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

VERONICA HIDALGO RODRIGUE,                   Defendant-Appellant.
        _________________________________________________

           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



     

. Code art. 2334.
     

. Code art. 2327.
     

. 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



      

. Code art. 2369.1.
      

. Code art. 2369.2.
      

. 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., 

, 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, 

,
462, 

, 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, 

, 9, 

, 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, 

, 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, 

,
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, 

, 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, 

, 6 (La. 1966).
     20
       Campbell v. Pasternack Holding Co., 

, 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
        

n. 13; In re Stein, 

, 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




      2

. Code art. 2346.
      2

. 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, 

, 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 

, 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.
     

. 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

     

. 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, 

, 

(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, 

, 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., 

,
98 (1992); Hines v. Davidowitz, 

, 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, 

, 581 (1979) (citing
United States v. Yazell, 

, 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 

(citing legislative history).
     40
          See Goldstein v. California, 

, 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, non-uniform state contract laws; yet no significant

obstruction     of    federal   interests   has   occurred     to   prompt

preemption.44 In like manner, copyrights are expressly transferable




     41
        NIMMER ON COPYRIGHT § 6A.04, at 6A-26 to -27 (noting that
solution for this “worst disorder” of “co-owner” spouses issuing
rival grants of title to the copyrighted work would be to place
sole management and control in author-spouse).
     42
        See David Nimmer, Copyright Ownership by the Marital
Community: Evaluating Worth, 26 UCLA L. REV. 383, 384 n.4 (1988)
(listing eight states: Arizona, California, Idaho, Louisiana,
Nevada, New Mexico, Texas, and Washington) [hereinafter Nimmer,
UCLA L. REV.].
     43
          17 U.S.C. § 201(d)(1).
     44
       H.R. Rep. No. 94-1476, at 132 (1976), reprinted in 1976
U.S.C.C.A.N. 5659, 5748 (“Nothing in this bill derogates from the
rights of parties to contract with each other and to sue for
breaches of contracts. . . .”).

                                    21
by testamentary disposition or in intestacy,45 either of which is

likely to produce co-ownership of undivided interests in the

copyright among the author’s heirs or legatees.        State law governs

such death-related transfers and the resulting co-ownerships they

produce,     and    does   so   routinely   without   impairing   federal

interests.46       The litigation and management issues arising from

contractual conveyance and post-mortem devolution of copyrights47

has not resulted in obstruction of federal interests leading to

preemption of state law, and we discern no reason why the community

property result we decree today should fare differently.

     As for George’s third contention —— that community entitlement

to the “fruits” of copyrights would lessen the author’s incentive

to create or exploit his works, thereby conflicting with the



     45
          17 U.S.C. § 201(d)(1).
     46
       See Nimmer, 26 UCLA L. REV., at 386-87 n. 13 (noting that
proposition that inheritance of copyrights is governed by state
laws is “to obvious to have spawned litigation”).
     47
        In addition to permitting these two means of copyright
transfer, the Act defines “transfer of copyright ownership” to
include “assignment, mortgage, exclusive license, or any other
conveyance, alienation, or hypothecation of a copyright.”        17
U.S.C. § 101. Even though the Act explicitly prohibits involuntary
transfers by any governmental body or other official or
organization, 17 U.S.C. § 201(e), it specifies that “[t]raditional
legal actions that may involve transfer of ownership, such as
bankruptcy proceedings and mortgage foreclosures, are not within
the scope of [the involuntary transfer] subsection.” H.R. Rep. No.
94-1476, at 124 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5739.
These other types of transfer, like contractual conveyance and
inheritance, are subject to varying state laws, yet Congress has
not perceived any inherent obstruction of federal interests in such
additional modes of alienation, and neither do we.

                                     22
federal interest in encouraging authorship —— we decline to assume

globally that the commercial and economic interests of spouses

during marriage are so at odds that one spouse would be disinclined

to create copyrightable works merely because the economic benefits

of his endeavors would inure to the benefit of their community

rather than to his separate estate.           As for a former spouse’s lack

of incentive following divorce, we perceive the presence of the

proverbial stick and carrot.           To mix metaphors, the carrot is the

half-a-loaf    incentive      of   the    author   to    exploit   pre-divorce

copyrights to the best of his ability rather than shelve them and

receive no benefit whatsoever; the stick is exemplified by the

provision of the Louisiana Civil Code that specifies an affirmative

duty “to manage prudently” former community property that remains

under one spouse’s exclusive control.48                 Indeed, that article

imposes a     higher   duty   on   a    spouse   managing   former   community

property than the Code otherwise imposes on that same spouse during

the marriage49 or on a third party co-owner who is not a former

spouse.50    “The reason for imposing a higher standard of care in

managing former community property is that, after termination of

the community property regime, the law no longer assumes that a

spouse who has former community property under his control will act

     48
          See supra n. 22 (citing La. Civ. Code art. 2369.3).
     

. Code art. 2354 (liable for “fraud or bad faith”).
     

. Code art. 799 (liable for damage “caused by his
fault”); see La. Civ. Code art. 2369.3 cmt. a.

                                         23
in the best interest of both spouses in managing it.”51           Although

we need not and therefore do not reach the question of specific

management duties, we observe that this affirmative duty imposed by

Louisiana law refutes George’s argument regarding a former spouse’s

disincentive to exploit fully a copyright simply because the

economic benefits are subject to community property laws.             We are

convinced that the duty imposed by Louisiana is consistent with ——

not contrary to —— the federal interest in encouraging authorship

and exploitation of copyrights, just as we are convinced that most

if not all authors will continue to exploit their copyrights after

termination of the community rather than cutting off their noses to

spite their faces by letting copyrighted works languish.

                                     III.

                                  Conclusion

     In the end, we disagree with the district court only to the

extent that it held the conflict between Louisiana community

property    law   and   federal   copyright    law   irreconcilable   absent

congressional intercession. We therefore reverse the court’s grant

of summary judgment declaring George alone to be the owner of the

blue dog and other copyrights created during his marriage to

Veronica.    Accordingly, we remand this case, appealed pursuant to

Rule 54(b), for entry of an appropriate ruling regarding Veronica’s


     5

. Code art. 2369.3 cmt. a; see Katherine Shaw Spaht,
Co-Ownership of Former Community Property: A Primer on the New Law,
56 LA. L. REV. 677, 699 (1996).

                                      24
rights     with   respect    to   the    copyrights      and   for    consistent

disposition of all remaining issues still pending before that

court.

     Specifically, we instruct the district court to determine on

remand which copyrights are subject to the rules of community

property law that we announce today, either directly as works

created during the existence of the community of acquets and gains

or derivatively as works created after the termination of the

community but based on pre-divorce works.52 Even though the parties

briefed the issue of derivative works in the instant appeal, the

district court has not yet ruled on it so that issue is not ripe

for our consideration and disposition.              In holding that George

alone is the owner of all copyrights in the artistic works, the

district    court   denied    Veronica’s      cross-motion      for    a   summary

judgment    declaring   her   economic       interests    in   the    copyrights,

including determination of which post-divorce works were derivative

of the artwork created during the marriage.              That ruling, however,

was not certified to be a final judgment ready for appeal under

Rule 54(b). As we now hold that Veronica does have economic rights

with respect to the copyrights at issue, the district court must

determine on remand which works are derivative as well.




     52
        See 17 U.S.C. § 101 (defining “derivative work”), § 103(a)
(providing that subject matter of copyright includes derivative
works).

                                        25
     We    further   instruct   the   district   court,     following    such

determinations,      to   enter      judgment    recognizing    Veronica’s

entitlement to an undivided one-half interest in the net economic

benefits generated by or resulting from copyrighted works created

by George during the existence of the community and from any

derivatives thereof.      Such judgment also must recognize George’s

continued entitlement to the exclusive control and management of

the five rights in such intellectual property specified in § 106,

albeit subject to any duty that he might ultimately be held to owe

Veronica to “manage prudently” all such copyrights and derivatives

thereof under his control.53

     We acknowledge that it is for the state court that has

jurisdiction over judicial partition and settlement of the Rodrigue

community to determine both the proper method for establishing the

value of Veronica’s share of these net economic benefits and the

proper procedure for delivery of that share to her, whether that

be, for example, by (1) an accounting based on the present value of

the appraised fair market value of the fully exploited copyrights

and derivatives during their expected lifetimes, (2) periodic

accountings    and   payments   to    Veronica   as   the   copyrights    and

derivatives are exploited and proceeds are derived from them, or

(3) some other altogether different procedure.54            It follows, of

     5

. Code art. 2369.3.       Cf supra n.22.
     54
       The court is required to apply the detailed rules in La.
Rev. Stat. § 9:2801(4) in partitioning assets and liabilities

                                      26
course, that Veronica may continue to pursue judicial partition of

former community property in that forum.

     Finally, in the interest of judicial economy, we reserve to

this panel limited appellate jurisdiction over this case with

respect to future appeals —— if any —— from judgments rendered by

the district court on remand in implementation of our instructions.

REVERSED and REMANDED WITH INSTRUCTIONS.




formerly belonging to the community to ensure that each spouse
receives property of equal net value.

                                27