The Author's Estate: A Primer for Authors, Executors & Heirs

By Lloyd J. Jassin & Ronald M. Finkelstein 

This article focuses on lifetime planning to ensure the beneficiaries of your literary estate are in a position to take control of your copyrights and legacy.

The control and licensing of published and unpublished works is a tremendous responsibility. Long-term planning is needed because copyrights are long-term propositions. For works published before 1978, copyrights last for 95 years from the date of first publication. For works created after 1977, copyright lasts for the author's life plus another 70 years.

Who will deal with the myriad of issues that arise during the life of a copyright? Read on.

How to Keep Your Work Alive

While you may be able to play catch-up with legal formalities during your life, unless you have a well-drafted will or have created a valid trust (or both) for the benefit of others, you have left the ownership and care of your creative or literary legacy mainly to chance.

John Keat's 1820 Will

Ideally, authors should name a "Literary Executor" in their will.  An "executor" is responsible for settling a deceased person's estate. Among the duties of a General Executor (as opposed to Literary Executor) are contacting an attorney to file a petition for probate of the will; collecting debts owed to the estate; filing for life insurance and other benefits; contacting an accountant (or attorney) to prepare the decedent's final income tax returns, a federal estate tax return, and state estate and inheritance tax returns as may be required; and notifying the beneficiaries named in the will. 

A Literary Executor, as opposed to a General Executor, is the person selected for the limited purpose of managing your published and unpublished after you pass on. The person responsible for keeping your works and reputation alive can be a family member, a trusted business associate, collaborator, agent or attorney, or some combination thereof.

One court described the Literary Executor's role as "requir[ing] a delicate balance between economic enhancement and cultural nurture." Suppose you have made the appropriate provisions in your will. In that case, your Literary Executor will distribute all of the literary property you owned at the time of your death and manage your literary estate on an ongoing basis.  

The Literary Executor, acting on behalf of the beneficiaries under your will (e.g., family members, a designated charity, a research library or archive), will be responsible for entering into contracts for the exploitation of your copyrights and other intellectual property rights; controlling access to unpublished works; collecting royalties; maintaining your copyrights and legacy; and, if called for, donating your letters, unpublished manuscripts, and other literary materials to a library, special collection or historical society. 

Unlike a general executor who gets the deceased's estate ready to distribute, the literary executor's job is not for a limited time.  It is coextensive with the life of the copyright.

Because of the enduring and changeable nature of copyrights (e.g., revised editions, film adaptations, new technologies), the duties of a Literary Executor, or Literary Trustee, projects decades into the future and are ongoing. 

Be forewarned.  Copyrights are complicated. For example, a literary executor is trusted to advise an author's heirs on the process of copyright termination.  The Copyright Act gives an author's heirs the inalienable right to terminate certain agreements made during an author's lifetime - even if those agreements were in perpetuity.  The mechanics of the termination process are astonishingly complex. Notices must be served within a prescribed period.  If the author's heirs miss the window or file an improperly drafted notice, the grant or transfer made during the author's lifetime continues in full force for the life of the copyright.    

Selecting a Literary Executor

A General Executor will often be a spouse or other family member entrusted with the moral and financial responsibility of protecting copyrights, entering into contracts, and guarding reputations. Because of the specialized nature of these responsibilities, you should consider entrusting the care of your papers, existing contracts, and unpublished works to a Literary Executor, who may, or not be, a family member. 

According to DG Copyright Management, a literary executor oversees "the artistic integrity of the work work and upholding the author's intent."  By taking the time to carefully select a Literary Executor, you lessen the likelihood of bitter infra-family disputes over control of your work or work. Family squabbles over copyright control can easily frustrate the ability of scholars, publishers, and producers who want to quote, publish or produce your work.  And, if your final wish is that your unfinished manuscripts go unpublished, you can provide in your will that your Literary Executor destroy your unpublished works after your death. By way of example, Ernest Hemingway (1898 - 1961) made it clear during his lifetime that he did not want his unfinished and unpublished story fragments and manuscripts published after his death. However, since his will was silent on the subject, his estate edited and released not just his early stories but three unfinished novels (one of which was a posthumous collaboration with his son, Patrick). All three were reviewed poorly.

Ideally, your Literary Executor should be someone who understands how the publishing industry works. That person should also be comfortable with negotiating contracts and savvy enough to hire an attorney with appropriate expertise. A Literary Executor should also be someone who will carry out your intentions - even at the expense of your beneficiaries of foregoing untapped royalties. And, since all things come to an end -- including Literary Executors -- you should provide in your will for a replacement when the estate's Literary Executor dies or becomes incapacitated.

Defining the Literary Executor's Duties

Because the duties and powers are not defined by statute, the person drafting your must take great care in describing the scope of your Literary Executor's duties. The powers of a Literary Executor should be as broad and comprehensive as possible, unless, of course, you believe there should be limitations, qualifications, or conditions imposed upon your Literary Executor (e.g., different executors appointed for book publishing and theater-related matters).

In preparing the powers of a Literary Executor, you must consider the following questions: 

• Will the Literary Executor have the sole and exclusive right to make all decisions regarding appropriate publication, republication, sale, license, or other exploitation of your work? Or, should she merely be appointed as an advisor to the General Executor?
• Will the Literary Executor be responsible for preparing unfinished or unpublished manuscripts for publication and seeing those works through publication? 
• Will the Literary Executor have the right to terminate copyright licenses?
• Will they have the power to destroy any letters or papers they believe should be destroyed? 
• In return for their services, will the Literary Executor receive a fee or commission for their services? What is fair compensation? What about reimbursement for expenses? 
• Will the Literary Executor be required to maintain a separate bank account for such monies? 
• Will the Literary Executor have the sole right to sue for infringement of copyrights? 
• Will the Literary Executor have the authority to pay accountants, attorneys, agents, subagents, and others? 
• In the event the Literary Executor is unwilling or unable to perform her duties, what are the provisions for appointing her successor? Or, will the General Executor assume those duties?

While a family member may agree to work for free, attorneys and literary agents will most likely seek a fee of between 10% and 15% for new contracts they negotiate on behalf of the estate. Concerning administering existing contracts, fee arrangements can vary greatly depending upon the size of the literary estate and the responsibilities of the Literary Executor.

The Literary Trustee 

In some instances, an author may create a lifetime (“inter-vivos”) trust and transfer literary assets to the trust. In this case, a trustee will be appointed to carry out responsibilities similar to an Executor. In such instances, the author appoints a "Literary Trustee" who acts in much the same manner as a "Literary Executor" would under a decedent's will. Furthermore, suppose an author names a trust as the beneficiary under their will. In that case, the author must also name, in addition to a Literary Executor, a Literary Trustee (who could be the same person) to continue acting in such a capacity after the literary assets have been transferred to the trusts.

Valuation

Suppose you have accumulated enough wealth so that your assets will be subject to an estate tax upon your death. In that case, the executor will be responsible for valuing all of your assets at that time, including manuscripts, copyrights, and contractual rights derived from the publication and reproduction of your works. The Executor (or Literary Executor, as the case may be) should hire an appraiser with significant experience in appraising -- or valuing -- these interests. Authors with significant estates should meet with their attorney or accountant now to determine whether any lifetime planning can be employed to reduce the value of their estates at their death so that more assets can pass to their heirs.  

(c) 2002 -2022 Lloyd J. Jassin and Ronald M. Finkelstein.

Lloyd J. Jassin, JD, is a licensing, copyright, trademark and media law attorney who represents creators and their producer and publisher partners. He counsels clients on contract, licensing, copyright, trademark, unfair competition, libel, right of privacy, and general corporate law matters. His practice includes drafting and negotiating publishing and entertainment industry contracts, intellectual property due diligence, trademark prosecution, dispute resolution, and litigation. He is a graduate of Benjamin N. Cardozo Law School and is co-author of The Copyright Permission and Libel Handbook (John Wiley & Sons).  He can be reached at 212-354-4442 or via email at Jassin@copylaw.com, or you can visit www.copylaw.org. 

Ronald M. Finkelstein, JD, CPA, is a Tax Partner at Marcum, a nationally recognized accounting firm and national Co-Partner-in-Charge of their Trusts and Estates Practice group. He can be reached at 631-414-4370 or by e-mail at ronald.finkelstein@marcumllp.com, or you can visit his firm's website at www.marcumllp.com)

NOTICE: This article discusses general legal issues of interest and is not designed to give specific legal advice pertaining to specific circumstances. It is important that professional legal advice be obtained before acting upon any of the information contained in this article.

Related Posts 

Copyright Termination 

 

The Future of Publishing: Know Your eBook Rights

 

Do publishers control eBook right to their legacy titles?

"Arguably, yes, but not for much longer."
-- Lloyd Jassin

 

 On September 28, 2010, Publishers Weekly and the Book Industry Study Group held a seminar at the Random House building entitled The Future of Publishing: Know Your eBook Rights.   It was moderated by Jim Milliot of PW.  I was honored to be on the dais with Paul Aiken, Exec. Dir., Authors Guild; Neil de Young, Exec. Dir, Hachette Digital; and  Scott Waxman, Waxman Literary Agency.  The following concerns future technology rights and the threat copyright termination -- and Andrew Wylie -- pose to legacy publishers.

JIM MILLIOT (PW): Great. Thanks very much. Lloyd?

LLOYD JASSIN: If Paul (Aiken) is a glass half full kind of guy, then you’ll slit your wrists after I’m done speaking. (laughter) I’m Lloyd Jassin and I want to thank Publishers Weekly and the Book Industry Study Group for inviting all of us here. Because I’m an attorney, I evoke a lot of hostility so let me lay a little foundation.  

While I am an attorney I also consider myself a part of this industry. I started out in book publishing 25 years ago, originally at St. Martin’s Press, and then Simon & Schuster. I was a director of publicity for a division of S&S that published long-shelf-life branded nonfiction, which was a good idea then and is even a better idea now for a variety of reasons dealing with electronic publishing. So I’m an exile from publishing. I then went to law school and worked in television and syndication distribution, doing a lot of trademark licensing. I’m also an author. I currently have a boutique law firm, and I represent franchise authors, midlist authors, some literary agencies, midsized book publishers, and the like. So I don’t see things just through the eyes of an attorney/advocate, or a publisher/author. I think I see things a little differently. Plus I have a lot of friends in the music business and we all know what’s happened to them.

So if somebody asked me about the future of book publishing, which I think is the subtext of this morning’s discussion, I’d say, to paraphrase one of my music business friends, “the future of publishing is bright, but the future of the ‘Big 6’ publishing industry is cloudy.” I think publishing has always been in disaster mode, and it will reassess and reform and maybe get smaller, but it’ll adjust to the changes. So big publishing is in peril; you don’t need me to tell you that. But I don’t think it’s just the recession, I don’t think it’s just disintermediation. It’s the fact that, in large part, older contracts didn’t contemplate the digital future. That is an error that you can lay at the feet of the publishers, because they drafted those contracts, and future technology clauses have existed for at least a hundred years. I handed something to Paul that he probably is familiar with, which is Mark Twain’s contract, in his handwriting, which talks about future technologies. So it wasn’t that they didn’t know about future technologies. It’s just that the lawyers were asleep at the wheel, in my opinion.

So respectfully, and it’s very respectful because I’m here at Random House, I disagree with Marcus Dohle, Random House’s CEO’s statement that the vast majority of backlist contracts granted Random House e-book rights. I believe he wasn’t speaking just for Random House but for the industry.  Those contracts need to be reviewed on  a case-by-case basis. Some contracts  granted them e-book rights; a lot of them certainly didn’t. But I think whether they did or didn’t may  actually moot, and what I mean by that is, evenif they did grant Random House and Simon & Schuster and their brethren electronic book rights, they have them only for the short term, not the long term. The Copyright Act giveth and it taketh away, and already, and with greater velocity in two years, authors will be able to exercise their statutory termination rights. These are rights found in the Copyright Act that allow authors who didn’t know their worth when they negotiated their publishing contracts 35, 56, 75 years ago, the right to go back and negotiate  a better deal. Is it fair to publishers? It’s really not a question of fairness; it’s the law. And wherever you come out on this issue, the copyright termination provisions of the Copyright Act are going to allow authors to reboot their pre-Internet contracts, and clear up any of the ambiguities regarding e-book in the author’s favor.  So, if the question is, do publishers control e-book rights to their legacy titles?  Arguably they do, but not for much longer.

What happens when the right to reprint classic titles is threatened  is the subject of another evening, but what it comes down to is, agents and publishers disagree on two key issues.  Who controls e-book rights? I think the question’s been answered, whether it’s the Rosetta books decision which Random House lost, or the reversion of rights in favor of  heritage or legacy authors. The historical irony is that 301 years ago, the Copyright Act gave authors the exclusive right to control their writings and other intellectual property and authors in turn gave publishers an exclusive monopoly over their works. The reason authors needed publishers was that publishers controlled the printing presses.  That’s what came between readers e and the writers of the time. Now that the printing press is less important and authors can control their own printing presses, I think we’re going to see a dislocation, a disruption, in the way business has been done for a lot of years.

I did the math and 2013, which is first date rights can be recaptured, is two years, 95 days, and approximately 16 hours from now. That’s when the copyright termination or “contract bumping recapture” first time bomb goes off.  It will threaten publishing’s backlist and all of the books on the backlist that begin with the words “Vintage,” “Classic,” ”Heritage”; titles published 35, 56 and 75 years ago are at risk. When a publisher’s backlist has to be renegotiated, it has profound implications for the industry, and makes authors and publishers reassess their relationship. I think what will happen is old contracts will be renegotiated – publishers will  compromise rather than lose authors. And, it’s generally a good idea to leave the dance with the party you came to the dance with, so while authors have the ability to put a knife to the throat of publishers—it’s the Copyright Act that allows them to do that—I think there’ll be accommodations. If you synthesize  this, agent Andrew Wylie, by settling for a 40 percent royalty on backlist titles for his legacy authors, makes me question his negotiation skill. It could be that Random House had pictures of him in a compromising position in Frankfurt. I don’t know.  Perhaps, he didn’t consult his  attorney before accepting Random House’s offer.  Why?   In in two, three, four years, all the rights he bargained away are going to revert to his authors.  Before long, it’s going to be a 50 percent – or better – deal that authors and agents will be striking.  Maybe Mr. Wylie  got large advances in exchange, and it’s a short-term license, so there are lots of ways that you can work things out. Forty percent wouldn’t look so bad to me if I got several million dollars up front. Money today versus money tomorrow. 

[The full interview will run in the Spring issue of The Authors Guild Bulletin]


Resources

The Copyright Termination Time Bomb

Publishing Doomsday Clock & the Death of the Backlist

By Lloyd J. Jassin

Copyright Termination: A Guide for Authors

The Copyright Act gives authors an opportunity to recapture rights they licensed 35- to 40-years ago. Since an author's termination right cannot be waived, it allows authors to renegotiate the terms of publishing agreements they signed before the true value of their work was known. Some call it "contract bumping."  The termination right trumps written agreements -- even agreements which state they are in perpetuity.  Also known as “termination” or “recapture” rights, the deadline for sending termination notices for 1978 grants will begin to expire in 2011.

To protect authors and other creators of older works from having to live with a bad deal they entered into when they had little negotiating skill or leverage, the Copyright Act allows them (or their families) to recapture copyrights by sending notices of termination to their publisher partners. 

Post 1977 Contracts

Section 203 of the “new” Copyright Act applies to grants of copyrights signed on or after January 1, 1978 by the author -- not grants signed by an author's heirs.  One of the idiosyncrasies of the termination right, is that it does not apply to foreign grants.  However, under UK law, heirs can recapture rights twenty-five years after the death of an author.  Known as British Reversionary Rights, these rights are analogous to our recapture and termination rights.  

"Works made for hire" are immune from termination. Of special concern to heirs is an unsavory practice known as revoke and re-grant.  If you are an heir, be very careful of what you are asked to sign by agents, coauthors, publishers, producers and other copyright licensees and partners.   If it is a revoke and immediate regrant of the rights agreement, you may be signing away valuable rights for less than market rate.    

The Section 203 right of termination focuses on when the copyright grant or license was made.  “Termination may be exercised at any time during a period of five years beginning at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever is earlier.”

The rules that apply to termination are dense and unforgiving. If  you serve a Notice of Termination either too late, or too early, or incorrectly, you have squandered your termination rights.  It's essential the that the Notice of Termination be recorded with the Copyright Office, which must be prior to the date of termination.  You can serve a Notice of Termination as early as ten years before the effective date of recapture, or as late as two years before the effective date of recapture.  The author (or his heirs) selects the date termination will take effect, and must send a Notice of Termination within the termination window outlined in the Copyright Act.

Example: If a songwriter agreement was signed in 1978, the Notice of Termination could be served as late as two two years before the recapture date.   In this instance, 40-years from date of execution would be 2018, which means the notice of termination can be served as late as 2016.

Statutory v Contractual Termination Rights

The right of termination should not be confused with the contractual right many authors have to recapture  book rights when their book goes out-of-print.  When a book goes out-of-print, most book contracts allow the author to request a reversion of rights.  Regrettably, what constitutes "out of print" is not always clear, and responding to written requests for a reversion of rights is not a top priority with publishers.  Unlike out-of-print clauses, which requires the cooperation of the publisher, the statutory termination right automatically vests those rights in the author.      

It Involves Math!#$@!

Calculating the notice and recapture dates are the author's responsibility.  The Copyright Office does not provide Notice of Termination forms.  You must calculate the notice and recapture dates yourself.  It is strongly advised that you consult with a knowledgeable copyright attorney (not a trusts & estates attorney) if you have questions pertaining to termination.  

Death & Termination

The important message is that when an author dies, their spouse, children or grandchildren, even parents or siblings, may be entitled to exercise the recapture rights discussed in this article.   

Recapturing Ownership Rights to Pre-1978 Works

The Copyright Act gives families of deceased authors and composers an opportunity to recapture rights to pre-1978 works as well.  

For example, when the author of an older work dies during the initial 28-year term of copyright, that author’s family has the right to reclaim the renewal copyright, which is a further term of 67 years of copyright protection.  This subset of the Copyright Act also provides for termination at any time during the five year period beginning at the end of 56 and 75 years from the date the copyright was originally secured.  These added opportunities to get back ownership of copyrights exists even if the author assigned his or her renewal term (or devised it by will) to someone other than his family.  What is extraordinary about these rights, is that copyright law also trumps a writer or composer's will.

Example.  Miles Davis, the jazz icon, died in 1991, before the end of the 28th year of copyright of his revolutionary 1970-album Bitches Brew.  Because he died before the 28th year of copyright, his renewal term rights in the song Bitches Brew vested automatically in his heirs -- cutting off a sister and brother mentioned in his will, and severing his ties to his music publisher.  Today, his sons (two of whom were not included in their father's will) and his daughter, jointly control the remaining 67-years of copyright in Bitches Brew and other songs.   Here, Section 203 trumped both Miles Davis' will and his songwriter agreements.   

Similarly, in 1938 Jerry Siegel and Joe Schuster, two young men from Cleveland, Ohio, signed over all of their rights to the Superman character to DC Comics for $130.00 and vague promises of future work. To address this, and similar economic injustices, Congress gave authors (and their heirs) a second chance to strike better financial deals. As a result, starting in 1999, using Section 302 of the Copyright Act, Siegel’s heirs recaptured his rights to the Superman character. Fortunately, you don’t have to be related to a man of steel to reclaim copyrights. The heirs of Jack Kirby, Hank Williams, William Saroyan, Truman Capote, Joe Young, Lorenz Hart, and many others have availed themselves of these valuable rights.

Copyright Estate Planning

The clock is ticking.  Don't miss this opportunity to get your book or song rights back.  Termination notices, which must adhere to complex formalities, must be sent within a narrow window. On January 1, 2013, provided timely Termination Notices are sent (and recorded with the Copyright Office) grants made on January 1, 1978 will terminate.  As a copyright owner, or copyright owner's heir, you must be vigilant. Failure to exercise these rights, or exercise them in a timely manner, can be fatal.  And, if you delay filing your claim, you can be time-barred by the statute of limitations.

If you are thinking about exercising your renewal or termination rights, or need help renegotiating your soon-to-terminate publishing agreement, call us.  We can help you: (i) identify which copyrights are eligible for termination; (ii) determine who is the proper party to exercise those termination rights; (iii) prepare, file and record your Notices of Termination; (iv) assist you recover rights to copyrighted works you thought were irrevocably assigned or bequeathed to others; (v) work cooperatively with your trusts and estates attorney on reopening an estate, or seek monetary damages that flow from a determination of ownership or co-ownership of a legacy copyright.      

The Best of 1978

Select Books

1.  The Stand - Stephen King

2.  Eye of the Needle - Ken Follett

3.  The House of God - Samuel Shem

4.  The Far Pavilions - M.M. Kaye

5.  Holcroft Covenant - Robert Ludlum

6.  Chesapeake - James Michener

7.  If Life Is a Bowl of Cherries, What Am I Doing in the Pits - Erma Bombeck

Select Songs (artist , not composer shown)

1. Is This Love - Bob Marley & the Wailers
2. Le Freak - Chic
3  My Life - Billy Joel

4. Life's Been Good -- Joe Walsh

5. Night Fever - The Bee Gees

6. Miss You - The Rolling Stones

7. YMCA - Village People

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NOTICE: This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances. It is important that professional legal advice be obtained before acting upon any of the information contained in this article.  This article represents copyrighted material and may only be reproduced in whole for personal or classroom use. It may not be edited, altered, or otherwise modified, except with the express permission of the author. 

LLOYD J. JASSIN is a New York-based publishing and entertainment attorney with a special interest in copyright and trademark matters.  He is co-author of The Copyright Permission and Libel Handbook: A Step-by-Step Guide for Writers, Editors and Publishers (John Wiley & Sons, Inc.).  A former publishing executive, Mr. Jassin has written extensively on negotiating contracts in the publishing and entertainment industries, and lectures frequently on contract and copyright issues affecting creators. He may reached at Jassin@copylaw.com or at (212) 354-4442. His offices are located at 1560 Broadway, Suite 400, New York, NY 10036. Visit www.copylaw.org.

(c) 2010. Lloyd J. Jassin. All Rights Reserved.