The movie Big Eyes tells the story of artist Margaret Keane, who painted large numbers of paintings of children with yes, large eyes, and her ex-husband Walter Keane, who took credit for the paintings when he sold them. After the Keanes were divorced in 1965, Walter continued to claim credit. Margaret first claimed to have painted the pictures in 1970. In 1984, Walter, continuing to claim credit, suggested Margaret lied about the paintings, saying that she only claimed credit because she must have thought he had died. Margaret sued Walter for slander over the suggestion of lying and won. A key point in the 1986 trial was Margaret’s painting of a new big-eyed painting in the courtroom, a feat that Walter was unable to match.
By now, some readers are probably asking whether, had Margaret claimed credit in the divorce, the question might have been resolved sooner. The answer is probably not. I haven’t been able to confirm whether the Keanes were divorced in California, where Walter lived, or Hawai’i, where Margaret lived, but it probably wouldn’t be heard in divorce in either state, nor in Washington or Oregon.
The primary rights in the paintings that a court would consider in divorce is the copyright, which is treated as a property right. A copyright can be separated from credit for the work. That means that a divorce judge will mostly be interested in the economic value of the copyright, not the question of credit for the painting, unless the credit affects the distribution.
In California, unless divorcing spouses agree otherwise, property acquired during a marriage generally is automatically divided equally and property acquired before the marriage generally reverts to the spouse who brought it in. In Hawai’i, all property may be considered for distribution, and the overriding goal is a fair distribution, primarily based on the economic circumstances.
Washington, like California, treats a married couple as having joint rights in property acquired during the marriage, but it divides property on a fairness basis in divorce. Usually, property from before the marriage would be returned to the spouse that brought it in (unless there is a very significant imbalance that needs to be addressed), and the property acquired during the marriage is divided to result in a fair distribution. This may mean an overall equal division, or an equal division of the property acquired during the marriage, or something in between.
Oregon law has evolved to reach a result closer to California’s through a different legal theory. Spouses do not automatically have rights in all of the property acquired during a marriage, but the law presumes that their contributions, economically or non-economically, are equal. As a result, in divorce, it is usually considered fair to divide the property acquired during the marriage equally and to return property acquired before the marriage to the spouse who brought it in. The main difference from California is that Oregon almost never splits each item, but instead assigns assets to one spouse or the other and tries to result in a fair distribution when considering the totals.
In none of these schemes, however, does the question of who actually contributed an asset acquired during the marriage have much value. As a result, it appears unlikely that the courts in any of these states would have paid attention to the question of who got credit for the paintings, instead leaving the question to art historians. (I admit that I could be wrong about California and Hawai’i.)
The suit that culminated in the courtroom paint-off was something different entirely. Both Margaret and Walter were claiming credit, and Walter had made public statements that effectively called Margaret a liar. At that point, Margaret sued Walter for defaming her and damaging her reputation.
In a defamation suit, it generally is necessary for the plaintiff to prove the defendant made a false statement, or the defendant to prove that the statement was true. In the Keanes’ case, the important statement was the insinuation that Margaret was a liar. That meant that Margaret had to show that she was the artist. She was able to show the origins of the big eyes motif in works as far back as when she was 11 years old, but the clincher was her challenge that Walter duplicate her feat of painting a new picture. (Walter claimed an injured shoulder. The jury didn’t believe him.)
If you have copyrights, patents, trademarks, or other intellectual property at issue in a divorce, you should probably try to document which property existed before the marriage and which was created during the marriage. You also may need to demonstrate the value of the property at the time of the marriage if the question of contributions to increases in the value comes up. You probably won’t need to address the question of who actually created the work, and, of course, it usually isn’t in dispute, but you shouldn’t assume that the rights necessarily will be given to the person who created them if those are the most significant assets.