Revised August 18, 2000
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`_______________________________________
`No. 99-30334
`_______________________________________
`GEORGE G. RODRIGUE, JR. and
`RICHARD STEINER
`
` Plaintiffs-Appellees,
`
`versus
`
`Defendant-Appellant.
`VERONICA HIDALGO RODRIGUE,
`_________________________________________________
`Appeal from the United States District Court
`for the Eastern District of Louisiana
`_________________________________________________
`July 7, 2000
`Before GARWOOD, WIENER, and DENNIS, Circuit Judges:
`WIENER, Circuit Judge:
`Our task in this appeal, before us under Federal Rule of Civil
`Procedure 54(b), is to sort out and reconcile the respective rights
`and obligations of authors under federal copyright law and their
`spouses under Louisiana community property law when those two legal
`regimes intersect. Defendant-Appellant Veronica Hidalgo Rodrigue
`(“Veronica”) asks us to reverse the district court’s ruling that,
`by virtue of copyright law, her ex-husband, Plaintiff-Appellee
`George Godfrey Rodrigue, Jr. (“George”), holds all ownership rights
`in intellectual property that he created during the parties’
`marriage, to the exclusion of any rights she might otherwise have
`
`1
`
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`_______________________________________
`No. 99-30334
`_______________________________________
`GEORGE G. RODRIGUE, JR. and
`RICHARD STEINER
`
` Plaintiffs-Appellees,
`
`versus
`
`Defendant-Appellant.
`VERONICA HIDALGO RODRIGUE,
`_________________________________________________
`Appeal from the United States District Court
`for the Eastern District of Louisiana
`_________________________________________________
`July 7, 2000
`Before GARWOOD, WIENER, and DENNIS, Circuit Judges:
`WIENER, Circuit Judge:
`Our task in this appeal, before us under Federal Rule of Civil
`Procedure 54(b), is to sort out and reconcile the respective rights
`and obligations of authors under federal copyright law and their
`spouses under Louisiana community property law when those two legal
`regimes intersect. Defendant-Appellant Veronica Hidalgo Rodrigue
`(“Veronica”) asks us to reverse the district court’s ruling that,
`by virtue of copyright law, her ex-husband, Plaintiff-Appellee
`George Godfrey Rodrigue, Jr. (“George”), holds all ownership rights
`in intellectual property that he created during the parties’
`marriage, to the exclusion of any rights she might otherwise have
`
`1
`
`
`
`in those creations by virtue of community property law. Agreeing
`with Veronica, we reverse and remand with instructions.
`I.
`Facts and Proceedings
`George and Veronica were married in Louisiana in 1967 and were
`divorced there in 1993. In the absence of an election by them to
`have any other marital property regime apply, the Rodrigues’
`Louisiana marriage effected the “legal regime” of matrimonial
`property,1 establishing between them a community of acquets and
`gains, commonly referred to simply as the community.2
`During the marriage, George became a widely acclaimed, highly
`successful, and very prolific painter. He created numerous
`paintings both during the existence of the community and after its
`termination, a number of which depicted a stylized and easily
`recognizable image of a blue dog. Modeled after the family pet,
`Tiffany, the first blue dog painting was created in 1984. George
`obtained certificates of copyright for some but not all of his
`paintings.
`Divorce terminated the community that had existed between
`Veronica and George throughout their marriage.3 As a general
`proposition, the Louisiana Civil Code provides that, on termination
`
`1 La. Civ. Code art. 2334.
`2 La. Civ. Code art. 2327.
`3 La. Civ. Code art. 2356.
`
`2
`
`
`
`of the community, the property formerly belonging to it becomes
`subject to the provisions governing co-ownership4: “Each spouse
`owns an undivided one-half interest in former community property
`and its fruits and products”5 until partition.6
`Following the dissolution of his marriage with Veronica,
`George and co-Plaintiff-Appellee Richard Steiner, George’s former
`business associate, filed this action in federal court seeking a
`declaration that George is the sole owner of intellectual property
`rights in all the paintings, particularly the blue dog image. They
`also sought to enjoin Veronica from (1) seeking a declaration of
`her co-ownership of those works, (2) making image transfers, and
`(3) suing for copyright infringement. Veronica filed a
`counterclaim in an effort to obtain a declaration that she owns an
`undivided one-half interest in (1) all intellectual property rights
`(including, but not limited to, the blue dog) generated during the
`existence of the community and (2) all post-community artworks that
`are “derivative” of that intellectual property. Veronica also
`sought an accounting for her half-interest in the proceeds of post-
`community use of those copyrights and derivatives.
`After the parties filed cross-motions for summary judgment,
`the district court granted George’s, grounding its decision in
`
`4 La. Civ. Code art. 2369.1.
`5 La. Civ. Code art. 2369.2.
`6 La. Civ. Code art. 2369.8.
`3
`
`
`
`federal copyright preemption of state community property law.
`Veronica filed a motion for reconsideration which the court did not
`address, entering instead an order dismissing all of her claims.
`Veronica filed a second motion for reconsideration which the court
`granted to the extent that the previous order purported to resolve
`all claims of all parties. The court certified the preemption
`issue for immediate appeal pursuant to Rule 54(b) and stayed the
`remaining issues.
`In a scholarly and thorough analysis, the district court
`concluded that, as a matter of conflict preemption, subjecting
`copyrights on works of the author-spouse to Louisiana community
`property law would damage federal interests in national uniformity
`and efficient exchange of copyrights. The court held that, as a
`result of this conflict, the state marital property law is
`preempted and cannot appertain. The court also considered 17
`U.S.C. § 301, the express preemption provision of the federal
`Copyright Act of 1976 (“the Copyright Act” or “the Act”) but
`concluded that it did not apply because Louisiana’s community
`property law does not purport to provide rights “equivalent” to
`those specified by the Act. And the court rejected Veronica’s
`“transfer” argument that, even though § 201(a) of the Copyright Act
`specifies that a copyright “vests initially” in the author at the
`time of creation of the work, it is transferred to the community by
`operation of law immediately following such initial vesting.
`
`4
`
`
`
`In concluding that federal law preempts state law in this
`instance, the district court voiced particular concern about the
`practicability of copyright co-management by spouses. Still, in
`describing problems associated with co-management, the court
`flagged a possible solution: The author-spouse could retain and
`exercise sole management and control of the copyright without
`depriving the non author-spouse of the “more tangible benefits.”
`Instead of so holding, however, the court demurred to Congress to
`decide whether to adopt that approach.
`We are convinced that the district court visualized the
`correct method for reconciling the apparent conflict, but we
`disagree about the need for a congressional fix. We therefore
`adopt the approach considered but rejected by that court, and we
`reverse.
`
`II.
`Analysis
`We review the grant of summary judgment de novo, applying the
`same standards as the district court.7
`George contends that provisions of both the Copyright Act8 and
`the U.S. Constitution9 preempt state community property law,
`
`7 Gardes Directional Drilling v. U.S. Turnkey Exploration,
`Inc., 98 F.3d 860, 864 (5th Cir. 1996).
`8 17 U.S.C. § 101 et seq.
`9 Art. I, § 8, cl. 8 (“The Congress shall have power . . .
`[t]o promote the progress of science and useful arts, by securing
`for limited times to authors and inventors the exclusive right to
`5
`
`
`
`preventing his copyrighted artistic works from ever having become
`property of the community that was created by his marriage to
`Veronica and thereby exempting his copyrights from division and
`partition of the community after divorce. Section 201(a) of the
`Act specifies that a “[c]opyright in a work protected under this
`title vests initially in the author or authors of the work.” In
`facial contrast, Louisiana Civil Code article 2338 declares that
`“property acquired during the existence of the legal regime through
`the effort, skill, or industry of either spouse” is community
`property. George insists that federal law, which specifies that
`the copyrights in the blue dog and other images “vest[] initially”
`in him as the “author,” cannot be harmonized with state law, which
`would hold those self-same copyrights to have been community
`property and to belong now to the two former spouses in indivision.
`He argues that, because, under the Supremacy Clause, state law is
`preempted to the extent that it conflicts with federal law, his
`copyrights are immune from Louisiana community property law.
`We do not disagree with George’s general premise; we do
`disagree, though, with his expansive view of the scope of the
`conflict between copyright law and community property law, and thus
`with the extent of the preemptive effect of such conflict. We are
`satisfied that the conclusion we reach today —— that an author-
`spouse in whom a copyright vests maintains exclusive managerial
`
`their respective writings and discoveries.”)
`6
`
`
`
`control of the copyright but that the economic benefits of the
`copyrighted work belong to the community while it exists and to the
`former spouses in indivision thereafter —— is consistent with both
`federal copyright law and Louisiana community property law and is
`reconcilable under both.
`We begin by delineating the precise scope of the language of
`§ 201(a)10 on which George bases his sweeping preemption theory.
`This subsection pertains only to “copyright,” which, by the Act’s
`own definition at § 106, is a finite bundle of but five fundamental
`rights, being the exclusive rights of reproduction, adaptation,
`publication, performance, and display.11 Notably, none of these
`rights either expressly or implicitly include the exclusive right
`to enjoy income or any of the other economic benefits produced by
`or derived from copyrights.
`Section 201(a) specifies that the copyright “vests” in the
`author. Except in its title,12 this subsection never uses the words
`
`10 17 U.S.C. § 201(a) provides: “Initial Ownership. – Copyright
`in a work protected under this title vests initially in the author
`or authors of the work. The authors of a joint work are coowners
`of copyright in the work.”
`11 17 U.S.C. § 106; H.R. Rep. No. 94-1476 at 61 (1976),
`reprinted in 1976 U.S.C.C.A.N. 5659, 5674.
`12 “The title of an act cannot control its words, but may
`furnish some aid in showing what was in the mind of the
`legislature.” Holy Trinity Church v. United States, 143 U.S. 457,
`462, 12 S. Ct. 511, 513 (1892). “While the title of an act will
`not limit the plain meaning of the text, it may be of aid in
`resolving ambiguity.” Maguire v. Commissioner, 313 U.S. 1, 9, 61
`S. Ct. 789, 794 (1941) (citations omitted). We perceive no
`ambiguity here.
`
`7
`
`
`
`“own” or “ownership,” and the Act does not speak of ownership per
`se or globally, but only in the sense of the five exclusive
`attributes listed in § 106. “To vest” means to give an immediate,
`fixed right of present or future enjoyment; to accrue to; to be
`fixed; to take effect.13 “To own” means to have a good legal title;
`to hold as property; to have a legal or rightful title to; to have;
`to possess.”14 When analyzed in the framework of the Act’s
`inclusion of only five express attributes of ownership while
`omitting, inter alia, the attribute of enjoyment of economic
`benefits, Congress’s reference to immediate vesting of the
`copyright, and not to vesting of ownership, supports the more
`limited construction advocated by Veronica. We agree with her
`insistence that, in and of itself, “vesting” of the copyright and
`its five (and five only) statutorily delineated attributes in one
`spouse does not preclude classification of other attributes of
`ownership of a copyright as community property. Moreover, by its
`very title, § 201(a) addresses only initial —— not permanent ——
`vesting of the copyright in the author. And, even though the
`
`13 BLACK’S LAW DICTIONARY 1563 (6th ed. 1990). We note in passing
`that the use of “vest” in statutes commonly has a temporal
`connotation, indicating the time at which an interest in property
`accrues to its rightful holder, rather than a substantive
`denotation of the nature or scope of the ownership of such an
`interest in property.
`14 BLACK’S LAW DICTIONARY 1105 (6th ed. 1990).
`8
`
`
`
`author’s copyright arises at the moment of creation of the work,15
`the Act explicitly allows for subsequent vesting in non-authors,
`either jointly with the author or subsequent to him by virtue of
`transfer of all or lesser portions of the copyright.16
`True, the copyright “vests initially” in the “author,” and the
`“author” is the “originator,” the “maker,” the person to whom a
`work “owes its origin.”17 We do not question that George is the
`sole “author” of the copyrights here at issue. Neither do we mean
`to suggest that Veronica’s co-ownership interests arise from co-
`authorship. We do conclude, though, that the language of § 201(a),
`providing that a bundle of but five specific rights, those listed
`in § 106, “vests initially” in the author, does not ineluctably
`conflict with any provision of Louisiana matrimonial property law
`
`15 17 U.S.C. § 302(a); 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON
`COPYRIGHT, § 5.05(B)(1), at 5-59 (1998) [hereinafter NIMMER ON
`COPYRIGHT].
`16 17 U.S.C. § 201(a), (d); see Worth v. Worth, 195 Cal. App.3d
`768, 777 (1987) (noting that Act “provides only that the copyright
`‘vests initially in the author’; and nothing is found in the Act
`which either precludes the acquisition of a community property
`interest by a spouse, or which is otherwise inconsistent with
`community property law”).
`17 Committee for Creative Non-Violence v. Reid, 490 U.S. 730,
`737 (1989) (“As a general rule, the author is the party who
`actually creates the work, that is, the person who translates an
`idea into a fixed, tangible expression entitled to copyright
`protection.”); Burrow-Giles Lithographic Co. v. Sarony, 111 U.S.
`53, 57-58 (1884) (“An author in that sense is ‘he to whom anything
`owes its origin; originator; maker; one who completes a work of
`science or literature.’”).
`
`9
`
`
`
`that would recognize that Veronica does have an economic interest
`in George’s copyrights.
`As a useful framework for understanding the Louisiana Civil
`Code provisions on which our holding ultimately rests, we begin
`with general concepts of Louisiana property law. In the Civil Law,
`the bundle of rights that together constitutes full ownership18 of
`property comprises three separate sub-bundles: (1) usus - the
`right to use or possess, i.e., hold, occupy, and utilize the
`property; (2) abusus - the right to abuse or alienate, i.e.,
`transfer, lease, and encumber the property, and (3) fructus - the
`right to the fruits, i.e., to receive and enjoy the earnings,
`profits, rents, and revenues produced by or derived from the
`property.19 In Louisiana, those three facets of ownership may be
`allocated in various combinations among different persons, with
`each having less than full ownership.20 For example, the owner of
`
`18 Both the terms “full ownership” and “perfect ownership”
`appear in the Civil Code articles and in Louisiana case law (at
`least one case also uses the term “complete ownership”) and are
`used roughly interchangeably. We use the term “full ownership”
`here to connote ownership of all three sub-bundles that together
`constitute the bundle of all ownership rights in property. See La.
`Civ. Code 477 (providing that the “owner” of a thing may use,
`enjoy, and dispose of it); Andrew L. Gates III, Partition of Land
`and Mineral Rights, 43 LA. L. REV. 1119, 1129 (1983) (“[P]erfect, or
`full, ownership consists of the right to use, the right to enjoy,
`and the right to dispose of the property.”); see also La. Civ. Code
`art. 478 cmt. b (“Under this revision ownership is no longer
`distinguished into perfect and imperfect ownership.”).
`19 See Giroir v. Dumesnil, 184 So.2d 1, 6 (La. 1966).
`20 Campbell v. Pasternack Holding Co., 625 So.2d 477, 480-81
`(La. 1993).
`
`10
`
`
`
`a legal usufruct (“usufructuary”) has the right to use the property
`burdened with the usufruct (usus) and to enjoy the fruits of that
`property (fructus), but does not have the right to alienate the
`property (abusus); that right belongs to the naked owner, albeit
`subject to the usufruct.21
`When the property in question is a copyright, allocation of
`these attributes of ownership within the community property
`framework, according to the rule we announce today, produces a
`division similar to usufruct but different in combination: The
`author-spouse alone holds the elements of usus and abusus — a
`combination that comprises the exclusive rights to possess, use,
`transfer, alienate, and encumber the copyright as he sees fit —
`free of any management, consent, or participation of the non-author
`spouse.22 Obviously, § 106’s “five fundamental rights” of
`
`21 Id. at 484 n. 13; In re Stein, 508 So.2d 1377, 1380 (La.
`1987); see also La. Civ. Code arts. 538, 539.
`22 We leave for another day the question whether the author-
`spouse, in exercising his exclusive rights to exploit and alienate
`the copyright both during the existence of the community and after
`its dissolution, has some agency or fiduciary-like duty to the non-
`author spouse, such as the duty to act in good faith and not in a
`manner contrary to her interests, akin to the obligation of a
`usufructuary to serve as a “prudent administrator” of the usufruct
`and to “faithfully fulfill” his obligations toward the naked owner,
`see, e.g., La. Civ. Code art. 571, or to the duty of a mineral
`lessee to act as a “reasonably prudent administrator,” even though
`not a fiduciary to his lessor. See, e.g., La. Rev. Stat. § 31:122.
`For reasons that are not apparent to us, neither party has
`invited us to consider Civil Code article 2369.3, which imposes an
`affirmative duty on a spouse “to preserve and to manage prudently
`former community property under his control” and makes him
`“answerable for any damage caused by his fault, default, or
`neglect.” As we do not reach this issue, we merely flag this Civil
`11
`
`
`
`reproduction, adaptation, publication, performance, and display are
`includable harmoniously in the conjointment of usus and abusus in
`the author-spouse. But the community during its existence (and the
`former spouses or other successors after its termination) holds the
`element of fructus, i.e., the right to receive and enjoy the
`economic benefits produced by or derived from the copyright.23 The
`exclusive right of the author-spouse to the abusus of the
`copyright, like that of the naked owner of property burdened by a
`usufruct, is nevertheless subject to the continuing fructus rights
`of the community so long as the copyright remains vested in the
`author-spouse, unless partition should modify the situation.
`With those general Civil Law property concepts in mind, we
`turn next to the Civil Code’s articles on marital property. In
`broadest form, the Code embodies the concept of “equal management”
`of property belonging to the community: Each spouse, acting alone,
`
`Code article and note its congruity with the exclusive management
`approach to copyrights under community property law that we adopt
`today. See also KATHERINE SHAW SPAHT & LEE HARGRAVE, LOUISIANA CIVIL LAW
`TREATISE, MATRIMONIAL ESTATES § 7.20, at 436-37 (1997) (comparing former
`spouse’s duty under § 2369.3 to usufructuary’s duty as “prudent
`administrator”).
`23 See La. Civ. Code art. 551 (defining kinds of fruits:
`“Civil fruits are revenues derived from a thing by operation of law
`or by reason of a juridical act, such as rentals, interest, and
`certain corporate distributions.”); La. Civ. Code art. 2339 (“The
`natural and civil fruits of the separate property of a spouse . .
`. are community property. . . .”). Note that, because the author
`enjoys the attribute of fructus jointly with the non-author spouse,
`the author does not acquire a full ownership of the copyright
`through the civilian doctrine of confusion. See La. Civ. Code art.
`622.
`
`12
`
`
`
`has the right to manage, control, or dispose of community
`property.24 If this general principle were to be applied across the
`board to copyrights created by one spouse in community, however, an
`irreconcilable conflict with the author-spouse’s five exclusive §
`106 rights of reproduction, adaptation, publication, performance,
`and display would result. In apparent recognition that such
`conflicts would likely occur in connection with “movables issued or
`registered in” the name of one of the spouses,25 the Civil Code
`specifies, as an exception to equal management, that such spouse
`alone has exclusive management rights (the combination of usus and
`abusus) but preserves for the spouses jointly the right to enjoy
`the benefits (the fructus) of such property. We conclude that
`copyrights come within the category of exceptional movables
`contemplated by such provisions.26
`
`24 La. Civ. Code art. 2346.
`25 La. Civ. Code art. 2351.
`26 We are cognizant of (and do not necessarily disapprove) the
`“transfer” approach of the California court in Worth, holding that,
`under § 201(a), the copyright “vests initially” in the author-
`spouse at the time of creation, and thereafter, according to §
`201(d), is automatically transferred “by operation of [state
`community property] law,” to the matrimonial community. Worth v.
`Worth, 195 Cal. App.3d 768, 774 (1987). Our approach is consistent
`yet analytically distinct; the author-spouse alone (at the time of
`creation and at all times thereafter, absent voluntary transfer of
`the copyright) is vested with the § 106 five exclusive “fundamental
`rights”; those rights are never automatically transferred to the
`community. The fruits of the copyright, nevertheless, are
`community property at the “very instant” they are acquired. See
`Beatty v. Vining 147 So. 2d 37, 43 (La. App. 1962).
`13
`
`
`
`Numerous examples of exclusive management of community
`property and shared enjoyment of those assets exist: A paycheck
`issued by the employer in the name of the employee-spouse alone can
`be cashed, deposited, or otherwise negotiated only by that spouse;
`yet, the proceeds of the paycheck, representing earnings of one
`spouse in community, belong to the community. Likewise, a motor
`vehicle purchased with community funds but titled in the name of
`one spouse alone can be sold, leased, or encumbered only by the
`named spouse27; yet the proceeds of any such disposition belong to
`the community. And when, during the existence of the community,
`one spouse joins an existing partnership or joins in the formation
`of a new one, the partner-spouse has the exclusive right to
`participate in the partnership and to manage, alienate, or encumber
`that interest; yet the economic benefits — and liabilities —
`flowing from the partnership belong to the community.28
`In concluding that copyrights should be treated the same as
`paychecks, cars, and partnership interests, we rely initially on
`Louisiana Civil Code article 2351 which proclaims that “[a] spouse
`has the exclusive right to manage, alienate, encumber, or lease
`movables issued or registered in his name as provided by law.”
`This right of exclusive management of those kinds of movables is
`not coterminous with the community but continues as long as the
`
`27 See La. Civ. Code art. 2351.
`28 La. Civ. Code art. 2352.
`
`14
`
`
`
`copyright is vested in the author-spouse, even after partition of
`the property formerly belonging to the community is complete.29
`Under Louisiana law a copyright is a “movable,”30 and under federal
`law a copyright is issued or registered in the name of the author-
`spouse.31 In compatible combination, these two systems of law
`provide for the author-spouse’s exclusive management of copyrights
`created during the existence of the community and thereafter until
`completion of the partition of the property of the former
`community, while at the same time ensuring that the non author-
`spouse is not deprived of his or her right to one-half of the
`economic benefits of the copyright.
`The economic benefits that flow from particular types of one-
`spouse assets, including but not limited to cars, paychecks,
`partnership interests —— and copyrights —— can inure to the benefit
`of the community without doing violence to the legal results
`
`29 La. Civ. Code art. 2369.5 & cmt. a (creating exception to
`Civ. Code art. 2369.4). Civil Code article 2369.4 replaces the
`general rule of equal management that exists during the existence
`of the community with the rule that, on divorce, each spouse must
`obtain concurrence of the other to alienate, encumber, or lease
`former community property. But according to Civil Code article
`2369.5, such concurrence is not required for community property
`managed exclusively by one spouse, even after divorce. This
`single-spouse management would continue after partition for as long
`as the copyright remains vested in the author-spouse, unless the
`situation is modified by the partition.
`30 See La. Civ. Code art. 475 (“All things corporeal or
`incorporeal, that the law does not consider as immovables [e.g.,
`tracts of land and their component parts, La. Civ. Code art. 462]
`are movables.”).
`31 17 U.S.C. § 201(a).
`
`15
`
`
`
`intended by the Louisiana Legislature or Congress in providing for
`vesting of title in one spouse only, results designed with third
`parties in mind, not spouses or other co-owners. In the context of
`these clearly established concepts and principles, we conclude that
`federal copyright law does not conflict with, and therefore does
`not preempt, Louisiana community property law to the extent of
`denying the entitlement of the non-author spouse (Veronica) to an
`undivided one-half interest in the economic benefits of the
`copyrighted works created by the author (George) during the
`existence of the community, and of the derivatives of such works
`following its termination.
`In confirmation of this conclusion, we look first to the
`express preemption provision in the Act itself. When we do so we
`reach the same initial conclusion as did the district court, that
`the Act does not mandate the monolithic preemption of Louisiana
`community property law in toto. Section 301(a) of the Act states
`that “all legal or equitable rights that are equivalent to any of
`the exclusive rights within the general scope of copyright . . .
`are governed exclusively by this title.” For openers, “the general
`scope of copyright” is not broad enough to cover the entire body of
`marital property law; that is, copyright law does not occupy the
`entire “field” and thereby totally eclipse all state marital
`
`16
`
`
`
`property law.32 We do not understand George to quarrel with this
`basic premise.
`Indeed, the Copyright Act, in defining the scope of its own
`preemptive effect, expressly acknowledges that state law continues
`to operate unless there is a direct and irreconcilable clash
`between a state law right and an exclusive right under the Act with
`which such state law right is equivalent. Section 301(b) expresses
`that “[n]othing in [§ 301(a) of the Copyright Act] annuls or limits
`any rights or remedies under the common law or statutes of any
`State with respect to . . . activities violating legal or equitable
`rights that are not equivalent to any of the exclusive rights
`within the general scope of copyright as specified by section
`106.”33 To repeat, the only ownership rights that the Act grants
`exclusively to the author are the rights to (1) reproduce, (2)
`prepare derivative works, (3) distribute copies, (4) perform, and
`(5) display the work.34 Among the entire “bundle” of rights
`comprising full ownership of property generally, the preemptive
`effect of federal copyright law extends only to this explicitly-
`enumerated, lesser-included quintet. As those five exclusive
`rights of the author conflict with Louisiana’s general principle of
`
`32 Compare this with ERISA’s total preemption of the field of
`retirement or health benefits in the private sector. See, e.g.,
`Boggs v. Boggs, 520 U.S. 833, 117 S. Ct. 1754 (1997).
`33 17 U.S.C. § 301(b)(3).
`34 17 U.S.C. § 106.
`
`17
`
`
`
`equal management of community property, that principle cannot
`operate. Instead Civil Code article 2351's special exception for
`exclusive management by one spouse applies.
`Notably absent from the Copyright Act’s exclusive sub-bundle
`of five rights is the right to enjoy the earnings and profits of
`the copyright. Nothing in the copyright law purports to prevent
`non-preempted rights from being enjoyed by the community during its
`existence or thereafter by the former spouses in community as co-
`owners of equal, undivided interests.
`The § 301 preemption provision of the Copyright Act was
`intended to accomplish a “fundamental and significant change” in
`the existing state of the law, under which published works were
`governed by federal copyright law and unpublished works were
`governed by the common law of copyright. The new statute
`substituted a single, uniform system in place of the existing
`anachronistic and highly complicated dual system. That goal was
`accomplished in part by specifying a limited preemption which
`trumps only those common law or state law rights that are
`equivalent to federal copyright,35 such as state laws that purport
`to grant copyright protection to particular works. We discern
`nothing in the Act’s plain wording or legislative history to
`indicate that Congress —— fully aware of the existence of community
`
`35 H.R. Rep. No. 94-1476 at 129-30 (1976), reprinted in 1976
`U.S.C.C.A.N. 5659, 5743-44; see also NIMMER ON COPYRIGHT § 1.01(B)(1),
`at 1-11 (citing same and clarifying meaning of “equivalent”
`rights).
`
`18
`
`
`
`property laws in a number of states —— had any intention of
`preempting that entire body of non-federal law as well.36 Our
`conclusion is buttressed by the explicit clarification in §
`301(b)(3), noted above, that the preemptive effect does not extend
`beyond the subject matter of the Act.
`George nevertheless insists in the alternative that, even if
`§ 301 preemption does not apply, “conflict preemption” does because
`designating copyrights as community property would do substantial
`damage to important federal interests.37 In this argument, George
`fails (or refuses) to recognize the jurisprudential corollary that
`“[s]tate family and family-property law must do ‘major damage’ to
`‘clear and substantial’ federal interests before the Supremacy
`Clause will demand that state law be overridden.”38 He attempts to
`bolster his conflict preemption argument by demonizing the
`Louisiana Civil Code doctrine of equal management: If copyrights
`were to be deemed community property, George contends, both he and
`Veronica would have the right, acting alone, to control, encumber,
`or dispose of the copyrights, which in turn would impair federal
`
`36 See Brown v. Ames, 201 F.3d 654, 661 (5th Cir. 2000) (noting
`that case for federal preemption is particularly weak when Congress
`is aware of operation of state law and nevertheless stands by both
`concepts and tolerates whatever tension might exist between them).
`37 Gade v. National Solid Waste Management Assoc., 505 U.S. 88,
`98 (1992); Hines v. Davidowitz, 312 U.S. 52, 67 (1941) (state law
`is preempted if it “stands as an obstacle to the accomplishment of
`the full purposes and objectives of Congress”).
`38 Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979) (citing
`United States v. Yazell, 382 U.S. 341, 352 (1966)).
`19
`
`
`
`interests in uniformity and efficient exchange of rights to ensure
`predictability,39 and in providing incentives to authors to create.40
`George argues that (1) copyrights will not be amenable to efficient
`or predictable exchange if spouses have equal rights to impair or
`dispose of such rights, possibly in conflicting manners, (2)
`predictability and uniformity will not be served if varying state
`laws are applied to copyright management issues, and (3) authors
`will have less incentive to create if they must share the fruits of
`their creative works. His reliance on these three arguments is
`misplaced.
`George’s first contention is negated by our ready recognition
`today that the author-spouse has the exclusive right to manage and
`control the copyright, i.e., to deal with it in any manner that is
`not inconsistent with federal copyright law. This conclusion is
`supported by our acknowledgment that the general rule of equal
`management is pre-empted vis à vis copyrights and by Louisiana
`Civil Code article 2351's provision for the exclusive management of
`movables registered or issued in the name of one spouse. As equal
`management does not apply to copyrights, federal interests in
`predictability and efficiency are not impaired by it. A potential
`purchaser or licensee will still be able to obtain good “title”
`
`39 See Brown, 201 F.3d at 660 (citing legislative history).
`40 See Goldstein v. California, 412 U.S. 546, 555 (1973).
`20
`
`
`
`from the author-spouse alone free of interference from the other
`spouse.41
`George’s second contention does not persuade us that allowing
`differing state laws —— in particular, community property laws that
`differ from state to state among the eight that presently have some
`version of such marital property regimes42 —— to apply just to the
`economic benefit derived from copyrights will somehow damage the
`federal interests in predictability and uniformity. Indeed, the
`Act itself subjects copyrights to varying state laws for other
`purposes. For example, copyrights are expressly transferrable by
`conveyance,43 and such conventional transfers are governed by
`individual,
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