Many music fans have been following the copyright infringement case against the surviving members of Led Zeppelin by the survivors of Randy California, who alleged that Led Zeppelin “stole” the intro to “Stairway to Heaven” from a Spirit song, “Taurus.” While the focus of the litigation has been on the impact to music history if one of rock’s iconic songs was a “rip off,” the litigation does have a family law interest as well.
Last week we wrote a post about intellectual property interests and how to protect them during divorce. The “Stairway to Heaven” case raises an associated question: What if you are married to a spouse who writes a song during the marriage, but after the divorce, that spouse wins a copyright infringement suit arising from that song – can you claim your share of the lawsuit proceeds?
In Missouri, property division is deemed final after entry of judgment; however, if a spouse later uncovers undiscovered property, that spouse can return to court by filing either a motion to divide undivided property or a separate action in equity to do the same (the difference in approach has to do with particular facts, time, and the allegations for why the property remained undivided).
In the case of our infringed song, if the spouse received a payment in exchange for interest in the song, the spouse no longer has ownership and would have no claim in the infringement suit. If the spouse received a share of the rights to the song, the spouse would have to be a named party in the infringement suit. But if the spouse never knew about the song (or it was hidden from her by the composing spouse), the spouse could seek remedies.
Assuming the spouse could proceed, the spouse would have to show why the song rights were not discovered or discoverable at the time of divorce (perhaps the composing spouse lied about ownership or it was not yet recorded or released though definitely composed during the marriage). After meeting this hurdle, the spouse could assert an ownership interest and, if proven to have been composed during the marriage, the court would have to divide this previously undivided asset.
In the case of “Stairway to Heaven,” the spouse of Jimmy Page or Robert Plant at the time would have definitely known about the song, and any subsequent divorce probably waived their interest to the catalogue. But today artists are releasing “from the vault” songs, some of which may not have been part of the catalogue; in this case, the vault release would constitute undivided property.
While a claim to a famous song by a former spouse might be difficult, other claims might not be so challenging in the intellectual property field. For example, if an inventing spouse during marriage develops a new device in the garage of the family home, and someone later steals that idea and brings it to market after the inventing spouse divorces, the former spouse will have a claim to any successful infringement suit brought by the inventing spouse. Another interesting twist – the former spouse helped with the invention but never knew the inventing spouse tried to bring it to market.
As you can see, intellectual property claims can arise years after marriage and still potentially be ripe for family law claims, and you may end up, with a good attorney, “buying a stairway to heaven.”
If you have questions about recovering for undivided or undisclosed property during divorce, contact us – we can help.