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The control and licensing of published and unpublished works is a tremendous responsibility.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as opposed to a General Executor, is the person selected for the limited purpose of managing your published and unpublished after you pass on.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

By Lloyd Jassin

Like Madame Curie and Mariah Carey, copyrights and trademarks are sometimes mistaken for each other - the irony is that the fundamental purpose of trademark law is to avert consumer confusion.  

Trademarks protect brand recognition and reputation. They do so by preventing others from copying source identifies such as words, slogans, illustrated characters, series titles, and logos, that allow consumers to distinguish the source of one product or business from another. Copyright law protects original works of authorship, including literary, dramatic, musical, artistic and sculptural works.

While copyrights and trademarks protect different property interests, brand owners can use both to protect their exclusive rights.  Take, for example,  Trix cereal. The way the Trix cereal box is dressed up for sale at your local market, with bright colors and bold graphics, and other branding elements, conjures up an association with General Mills. The body of law that protects the overall look of the Trix cereal box is called trade dress - a subset of trademark law. Trademark law also protects the Trix name, logo, cereal mascot, and the marketing slogan, Silly Rabbit, Trix is for Kids.  

Coexistent with trademark protection, General Mills has in its intellectual property arsenal copyright law with which to protect their cartoonish cereal mascot against unauthorized copying. Currently, enforcement opportunities are available to copyright owners that are not available to trademark owners. Only copyright owners can use the Digital Millennium Copyright Act (DMCA) to have infringing online content removed without resorting to litigation. Internet service providers have a legal obligation to put the content back up if the person tagged as an infringer in a take down notice sends a counter-notice stating they believe the copyright owner is wrong. Unless the copyright owner commences a lawsuit within 10 – 14 days of receiving the counter-notice, the content goes back up. The prerequisite for filing a copyright infringement lawsuit is registration with the U.S. Copyright Office. If you register a work before it has been infringed, you may be entitled to receive statutory damages. If you can prove the infringement was willful, you may be entitled to the maximum amount of statutory damages, which is $150,000.  Otherwise, you might only win actual damages. Statutory damages provide an incentive for brand owners to register their copyrights.

Finally, patent law, another layer of intellectual property, protect General Mills' proprietary process for turning a yummy slurry of "sucrose, fruit puree, and calcium carbonate" into gay little corn puffs in a rainbow of colors. Three legal theories . . . one silly rabbit. 

The Trix rabbit's attempts to use disguise (e.g., balloon seller, Bugs Bunny) and deception to flimflam children into giving him a bowl of cereal are cartoon con games punishable in the court of cartoon justice. However, when deception is used to steal customers from General Mills, that constitutes trademark infringement and unfair competition. 

 ### 

 How to Distinguish Kix from Trix Brand Cereals (Satire)

“Atomic Bomb” ring from a box of Kix cereal? You can't make this stuff up.

 

KIX® has been dedicated to helping kids get a bright start to their day since 1937. - General Mills

 

In 1947, General Mills offered kids a new way to light up their day -- with a Kix (not Trix) atomic "bomb" ring cereal box premium.  Kids would send in a cereal box-top with a small amount of change taped to it, and receive in the mail a Kix Atomic Bomb Ring. Atop the ring was a nuclear warhead that held a secret compartment.  A cold war lens of history found in a box of Kix cereal.

According to the Toy Tales website, after removing the red base of the warhead, kids could look "through [a] toy spinthariscope’s (a device for observing individual nuclear disintegrations) plastic lens while in a dark room [that] revealed flashes of light."      

The ring's instructions read, "you'll see brilliant flashes of light in the inky darkness inside the [ring's secret] atom chamber."  The frenetic streaks of light were caused by polonium alpha particles in the chamber striking the ring’s zinc sulfide screen.  No worries. The traces of polonium, a rare and highly radioactive metal discovered by Madame Curie (not Mariah Carey), only had a half-life of 138 days. 

During WWII, General Mills (not a real general) helped the war effort by working on torpedoes and gun sights for the U.S. military.  As the maker of the quintessential American breakfast and defender of the American homeland, the leap from torpedoes and gun sights in 1944 to atomic bomb rings in 1947 must-have made sense on the page.  

General Mills introduced the borderline confusing Trix brand cereal in 1954 as an alternative to their healthy corn puff cereal Kix.  Their distinguishing characteristics?                                       

Trix is for kids . . . not rabbits.

Once upon a time in America, Kix kids glowed in the dark.

 

 

A Writer's Guide to Copyright Termination

How to Recapture Your Copyrights

Most book publishing agreements signed within the past four decades profess to be forever. However, don't believe everything you read. There's a pro-author loophole in the Copyright Act.  Despite what a contract may say, a five-year window opens up the earlier of 35 years after initial publication or 40 years after contract signing when an author can walk away from a bad deal or attempt to negotiate a better one.  This right is a powerful right that cannot be waived.

Except for works for hire (discussed later), all copyright grants, including book contracts, film option agreements, and music publishing agreements, entered into after December 31, 1977, are terminable.

 

As they say, the devil is in the details. How you calculate the termination date, the form of notice you must send, the timing of the termination notice, and when it must be recorded with the U.S. Copyright Office is frustratingly complex. The consequence of non-compliance with these complex and arcane copyright termination rules is your publisher retains the rights.

 

Grants can be terminated during a five-year window beginning the earlier of 35 years after the date of initial publication or 40 years after the grant date. For example, provided the grant was not made by a will, a December 28, 1990 grant can be terminated as early as 2026 or as late as 2031, provided notice is timely served.

Practice Pointer. A Notice of Termination must contain the effective termination date - a date set by the copyright owner. The notice may be served up to 10-years before the effective date but no later than 2-years before it. The notice must be recorded at the Copyright Office before the termination date selected. If your calculations are off or you fail to record the notice timely, the notice is null. The termination right cannot be waived by contract.

If an author dies before serving their notice of termination, that termination right vests in their spouse (50%) and children (50%). To effect termination, a majority of the author's next of kin must sign the termination notice. Common pitfalls include missing the termination notice filing deadline, submitting notices on behalf of less than a majority of those needed to sign the notice, and failing to record the notice with the Copyright Office.

Except for works for hire, every author contract entered into on or after January 1, 1978, is subject to termination. 

Comment. Filing a Notice of Termination does not mean termination has taken place. It's a waiting game. Notices must be served upon grantees (or their successor in interest) between two and ten years before the actual termination date. If improperly done, the notice will be rejected by the Copyright Office. Finally, the recipient may challenge it.

To put the termination right in perspective, an author's copyright is protected for seventy years after their death. If not exercised, rights remain with the author's publisher or producer partner. It's worth noting that termination rights only apply to U.S. rights. Under what's called the "derivative works exception," derivative works can continue to be exploited after rights revert.  For example, a motion picture adaptation of a book may continue to be exploited after termination.  However, after the termination takes effect, the producer or studio cannot create new derivative works, whether a remake, sequel, prequel, or novelization.  

British Reversionary Rights

The U.S. is not alone in allowing an author's heirs to reclaim rights. Commonwealth Reversionary Rights, which exist in the United Kingdom and in former commonwealth nations such as Australia, New Zealand, South Africa, and Canada, allow an author's heirs to reclaim copyrights. 

Pre-1978 Creative Works

Books and other creative works published 56 years ago are also subject to copyright recapture under a less publicized but equally powerful section of the 1976 Copyright Act. For example, in 2008, the U.S. Court of Appeals for the Ninth Circuit returned rights to the 1938 children’s story Lassie Come Home to the author’s family. Unlike the “35-year rule,” here, the critical date was the date of copyright, not the publication date or date the contract or license was signed. In this instance, Congress thought it was fair to award the additional term of copyright conferred by the controversial Copyright Term Extension Act to authors and their families, not the publisher. Like the 35-year rule, it is the author’s responsibility to understand whether they are eligible to terminate. 

 

Contact attorney Lloyd Jassin, jassin@copylaw.org, tel. no. (212) 354-4442

 

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