When is a dispute about copyright? When is a dispute about community property? A recent federal case in California involving a 1970s divorce, 1960s chart-topping music, and decades of royalty payments recently answered that question.

All I Ever Need Is You

In the 1960s and ’70s, Sonny & Cher were one of the biggest musical groups in the United States. Their monster hit, I’ve Got You Babe, remains a perennial favorite and a consistently good choice for karaoke duets. They hosted a TV show and even appeared in an episode of Scooby Doo. Out of the spotlight, they were married and had a child together.

Sadly, Sonny and Cher parted ways in 1975, although their divorce wasn’t finalized until 1978. They divorced in California. As part of their divorce, they agreed to split royalty payments with ownership of the copyright remaining with Sonny Bono.

What Now My Love

In the years following their divorce, Sonny remarried and went into politics. Cher continued to dominate the musical charts, recently scoring the No. 1 spot on Billboard’s 2023 Top Holiday Albums.

In 1998, Sonny Bono died in a skiing accident. The 50-50 royalty payments continued after his death.

In 2021, Cher filed a lawsuit against Sonny Bono’s widow, Mary. Mary Bono had discontinued the royalty payments, saying Cher no longer had an interest in the payments. Mary Bono based this decision on a provision in U.S. copyright law that allows songwriters and heirs to reassert their ownership after a certain amount of time.

A Lawyer’s Work Is Never Done

Mary Bono based the ending of the royalty payments on U.S. copyright law. In May 2024, U.S. District Judge John A. Kronstadt ruled against Mary Bono, saying the issue related not to copyright law but California’s divorce and community property laws.

Sonny and Cher finalized their divorce in the same year that a major change occurred to the U.S.’s copyright laws and termination rights. Specifically, the change addressed when songwriters or their heirs can terminate a grant or transfer of a copyright.

• For songs released before 1978, songwriters or heirs must wait 56 years before they have termination rights.
• For songs released after 1978, the period of time for termination rights switches to 35 years.

Mary Bono’s ending of the payments relied on the laws relating to termination rights, although she based the decision on when the song was released and not when the rights were transferred, which was 1978. By this reading of the law, Bono had been late in terminating Cher’s rights.

It’s the Little Things

The judge, however, ruled that the copyright laws weren’t relevant in this case. The 1978 divorce agreement didn’t assign Cher any intellectual property rights or even mention copyright. Instead, Cher had a right to the income derived from the copyrighted material.

Going deep into the legal weeds, if the issue is about splitting music income rather than copyright, the controlling laws are California’s community property laws, not federal copyright law. It also means the pre-emption doctrine doesn’t apply.

In the United States, the pre-emption doctrine means that when an issue involves both federal and state laws, federal law trumps, or preempts the state law. In this case, the pre-emption doctrine didn’t apply because the judge ruled that the matter at issue centered on state law.

If the divorce decree had assigned Cher an interest in the copyright, the case would likely be one for federal copyright law. The divorce decree, however, assigned Cher an interest in the income from the copyrighted material. She had no control or ownership over the copyrighted material. Essentially, Judge Kronstadt avoided the copyright question by saying this was instead a state issue about community property.

For those who are confused, instead of copyright, think of this as being about a vacation home. A couple divorced, and the husband retained control and ownership of the vacation home but agreed to pay his former wife 50 percent of the rental proceeds. The ex-wife had no control or ownership over the home, only a right to a portion of the rental income.

It remains to be seen if Mary Bono files an appeal against the decision. For both entertainment and family law attorneys, the case highlights the importance of wording in contracts and divorce decrees.

If you need guidance on intellectual property ownership and royalties, contact Carrie Ward at (856) 354-7700 or cward@earpcohn.com. Carrie Ward has spent years as an attorney focused on copyright and other types of intellectual property law. Her clients include media companies, musicians, filmmakers, and podcasters. With an in-house background at ABC and Entercom Communications (now known as Audacy), Carrie looks at legal issues from the client’s perspective and comes up with answers to help her clients get things done. She regularly serves as outside general counsel for her corporate clients. She has a strong background in advertising and promotions law and has prosecuted thousands of FCC applications of various types.