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The control and licensing of published and unpublished works is a tremendous responsibility.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as opposed to a General Executor, is the person selected for the limited purpose of managing your published and unpublished after you pass on.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.

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Book Review: Modernism & Copyright

The Chicago Manual of Style exhorts writers, editors and publishers to employ fair use “boldly.”  Easier said than done, suggests Paul K.Saint-Amour, editor of this thought provoking collection of essays that focuses on the tension between copyright and modernism.   Fair use, of course, is a doctrine that helps courts avoid the rigid application of copyright law, where rigid application would stifle the very creativity copyright law was designed to promote.  While essential to free expression, fair use is at best, an unpredictable doctrine.  

In the introduction to Modernism & Copyright (Oxford University Press), Saint-Amour, an associate professor of English at the University of Pennsylvania, tells us that his book explores how the “law shapes what is published, studied and canonized.”   Saint-Amour passes that task along to fourteen essayists from diverse fields, who discuss the interplay between copyright, privacy and publicity rights on the one hand, and the progressive agenda of modernists to adapt and borrow freely from others’ works. 

Walt Whitman's Niece

Billy Bragg & Wilco

No one reading this book will likely disagree that the unauthorized use of protected materials to create new art, music and literature is too often automatically thought of as an economic threat to the material that has been borrowed or bent.  The kind of permissiveness the book advocates for is in fact, a preference for a less regulated dialog between past and present – an enhanced ability to mix-and-match that is more in keeping with our digital present than our analog past.   What we lose and what we might gain by freely manipulating the past, can’t be known.  But what is clear from reading the book is how modernistic art, literature and music have been shaped haiku-like by the confines of intellectual property law.  

In a chapter on Ezra Pound, Robert Spoo, a law professor, laments that the general spirit of unpermissiveness and paranoia of the current copyright regime which befuddles and intimidates contemporary artists and authors.   In another era Ezra Pound called copyright “dishonest,” “rascally,” and a “clot” of law.   Unlike Pound who actually worked in a “more permissive and less propertized climate,” today’s artist, author  and composer, sitting in their studio or study, works under much greater pressure – and at their own peril -- to get the law right.   Today, the chilling penalty for getting copyright law wrong is receipt of a DMCA Take-Down Notice, or worse, a call to defend your art or scholarship in court.  Paradoxically, Spoo points out that “Today, the estates of James Joyce, T.S. Eliot, Samuel Becket, William Faulkner and other modernist authors use extended copyrights to discourage or control use of those authors’ works by scholars, critics and others.”  

Creativity is not a self-contained activity observes Celia Marshik, in her essay Thinking Back through Copyright.   Here, the focus is on Virginia Woolf’s feminist classics, A Room of Her Own (1929) and Three Guineas (1938).   She asserts Woolf’s words and sentences were intimately linked (but not in a parasitic sense) to recognizable voices from women’s literature.   “[N]o author works in that room alone,” Marshik points out.   Woolf herself , admitted that “masterpieces are not single and solitary births; they are the outcome of many years of thinking in common of thinking by the body of people, so that the experience of the mass is behind the single voice” (Room 65).   There are echoes here of Mark Twain:  “We have no thoughts of our own, or opinions of our own, we are a compost heap made up of decayed heredities, moral and physical.” 

All of this is background for three chapters on the intersection of copyright law and the law of estates and trusts.  These chapters should be of particular interest to readers of this journal.  Here, the focus is on publishing -- not music, movies or theatre.  Of the three chapters, attorney Mark A. Fowler’s contribution stands out for the clarity of its prose, and prescriptive approach to dealing with literary biography -- writing about the literary lives of writers. 

What makes literary biographies so successful is also what makes them so dangerous to undertake.    They rely on unpublished material and appropriate literary language designed to convey the personality of the writer who is under scrutiny.  This chapter surveys a trio of cases involving quotations from unpublished materials by J.D. Salinger, L. Ron Hubbard, and Richard Wright – a trio of dead authors whose estates harbor animosity against literary biographers.  The three chapters that follow include Carol Loeb Shloss’s essay on her suit against the Estate of James Joyce to adjudicate what constitutes fair use of  unpublished letters, and a pair of illuminating essays by Gertrude Stein’s literary executor (whose non-Joyce-like approach to permission requests is to honor the bohemian spirit of Stein); and Ezra Pounds’ literary executor.  

While following no single line of argument, the essayists would find no issue with the notion that reigning in copyright would expand diversity.   One of the central messages of the book is that copyright is in crisis.   The internet is a major mutation, changing our relationship to content.    Copyright, the book argues, is ill equipped to accommodate creator-publisher-consumers. 

For over 300 years publishing was a top down, multiple uniform copy, “All Rights Reserved,” “No Derivative Works,” “You Buy it You Own it”  industry.  The digital world is not uniform.   It is fundamentally altering our relationship to content by allowing creators to “borrow” and “recast” with near impunity what came before.   While not everything here is above criticism, Modernism & Copyright is a rare interdisciplinary work on the challenging topic of intellectual property.   Refreshingly, its focus is not just whether copyright will survive the digital deluge (a topic of discussion which has gotten old), but what impact copyright has had on the creative process.  

Recommended.   

_______________________________

Paul K. Saint-Amour (ed):  Modernism & Copyright

Oxford University Press, 2011, 381 pp.

Trade Paperback, $29.95

ISBN13: 978-0-19-973154-1, ISBN10: 0-19-973154-3

Lloyd J. Jassin

Originally Published in Publishing Research Quarterly (Springer)