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The control and licensing of published and unpublished works is a tremendous responsibility.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.
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| John Keat's 1820 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as opposed to a General Executor, is the person selected for the limited purpose of managing your published and unpublished after you pass on.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into contracts for the exploitation of your copyrights and other intellectual property rights; controlling access to unpublished works; collecting royalties; maintaining your copyrights and legacy; and, if called for, donating your letters, unpublished manuscripts, and other literary materials to a library, special collection or historical society.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?
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.
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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