Rodrigue v. Rodrigue ( 2000 )


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  •                       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
    
    
    
         
    1 La. Civ
    . Code art. 2334.
         
    2 La. Civ
    . Code art. 2327.
         
    3 La. Civ
    . 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
    
    
    
          
    4 La. Civ
    . Code art. 2369.1.
          
    5 La. Civ
    . Code art. 2369.2.
          
    6 La. Civ
    . 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., 
    98 F.3d 860
    , 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, 
    143 U.S. 457
    ,
    462, 
    12 S. Ct. 511
    , 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, 
    313 U.S. 1
    , 9, 
    61 S. Ct. 789
    , 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, 
    195 Cal. App. 3d 768
    , 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, 
    490 U.S. 730
    ,
    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, 
    111 U.S. 53
    , 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, 
    184 So. 2d 1
    , 6 (La. 1966).
         20
           Campbell v. Pasternack Holding Co., 
    625 So. 2d 477
    , 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
            Id. at 484 n. 13; In re Stein, 
    508 So. 2d 1377
    , 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
    4 La. Civ
    . Code art. 2346.
          2
    5 La. Civ
    . 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, 
    195 Cal. App. 3d 768
    , 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 
    147 So. 2d 37
    , 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.
         
    28 La. Civ
    . 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
    
         
    29 La. Civ
    . 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, 
    520 U.S. 833
    , 
    117 S. Ct. 1754
     (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, 
    201 F.3d 654
    , 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., 
    505 U.S. 88
    ,
    98 (1992); Hines v. Davidowitz, 
    312 U.S. 52
    , 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, 
    439 U.S. 572
    , 581 (1979) (citing
    United States v. Yazell, 
    382 U.S. 341
    , 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 Brown, 201 F.3d at 660 (citing legislative history).
         40
              See Goldstein v. California, 
    412 U.S. 546
    , 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).
         
    49 La. Civ
    . Code art. 2354 (liable for “fraud or bad faith”).
         
    50 La. Civ
    . 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
    1 La. Civ
    . 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
    3 La. Civ
    . 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