If Taylor Swift writes a song about Travis Kelce during their marriage, is he entitled to anything?
Most of us will never try a case with a billionaire who holds an incredibly large catalog of music written, often obviously, about (or at minimum inspired by) other people. But this fact pattern is worth your attention because its relevance stretches far beyond the famous couple. The same questions apply to any couple arguing over ongoing royalties from writing, creating art, or other copyrightable endeavors. The scale here holds enough absurdity to answer these questions cleanly, thus allowing us normal folk to apply the reasoning to cases with more ordinary stakes.
The question nobody asks until they have to
The ambiguity of the artistic process is crucial here. When creating songs, photographs, or anything artistic, inspiration can come from anywhere. But the line between inspiration, contribution, and legal ownership is critical.
The question here is whether Kelce would receive any royalties if Swift were to write a song about him during their marriage. Let’s suppose that Swift wrote a song that is unmistakably about Kelce, that he was in the room during writing and recording sessions, and that at some point he said something casually that ended up making it into the bridge of that song.
The copyright analysis turns on whether Kelce is the author of the song. He is not, and so he does not have any ownership stake in the song’s copyright, and no court can give that to him. He has no say in whether the song is recorded, pulled from production, or released at all.
What Kelce does hold, however, is a legal interest in any monetary profits that the song makes. This interest has nothing to do with the fact that the song is about him, but exists purely because income generated in marriage is generally considered shared marital property, no matter which spouse earned it. A songwriter’s royalties are income, just as Kelce’s profits from his football career are income. Authorship of a song and entitlement to its profits are separate questions, and should be treated as such.
Being the muse does not make one the author
To begin analyzing our question, we can look at similar cases. Bearing a promising resemblance to our own problem is Maxwood Music Ltd. v. Malakian. This case came out of New York in 2010, and it began in 2005, when Daron Malakian of the band System of a Down gave one of his friends two percent of the writer’s royalties on his song “B.Y.O.B.” He did this because he thought that his friend, Casey Chmielinski (a member of a different band), had said the phrase “communist nation” during a jam session. That phrase never made it into the song, but the phrase “fascist nation” was included in the bridge. Malakian considered the two percent a friendly gift, more symbolic than anything, and he later testified that he did not believe Chmielinski had written any part of the song.
Later, someone in the band’s management filled out a form incorrectly. Because the form drew no distinction between who wrote the song and who had been given a share of the writer’s royalties, the publisher’s database ended up filing a copyright application identifying Chmielinski as a co-author. The error remained uncorrected for three years. By the time it was fixed, Chmielinski had assigned his interest in the song to a British publishing company, Maxwood, that brought suit in federal court seeking a declaration that it owned half of the song.
The case went to trial in 2009, and the court agreed with Malakian: Chmielinski had written nothing. But the court went even further, and this part is relevant to our thought problem. The court stated that, even under the assumption that he did inspire that “fascist nation” phrase, his contribution would still be de minimis, and not significant enough to be a copyrightable element of the song. Single words and short phrases are not copyrightable on their own, and the only shared word in this case was “nation”.
The test used in determining this decision came from Childress v. Taylor and Thomson v. Larson, and it has two elements. First, a co-author must have made an independently copyrightable contribution to the work at hand. Second, both parties must have intended to be co-authors. Applying that framework to Swift and Kelce, the first element fails for the same reason that it failed in Chmielinski’s situation. A phrase that Swift may have picked up loosely from something that Kelce said in the same room cannot be considered an independently copyrightable contribution. The second element also fails when applied here, because courts attempting to establish intended co-authorship look for objective evidence of the intention to share from both parties. Swift may have written the song with Kelce as her muse, but nothing in our hypothetical suggests she credited him, gave him any authority over the finished song, or referred to him as a writer in any regard. Thus, under Childress v. Taylor and Thomson v. Larson, Kelce holds no co-authorship in Swift’s song.
The bar for co-authorship is set intentionally high because co-authorship, and thus co-ownership, is consequential. If someone is found to be a co-author, they hold an undivided ownership interest in the entire copyright, regardless of how small their contribution actually was. This means that a co-author does not need permission from the other authors to grant non-exclusive licenses, make derivative works, or use the work how he or she sees fit. Conversely, each co-owner is subject to a duty of accounting, meaning that any profits from the work need to be split among the co-owners, whether they are involved in exploiting the work or not.
For practitioners, the lesson here is that the risk in this fact pattern comes from the paperwork. Malakian’s two percent was a gift without any intention of extending authorship. What produced three years of exposure and an entire federal trial was the collapse of an intended royalty share into erroneous writing credit. These concepts are distinct, and should be kept deliberately separate from each other at all stages.
Kelce isn’t fully out of luck
Kelce still has a real claim to something here, and this is the part to pay attention to.
Section 201(a) of the Copyright Act says that copyright “vests initially in the author.” What the copyright consists of is set out in Section 106: the exclusive rights to (1) reproduce, (2) prepare derivative works, (3) distribute copies, (4) perform publicly, (5) display publicly, and in the case of sound recordings, to (6) perform the copyrighted work publicly through a digital audio transmission. Six rights are listed here, and none of them touch on the right to receive the income that the work generates.
That absence is where the available case law lives. In Rodrigue v. Rodrigue, a painter, George Rodrigue, sued his former wife after their divorce claiming that the paintings he had made while they were still married were his sole property and fell outside of Louisiana’s community property regime. The district court sided with George, concluding that the federal copyright law preempted state marital property law, and thus left the author of the work with all creations made during marriage. On appeal, the Fifth Circuit reversed. The court looked to Section 201(a) and pointed out that gap we discussed earlier. Those rights, and only those rights, rest with the creator-spouse, and are free of any ownership by the other spouse. The economic benefits appear nowhere in those listed rights, which is precisely what leaves state marital property law free to reach them. Under Rodrigue, any financial gain from a piece of art becomes community property the moment the financial gain is acquired. In other words, when a creator-spouse sells one of their paintings, the proceeds from the sale are community property.
This is the exact distinction that I find useful for any practicing family law attorney to review before working on a case that involves intellectual property. Applied to our thought problem, Kelce has no ownership stake in Swift’s song, and no ability to stop her from destroying the song or releasing it tomorrow. What he does hold, however, is an interest in any income her song generates during their marriage.
Another superstar, and this time the case is real
Another case worth analyzing here was decided twenty-four years after Rodrigue, and it involves a couple with comparable name recognition: Cher and Sonny Bono. A 1978 marriage settlement agreement entitled Cher to half of the receipts from Sonny’s compositions created or acquired during their marriage. After he died, his widow, Mary Bono, terminated his old publishing grants under the Copyright Act and stopped paying Cher. She argued that the copyrights had reverted to the heirs unencumbered, and that Cher’s share had gone with the rest of them.
In May 2024, the United States District Court of the Central District of California disagreed. The settlement agreement never specifically referred to the underlying copyrights at all, and instead, it assigned Cher a right to income generated by the compositions in exchange for the release of her marital claims. This made their agreement a state-law contract—rather than a grant of copyright—out of reach of the Copyright Act’s termination provisions. The opinion quotes Rodrigue directly. Cher’s money survived due to the fact that the agreement touched the money but left the actual rights alone. While this is an unpublished district court decision, the reasoning is nonetheless instructive.
The one thing that might actually be his
The right of publicity in Kelce’s name belongs to him, and no one would try to argue otherwise. Kelce’s ownership of his name, however, does not entitle him to stop someone from writing a song about him, and the reason why is worth noting.
Kelce’s claim in our hypothetical would rest on his right to control the commercial use of his name, and it has two gates that it must clear. The first gate is a statutory one: publicity statutes generally only reach cases for which a person’s name or identity is being used for a commercial purpose, as opposed to an artistic or expressive purpose. Several states have expressly exempted songs, films, and books from the reach of those statutes. Because a song is not an advertisement by any account, most states would end his argument at this first gate.
However, if his argument were to clear that first gate, it would become a constitutional question. A court would have to weigh his interest in controlling his own name against the First Amendment protection that creative work receives. Courts have never fully agreed on how to run that balance, and the Supreme Court unsettled the question further in 2023, when it narrowed one of the leading tests in a trademark case, leaving lower courts to discern how much of it could survive elsewhere.
The closest case can serve as a reference point here is Montgomery v. Montgomery, a case out of Kentucky. Montgomery involved a working musician, Harold Montgomery, who never got his big break, and his son, John Michael Montgomery, who became a well-recognized country music star. When Harold died in 1994, his son released a tribute song, “I Miss You a Little,” along with a music video that included Harold’s recorded voice and photographs of the two of them performing together. Harold’s widow, as the representative of his estate, sued John Michael for violating Harold’s right of publicity.
The Kentucky Supreme Court held that neither Harold’s voice, nor his image, had been appropriated for any commercial profit that warranted a violation under the statutory protections. Music is protected as a form of expression, and a music video does not lose any of those protections simply because it also promotes the song. The exception to that rule applies only when a person’s identity is not sufficiently related to the work that it is being associated with, or when the work is a disguised advertisement. This did not describe John Michael’s tribute song or tribute music video. The court went so far as to state that: “John Michael—without either the consent or approval of Harold’s estate—could have produced a film biography of his father and promoted the film using Harold’s name and likeness without violating Harold’s estate’s right of publicity.”
This argument seems clear cut, but two justices dissented and offered a new perspective. One of them, Justice Keller, objected that the majority had decided a First Amendment question that no one had briefed, since the defendants never raised it at any stage of their case. That was in 2001, and the disagreement he identified has still not been resolved.
In our case, Kelce would probably lose this argument as well. Given the ambiguity and lack of clarity in this area of the law, though, he may have more of a fighting chance than the rest of the analysis would suggest.
Practical takeaways
This hypothetical holds implications for your next client, even one who is not a pop star or happens to be married to one.
First, when dealing with intellectual property disputes between spouses, it is important to separate two questions at the beginning of preparation. First, who actually authored the work? And second, who is entitled to the money that the work generates? In our hypothetical, Kelce is not a co-author of the song, but as Swift’s spouse, he would generally hold an interest in the income it produces during their marriage. That entitlement has nothing to do with the fact that he is the song’s subject, and everything to do with his marriage to Swift. Had they signed a marital agreement that allocated this income entirely to Swift, Kelce would be entitled to nothing.
Second, remember that the economic interest exists during the marriage rather than arising at the end of it. No interest is created by a divorce filing. If your client’s spouse is producing copyrightable work, your client’s interest has begun now. By the time anyone has occasion to count that interest, years of commingled deposits and contributions have usually complicated the count.
Third, if you are drafting a marital agreement for a couple with a spouse who is the author of some product, have these conversations early, and be precise about what the agreement can actually reach. It is significantly easier to allocate income streams up front than to litigate them years later upon divorce or death. Proceeds can, and should, be allocated, but copyright must be left alone. An agreement that tries to convey copyright in works that do not exist yet will run into another problem, one the Second Circuit identified in Peretti v. Authentic Brands Group: a transfer only reaches rights that the signer actually owned at the time of signing, and an author owns nothing in a work that has not yet been created.
When you scale this issue down to its bones, it is a relatively common problem that reaches a client who writes novels, one who is a photographer, or even someone who built software that a former employer still licenses. If there is a product, its author and others can argue over it. The money is always divisible, but the authorship never is. Recognizing the differences is a crucial step to advising clients on either end of the argument.