Thursday, July 18, 2013
Tin Pan Alley composer B.G. “Buddy” DeSylva couldn’t have possibly realized the effect he would have on American law when he slept with his secretary. DeSylva’s adultery spawned a Supreme Court case, which Justice Kennedy recently used to strike down DOMA.
In DeSylva v. Ballentine, Buddy had a child with his secretary but stayed with his wife. After his death, his widow claimed his illegitimate son had no right to renew the copyright of the deceased author, because the 1909 Copyright Act gave this right to the author’s “widow, widower, or children of the author.” His widow claimed “children” meant only legitimate children, but the Supreme Court disagreed, saying California law applied because there was no federal law of domestic relations. Therefore, his illegitimate child qualified under the California law, which allowed illegitimate children to inherit if the father acknowledged them.
Using this logic, the Supreme Court recently recognized the same-sex marriage of Edith Windsor and Thea Spyer, finding because “there is no federal law of domestic relations,” the federal government must defer to the states when defining marriage. Therefore, DOMA could not stand, because it allowed the federal government to ignore that deference.
See David Kluft, “Why Don’t You Marry the Girl?”: How the 1909 Copyright Act Helped Bring Down DOMA, Trademark and Copyright Law Blog, July 9, 2013.