Have you spelled out who inherits your intellectual property? Here are some helpful explanations.This is an update of an earlier blog post (Authors' wills, trusts, and estates), with much new material added.
by Pat McNees
• Estate Planning for Authors (Edward M. McBoyd, YouTube video of Authors Guild webinar, 11-6-19, 1.4 hrs) Pretty thorough legal overview to help you plan for your author's estate.
• Estate Planning For Writers (Matt Knight, Sidebar Saturdays, 12-2-17) The advantages and disadvantages of wills and trusts, whether you need both an executor and a literary trustee, how to structure a literary estate.
• What Happens When An Author Dies. Estate Planning With Kathryn Goldman (Joanna Penn, Creative Penn, 11-23-15) Podcast and text.
• The Death of a Writer (Allison K Williams, Brevity's nonfiction blog, 6-4-19) Who is going to deal with your literary legacy, and what do you want done with your journals, family photos, genealogical research, story notes, complete and unfinished manuscripts, published works (who inherits the copyright?), treasured mementos, social media (wipes? or legacy status?), passwords and account numbers for whoever wraps up your estate? And do you want any old letters or evidence of love affairs preserved or destroyed?
• Death is not the end: the lucrative world of literary estates (Financial Times, 7-25-19) The growth of streaming services, demand for audio books and the globalisation of publishing are a boon for a writer’s descendants.
• Your Literary Estate, Part One: Assigning a Literary Executor (Christopher Klim, The US Review of Books, 2-1-17) "Your heirs will have varying degrees of concern for your legacy, ranging from not-at-all through avarice to sincere compassion for your work. Get control of the process now....Your literary executor would optimally be someone who is both involved in the business of publishing and is familiar with you and your heirs. It could be an editor, agent, or fellow writer. He/She should understand both your work and intentions....Gover knew that his heirs would trust me and my eventual decisions, but I was powerless in managing his literary estate unless it was official. However, I learned that almost no one had information on this topic."
• Your Literary Estate, Part Two: Managing Your Work (Christopher Klim, The US Review of Books, 3-1-17) "Assigning a literary executor is not all about contract negotiation and oversight. It also involves handling your literary papers and letters....For the Eric Hoffer estate, his papers had already been stored at the Hoover Institute, but with regular rights inquiries, it was important to have access to existing contracts in order to help avoid copyright conflicts....In my experience, publishers will be intentionally unhelpful. They have a long history of hiding royalties from authors, as well as assuming rights that they had never obtained. Make sure your literary executor knows everything you do, so he/she can make the best decisions. Slapping a firm letter on a publisher with the power of an informed literary executor is better on any day than filing a lawsuit. The big publishers will out-wait and out-lawyer you every time."
• How to Fund a Living Trust With Royalties (John Stevens, LegalBeagle) A royalty is the right to receive financial compensation for a body of work that is used by a third party (e.g., for songs played on the radio, for books sold). A living trust is a common way to pass those rights at death. The main reason to create a living trust is to avoid probate
• My Life, Their Archive (Tim Parks, New York Review of Books, 5-21-14) 'For the author, needless to say, the lure is money. Large sums can be involved. The Harry Ransom Center at the University of Texas reputedly paid $1.5 million for J. M. Coetzee’s papers. The British Library more modestly gave £110,000 for the manuscripts of novelist Graham Swift, announcing as a special attraction “a tape recording of the answer phone messages he received on the night he won the Booker Prize.” ...But not only money. Any organization that spends a considerable sum on you will also have an interest in promoting your reputation. They don’t want to be accused of having thrown cash at a lemon. So there will be exhibitions, seminars, features of archived material.'
• Final Drafts: Selecting a Literary Executor (Lloyd Jassin and Ronald Finkelstein, CopyLaw.com, 2002) 'A General Executor will often be a spouse or other family member that does not have experience with literary matters. Therefore, you should consider entrusting the care of your papers, existing contracts and unpublished manuscripts to a Literary Executor. Keep in mind that being a Literary Executor can be a lot of work. By taking the time to carefully select a Literary Executor, you lessen the likelihood of intra-family disputes that could result in family members refusing to negotiate for the further exploitation of your works -- preferring instead to retire your copyrighted works from publication....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....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....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.'
• The Works of Merton (letter from Robert E. Daggy and reply by J.M. Cameron, New York Review of Books, 11-22-79) In 1967, on the advice of friends and with the concurrence of his abbot, Merton decided to name Bellarmine College repository for his literary estate.
• Do You Need a Literary Executor? (Susan Spann, Writers in the Storm, 7-15-13) When do you need a literary executor (or trustee) to administer the copyright in your estate? "Copyrights aren’t like houses, or cars, or jewelry—assets which can be readily converted into cash and which require no ongoing business skills. Copyright management requires specialized skills which many heirs do not possess....The copyright management process can be confusing even for one heir and confrontational when many heirs are involved... The literary executor can be one of the heirs, or can be a professional hired (and often paid) to manage the copyrights on your heirs’ behalf....While the general executor’s job may be finished in about a year, the literary executor may continue to manage creative works on behalf of the author’s estate until the end of the copyright term."
• Estate Planning for Your Indie Author Business (Karen Myers, 1-4-19) Estate planning advice for indie authors and micropublishers. "We don't think in terms of key employees, since we haven't got any, but we are ourselves the key employee, and we need to make plans for what will happen when we are no longer able to run our business. And if we've managed to grow large enough to have actual employees, we have the same issues as any other small business. We need a business succession plan."
• Orphan Row Update: Another Living Author, Two Books in Print, Literary Estates Held by Charities, Etc. (Authors Guild, 9-15-11) "Here’s what we can tell you about authors of some of the books that HathiTrust is scheduled to release for downloading by hundreds of thousands of students."
• Bitter feuds, buried scandal: the contested world of literary estates (Leo Robson, New Statesman, 1-2-19) When an author dies, literary estates take over – bringing disputes, fraud and conflagrations.
• The great estate: those global literary brands roll on (Robert McCrum, The Guardian, 3-15-12) The recently deceased Dmitri Nabokov made a fortune from his father's estate, while the houses of Fleming, Tolkien et al are equally at home in the digital age.
• Important. And pass it on... (Neil Gaiman, A Simple Will,10-30-06) Download "A Simple Will" and fill it in for yourself.
• Neil Gaiman on why writers tend to put off writing wills, particularly wills that spell out how their intellectual property should be handled. You can download a template (PDF) of a generic will for U.S. authors but maybe run it by a lawyer, as laws vary by state.
• Writers' wills: a rich legacy for readers (Claire Armitstead, The Guardian, 1-8-14) As a stock of famous authors' final testaments are posted online, we can be glad of the insights they leave to us.
• An end to bad heir days: The posthumous power of the literary estate (Gordon Bowker, Independent UK, 1-6-12) ""On the last day of 2011, the 70th anniversary year of his death, James Joyce's work finally passed out of copyright. It was the dawn of a new age for Joyce scholars, publishers and biographers who are now free to quote or publish him without the permission of the ferociously prohibitive Joyce estate."
• Wills of the Rich and Famous (aka "celebrity wills," posted on Living Trust Network, an estate planning portal). Featured: Warren Burger, Samuel Clemens (Mark Twain), Princess Diana. Walt Disney, Doris Duke, Elizabeth Edwards, Henry Fonda, Benjamin Franklin, Clark Gable, James Gandolfini, Katherine Hepburn, Whitney Houston, Michael Jackson, "Shoeless Joe" Jackson, Thomas Jefferson, President John F. Kennedy, John Kennedy, Jr. and more.
• Famous wills 1552-1854 In 2014, the National Archives (UK) brought online this collection of documents that will delight biographers and historians. Among them, the wills of William Shakespeare, Jane Austen, Admiral Lord Nelson, Dr. Samuel Johnson, John Donne, Sir Francis Drake, William Congreve, Samuel Pepys, William Penn, George Frederic Handel, and William Wordsworth.
• Guest-blogging on Writers in the storm, Susan Spann (author of the popular Shinobi Mystery series, published a series of pieces advising on authors' estate planning and authors' trusts, under the Publaw theme (where you can find more of these). I link to some of them here:
--- WHO WILL YOU TRUST? Wills in Author Estate Planning Susan Spann, guest blog on Writers in the Storm, 5-10-13).
---Who Inherits Your Copyrights? (4-22-13)
---Do You Own Your Copyrights? (Susan Spann, 1-10-14)
---Do You Know Your (Copy) Rights? (Susan Spann, 12-13-13)
---Who Can an Author Trust? Trusts in the Author Estate Plan (6-14-13).
---Do You Need a Literary Executor? (Susan Spann, 7-15-13)
--- How to Choose a Literary Executor (Susan Spann, 8-9-13)
---But What Does a Literary Trustee DO? (Part 1) (Susan Spann)
---Trust The Process: Literary Executors, Part 2 (Susan Spann)
• Rights and Royalties Management, Licensing,
issues about and problems with authors' and artists' estates. What happens to works after authors die. (Writers and Editors, Copyright, work for hire, and other rights issues)
• SFWA runs two helpful lists (which cover more than genre fiction writers):
---Estates Contact Information
---Estates we’re looking for
• Literary estates administered by The Society of Authors (UK)
• Wills, Probate and Trusts For Writers (H.S. Stavropoulos, author of crime fiction with a Greek-American flavor)
Now some stunning photographs:
• 15 Famous Authors’ Beautiful Estates (Emily Temple, Flavorwire, 1-24-12) Photos of the beautiful homes of Anaïs Nin, Edith Wharton, Ernest Hemingway, Evelyn Waugh, Gore Vidal, J. K. Rowling, Kurt Vonnegut,Vladimir Nabokov, Mark Twain, Stephen King, Robert Graves, Victor Hugo, Eudora Welty, William Shakespeare, Frederick Douglass.'
• 18 Famous Authors’ Houses Worth Seeing (Nick Mafi, Architectural Digest, 10-4-19)
What other resources are helpful? Tell me about experiences you've had or know about that it might be helpful for others to know about -- particularly problems to avoid or minimize.
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