in 1975, and in their 1978 divorce settlement, they agreed that Sonny would own their music rights but share all revenue equally with Cher. After Bono’s death in a 1998 skiing accident, his widow continued to pay Cher half of the payments.

Copyright Law vs Divorce

I do not pretend to be an authority on copyright law, so will gloss over the details for this post. In essence, federal copyright law provides that under certain circumstances, an artist may terminate a prior transfer or license of their copyright in a work. For more information about this provision, see the U.S. Copyright Office’s page on Termination Notices.

In 2016, Bono’s estate invoked the termination clause to take back Bono’s rights to the song catalog from the publishers. In 2021, Bono’s heirs notified Cher that they would stop paying her royalties owed under their divorce decree.

Cher promptly sued. Bono’s estate argued that the federal copyright statute preempted state contract law, including the MSA or Marriage Settlement Agreement (aka “separation agreement” in Colorado), from the Cher/Bono divorce.

Federal Judge – Divorce Agreement Prevails

Yesterday a federal judge ruled in Cher’s favor, holding that the termination rights in federal copyright law did not defeat Cher’s “contractual right to receive financial compensation” outlined in her divorce settlement:

“Because in granting the royalty and approval rights at issue, the MSA did not refer to a “grant of a transfer or license” of the underlying copyrights, Plaintiff’s rights under the MSA arise solely under state law. Further, because section 304(c) expressly provides that it ‘in no way affects rights arising under any other Federal, State, or foreign laws’ (17 U.S.C. § 304(c)(6)(E))”

Cher v Mary Bono, p.6

Federal law only terminates copyright grants, not the right to share in royalties, and “a right to receive royalties is distinct from a grant of copyright.” This helpful post provides a more thorough write-up of the decision from a copyright lawyer who actually understands this stuff.

The amount of money at stake is substantial—Cher will receive $418,000 in back royalties and continue to receive her half of all future royalties.

This case illustrates the significance of contractual rights and family law over federal law. While the Supremacy Clause of the U.S. Constitution makes federal law supreme over conflicting state laws, absent an express intent by Congress to do so, it does not override state family law or the rights awarded to spouses in a divorce. Or, to put it less charitably to Sonny Bono’s heirs, don’t try to weasel out of a divorce settlement by using technicalities from other areas of the law.

Intersection of Copyright and Family Law

While most divorce cases in Colorado do not involve hundreds of thousands of dollars of royalties, copyright issues do occasionally arise in family law:

  • Royalties count as income when calculating child support (C.R.S. 14-10-115(5)(a)(I)(I)) and spousal maintenance (C.R.S. 14-10-114(8)(c)(I)(I))
  • Intellectual property rights are property that a court can divide as part of a dissolution of marriage.
  • A well-written premarital agreement (aka a “prenup”) will also address copyright and intellectual property royalties.

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