Marie Ballentine

From “Why Don’t you Marry the Girl?”: How the 1909 Copyright Act Helped Bring Down DOMA Posted on July 9th, 2013 by David Kluft

After making it big in music,  DeSylva moved from New York to his native California, where he scored soundtracks, produced a slew of Shirley Temple films and worked as a studio executive . Anyone that busy needs a secretary, surely.  In 1939, DeSylva (then 44) hired Marie Ballentine, who the newspapers at the time described as a 23 year-old “vivacious brunette.”  Within months, DeSylva and Ballentine were having an affair and, in 1944, Ballentine gave birth to Stephen Ballentine. DeSylva stayed with his wife but acknowledged Stephen as his child. In 1950, DeSylva died of a heart attack, leaving his widow, his “illegitimate” son and a treasure trove of valuable copyrights that were just coming up for renewal.  A court battle was inevitable.

According to the 1909 Copyright Act, which was in effect at the time, the right to renew the copyright of a deceased author fell to the author’s “widow, widower or children of the author.”  DeSylva’s widow claimed that “children” meant only legitimate children, thus excluding Stephen.  However, the Supreme Court disagreed in DeSylva v. Ballentine, 351 U.S. 570 (1956)  Writing for the Court, Justice Harlan held that, since “there is no federal law of domestic relations, which is primarily a matter of state concern,” the court should defer to California law for the definition of “children.”  Under California law, Stephen, because he had been acknowledged by his father, could inherit his father’s estate.  Therefore, “children” in the Copyright Act included acknowledged illegitimate children, at least if they were from California.