From: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Newsgroups: misc.legal
Subject: Re: A question regarding parentage+royalties..
Date: 24 Jul 92 05:28:08 GMT
Reply-To: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Organization: Amdahl Corporation


Pardon the heavy editting ...

In article <=_bmxvp.ccat@netcom.com>, ccat@netcom.com (Chris Beaumont) writes:

> Since I was 20 or so, I've been aware that my father was a pretty
> well known composer. (He's been dead for over 30 years..)
> About seven years ago,I met my half-brother * * *
> He lives off the royalties from my father's music, (I don't receive
> any of these royalties because I'm an illigitimate child..)
> I have always assumed that I have no right to these royalties,
> because I'm an illigitimate child....(but I have felt I have a moral
> right to at least some of this money...)
> 
> -Anyway, the other day I saw a story in the newspaper about the daughter
> of Hank Williams Jr. Evidently she is in the same situation as I am..
> (didn't find out about her parentage until she was an adult...)
> A NY federal appeals court awarded her 1/3 of her fathers royalties..
> (the rest to be shared by her father's widow and other surviving child..)
> 
> Does this mean that I might have a legal rights to some of the royalties
> to my father's music.I don't want to attempt to take more
> than a portion of this money, but I feel that I should assert
> my position in some way, because even though my brother has promised
> to leave me the royalties when he dies...talk is cheap, and he
> doesn't have a very good track record of keeping promises...
> 
> I live in California, as does my brother.Our father died in 1959
> and his wife died in 1978 or so.Would anyone have anoky{idea who
> would be able to answer this question.Please reply via
> email- since I rarely read netnews.

Okay, first off, I'll post this publicly and forward it to you via email.  
It's quite likely I've made a mistake in the analysis here and someone more 
schooled in this law will correct me.  When (not if) I make a mistake, I'm 
interested in hearing about it; in this case, you should, too, so I suggest 
you track misc.legal for a while.

Okay, second off, I'm not a lawyer, and this is not legal advice.  There's no 
answer here, but just some basic info, for a little bit of grounding.  I 
think that if, after you read this you think you have something to go on, you 
should contact a lawyer, and see if it really amounts to something.

That being said, a copyright (I'm going to assume 1 copyright, rather than 
several, just to keep this simple;  it really doesn't matter if there's one 
or 50000) is like any material object in that it can be sold, assigned, etc., 
be bequeathed by will, or passed by intestate succession (death with no 
applicable will provision).  The statute governing that is 17 USC 201(d), 
which was effective 1/1/78, replacing a nearly identical statute (the former 
17 USC 28, which was added 6/30/47).  I'm assuming that your half-brother now 
owns the copyright; that it was willed from your father to his mother, and 
from his mother to him.  However, I've analyzed it both ways, whether your 
dad had a will or not.  If he flat out assigned the copyright during his 
life, you're completely out of luck, I think.  Maybe if there was a trust "to 
his children" you may get something, but I'm totally ignorant in that area, 
and I'll leave that question to someone else.  You're probably also out of 
luck if the copyright was community property (which it probably was, if it 
was registered during his marriage).

Now, probate law is a state matter, and your rights will vary from state to 
state.  It's going to depend on the probate laws of the state where the will 
was probated.  I'm going to assume California, because 1) you said you and 
your brother both live there, so I'm assuming that was the law that governed  
and 2) because California law is basically the only probate code I've ever 
looked at. 

First, if your dad died intestate (no will):

Under California law, the fact that your parents were not married is not 
relevant: "Except as provided in subdivisions (b), (c) and (d), the 
relationship of parent and child exists between a person and his or her 
natural parents, regardless of the marital status of the natural parents." 
Calif. Probate Code sec. 6408(a). (b) and (c) deal with adoption, (d) deals 
with a parent inheriting from a child born out of wedlock (not the other way 
around, as in your case), so none of those are applicable here.

Assuming your dad died with no will, you should get the "intestate share".  
In California, the wife gets all the community property (and the copyright 
may be community property), no matter what.  As to separate property (which 
is essentially what you father owned prior to marriage), when there are 2 or 
more kids (as in your case) the wife gets 1/3; the decedent's issue 
(children/grandchildren/greatgrandchildren, etc.) taking the remaining 2/3 
according to a long formula that you probably don't care about, but ends up 
in your case with you splitting the 2/3 depending on how many children there 
are.  If just you and your half-brother, you each get 1/2 of the 2/3 (1/3 
each); if, say, there are 4 kids (including dead kids with surviving 
children), you'd each get 1/4 of the 2/3, which works out to 1/6 of your 
father's separate property.  The statutes here are California Probate Code 
sections 6401 (spousal share), 6402 (children's shares) and 240 (how split).

Now, all the above assumes your father had no will.

If your father had a will, and left you nothing:

First off, your parent's marital status is still irrelevant: "'Child' means 
any individual entitled to take as a child under this code by intestate 
succession [that is, section 6408 as I quoted above] from the parent whose 
relationship is involved." Calif. Probate Code s. 26.

Now, a key is whether you were an "omitted child" or not.  That is, whether 
your father knew of your existence, or whether he intentionally did not leave 
you anything.  If he left a will, and deliberately left you out of it, you 
pretty much are out of luck.  You can't force anything out of his will that 
you couldn't have forced out of him during his lifetime.

However, if he left you out of the will because you were born after he made 
the will (California Probate Code s. 6570) you are an "omitted child" unless 
1) he intentionally failed to provide for you in the will and said so in the 
will; 2) he willed most of the estate to your mother or 3) he provided for 
you outside of the will as a "will substitute" (California Probate code s. 
6571).  I'll assume that neither of these three are the case.

You are also an "omitted child" if, at the time he made the will, your father 
believed you to be dead or was unaware of your birth (sec. 6572).  Is that 
the case?

If you are an "omitted child", you are, in theory, entitled to the amount you 
would have gotten if your father had died without a will, which I described 
above. (sections 6570 and 6572).

Note that neither of the above analyses applies if 1) the copyright was 
community property; or 2) it was assigned during your father's lifetime.

And regardless of whether the analysis does hold up, the lapse of time 
between your father's death and now might preclude you from taking anything, 
even if you would have been eligible had you brought your case in 1959.

And of course, what should be needless to say but probably isn't, there may 
be all sorts of details from other areas of law that I haven't even thought 
of.

There are some critical facts that you should find out, or be ready to answer 
if and when you see your lawyer:

1) Was there a will?
2) Where did your father reside when he died (that would probably decide what 
state's intestate succession law applies if he died intestate)?
3) If there was a will, on what date was the will executed?
4) Were you born before or after that date?
5) Did you father provide for you in any way under the will?  If so, that'd 
show that he knew you existed, so 6572 wouldn't apply.
6) Did your father know about you? 
7) Can you prove who your father is?
8) When did you find out about your father's death (and about the value of 
his estate, and how it ended up?)
9) Was the copyright community property?

Another thought just occurred to me: I've described the law as it is today.  
However, most likely, you'll take, if anything, under the laws that were in 
effect in 1959.

Hopefully, you'll get some other advice from other people on the net.  Good 
luck, and let me know how it goes.

 -tc

P.S. There's also a thing in copyright called "termination", which can be 
exercised by a dead author's heirs to terminate an assignment of copyright, 
but it requires a majority of heirs to exercise it.  If it's just you and 
your half-brother, it's not likely to be applicable, to you.  However, for 
what it's worth, your existence may also prevent him from terminating and 
getting a better deal.  Since your father died some 30 years ago, there may 
be several copyrights which are up for termination right now (35-40 years 
from date of execution of the copyright grant).  But the most you can hope 
for is that your half-brother has decided to terminate, and you can get in 
his way to prevent him from terminating the old grant and working a better 
deal now.  Maybe he'll pay you to go along.  This is a longshot, but I though 
I'd include it anyway. (terminations of copyright grant are covered in 17 USC 
203).

Terry Carroll - tjc50@juts.ccc.amdahl.com - 408/992-2152
The opinions presented above are not necessarily those of a sound mind.