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June 21, 2011

Time’s Wingéd Chariot
Posted by Jim Macdonald at 04:43 PM *

Summer now. We’re half-way through the solar year. This isn’t a topical post, or apropos anything. It isn’t an anniversary. But I think I should mention the need for writers to make wills, and particularly to name a literary executor.

Neil Gaiman wrote on the subject shortly after the death of Mike Ford.

John M. Ford was pretty much the smartest writer I knew. Mostly. He did one thing that was less than smart, though: he knew he wasn’t in the best of health, but he still didn’t leave a proper will, and so didn’t, in death, dispose of his literary estate in the way that he intended to while he was alive, which has caused grief and concern to the people who were closest to him.

He’s not the first writer I know who didn’t think to take care of his or her posthumous intellectual property. For example, I knew a writer — a great writer — separated from and estranged from his wife during the last five years of his life. He died without making a will, and his partner, who understood and respected his writing, was shut out, while his wife got the intellectual property, and has not, I think, treated it as it should have been treated. These things happen, and they happen too often.

Neil includes a handy template.

There’s more discussion of the issues involved here: Final Drafts.

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  • Will the Literary Executor be responsible for preparing unfinished or unpublished manuscripts for publication and seeing those works through publication?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 she have the power to destroy any letters or papers she believes should be destroyed?
  • In return for her services, will the Literary Executor receive a fee or commission for her 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 copyights?
  • Will the Literary Executor have the authority to pay 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?

I note that I’m as remiss as any. My current will dates from when I was a young Naval officer with just one child and had no thought of becoming an author. (Or, had thought of it and dismissed the possibility.) I’ll fix this soon.

The entire issue seems to be one where seeking qualified professional help would be a good idea.

Comments on Time's Wingéd Chariot:
#1 ::: Julia Jones ::: (view all by) ::: June 21, 2011, 05:47 PM:

Please also give consideration to what would happen if you were temporarily or permanently incapacitated in a manner that left you unable to deal with contracts. (As those who read my LJ know, this is an issue I am having to consider on someone else's behalf at the moment.)

#2 ::: Sophie ::: (view all by) ::: June 21, 2011, 05:59 PM:

It's not entirely untopical (atopical? irrelevant? out of left field, anyway), what with the latest news about Sir Pterry and the arrangements he's making for, shall we say, leaving early to avoid the rush.

That said, considering the above, I have no doubt he has made or will make arrangements with a Literary Executor who will absolutely do their damndest to do right by his work.

#3 ::: Will "scifantasy" Frank ::: (view all by) ::: June 21, 2011, 06:26 PM:

When seeking professional help, also remember that trust and estates are, like so many other issues, administered on a per-state basis. Be sure your drafter is familiar with the laws of your state (as defined as the state in which you are a primary resident, or domiciliary), especially concerning the formalities needed to establish a will's authenticity, the intestacy rules, and what's presumptively invalid. I know, it seems obvious, but Nina Zagat found out the hard way that this isn't something you can fake...

#4 ::: Bruce Cohen (Speaker to Managers) ::: (view all by) ::: June 21, 2011, 06:40 PM:

Also note that in some states, and in some cases, it's possible to arrange an estate so that some or all of the bequests don't have to go through probate. This can save months of waiting at a time when settling the estate can cost both money and the time and patience of the beneficiaries. Again, this requires the attention of an expert in the local legal situation.

And as Eva and I have just seen this month, it's best to keep your beneficiary assignment up to date. There is a default division of an estate to beneficiaries, but it may not be what you want, and even if it is now, it may not be at some future date. So now that we have a grandchild we've changed the beneficiary assignment to specifically include grandchildren, rather than just divide among surviving children.

#5 ::: Josh Jasper ::: (view all by) ::: June 21, 2011, 06:48 PM:

From what I understand, Readercon is planning to have a panel on this very topic, and hopefully, some smart person will record it and put it online. I think (but am not sure) that there will be An Actual Lawyer on the panel.

#6 ::: David Harmon ::: (view all by) ::: June 21, 2011, 08:14 PM:

And I'll bring up a question I've asked fruitlessly before: Who does get profits from sale of those T-shirts etc. with Mike Ford's poems and such on them?

#7 ::: Lioness Elise ::: (view all by) ::: June 21, 2011, 08:52 PM:

David, as far as anyone knows, the recipients of any such money would be Mike's heirs. Since the will he made assigning such things and disinheriting his blood family was invalid, the default meant that his family inherited. Whether or not they are maintaining the site is unknown to me; you could ask them, but last I heard they weren't replying to any inquiries.

It actually might be even more complicated than that, because while they may be the heirs to Mike's t-shirt emporium, they don't actually own the copyrights to most or all of the things on those shirts. Text first published on Making Light or Electrolite under the old copyright notice actually belongs to Patrick and Teresa; text first published on io.com similarly belongs to Steve Jackson. Steve and I have discussed doing a benefit chapbook; more if and when that happens.

As Mike's aunt Jane said, "Make your will. "

#8 ::: Teresa Nielsen Hayden ::: (view all by) ::: June 21, 2011, 09:09 PM:

Given a choice of heirs, pick the one who knows something about writing and publishing. You know all that weird stuff nonwriters think about writing, books, the industry, probable income, and so forth? Now imagine them negotiating your side of every deal that comes along.

For added effect, imagine that they divorce and remarry twice after you're gone, the perfectly dreadful stepchildren inherit everything, and your literary estate gets tied up forever in the feuding between the subfamilies.

#9 ::: Ginger ::: (view all by) ::: June 21, 2011, 09:28 PM:

Amen to this. One of the first things we had to do in the process of adopting our son was to get our wills and other Important Family Documents in order. They're all still in effect, even though we're separated. I expect we'll eventually change some of them -- the health care proxy, for example -- but the majority of them were set up for his future.

#10 ::: Sandy B. ::: (view all by) ::: June 21, 2011, 10:28 PM:

I'm starting to write up a rough draft will. I have some stuff and I know at least three people who didn't make it to my current age.

What is the industry standard for executing a living will? Is there a standard phrase like "irreversible brain death" ? I'd hate to get it wrong one way or the other.

#11 ::: B. Durbin ::: (view all by) ::: June 22, 2011, 12:32 AM:

Further piece of advice: If the will isn't accessible, for practical purposes it doesn't exist. My mother had to be the executor for her best friend's estate. He had a will; nobody ever found it. As far as we can tell, she followed through with what he would have wanted, but I have no idea what happened with the literary bits (published and non-.)

Which is a shame, because I'd really like to see "The Hollywood Hills of Madness" see print.

Incidentally, this is why I can point to a T-shirt I own and say, I inherited this. As in "somebody died and all I got was this lousy T-shirt."*

*I know he would have loved me saying that, too.

#12 ::: John Mark Ockerbloom ::: (view all by) ::: June 22, 2011, 10:01 AM:

Is "literary executor" actually a term of law? The reason I ask is that my general (non-lawyer) understanding is that executors only have power over your estate for a limited time period. Basically their job is to distribute your property to your heirs, in accordance with your will and applicable law. They safeguard your property while distribution and other obligations of the estate are pending, but once that's all resolved, they're out of the picture.

If you want someone to manage your literary legacy over the long term, and you don't trust the people who actually inherit your copyrights to handle that, then I'd think what you'd want would be a trustee rather than (or in addition to) an executor.

And since a trustee's supposed to work on behalf of the actual owners of the property, subject again to the law and what's stated in the will or trust documents, it's still important to specify exactly who inherits your copyrights, and not just who's the executor or the trustee. In the case of the low-quality unpublished Hemingway novels mentioned in one of Jim's links, if the copyright-owning heirs would benefit from publishing them, then the trustee might still have to go with their wishes even if he thinks that Hemingway would have preferred them to stay unpublished (but wasn't clear about this in his will or trust charter).

So, I'd agree with Jim that you should definitely consult a professional if you think you're going to need someone like a literary executor: setting up the proper executor and trust arrangements may well get complicated. On the other hand, if you don't expect that major decisions on copyright will have to made right after your death, and you trust the person(s) that you want to benefit from your copyrights (either to manage them on their own, or to know to engage a competent manager), it may be sufficient just to explicitly leave your copyrights to them in your will.

#13 ::: Bruce Cohen (Speaker to Managers) ::: (view all by) ::: June 22, 2011, 02:19 PM:

You should consult a legal export even if you don't think you have an exceptional situation such as copyrights or patents, because the law varies all over the lot from state to state, and legal terminology is full of phrases that sound obvious to a layperson but have legal meanings and consequences that are very counterintuitive to those of us without legal training and experience. This is especially true if you're trying to set up a living will or some sort of trust, because much of the law in that area is still in flux; there's still a third group involved in that: doctors and hospital administrators, who have very different views from their patients.

As an example, my brother-in-law is a very smart and well-educated man; he's a professor of physics with degrees from both Harvard and Yale. Yet when he was appointed executor of his parents' wills, and had to administer his father's bequests, he found himself completely at sea, and ended up making some decisions by default that were probably suboptimal1.

1 One particular situation involved the bankruptcy and purchase of the assisted living home his mother is living in; their apartment was purchased and held as part of the estate, and his failure to deal with the legal issues in a timely manner probably cost the entire purchase price, as the purchasing entity absolved itself of all previous debt. It didn't help that the original owner was a company established to provide services to conservative and orthodox Jews, and the purchaser was a Protestant Christian organization; most of the original services (pun intended) were dropped, including the kosher kitchen.

#14 ::: Steve with a book ::: (view all by) ::: June 22, 2011, 02:24 PM:

A copyright question that's been bugging me for a while... I've noticed that for some values of $famous_author, the copyright page declares the copyright to be held by both $famous_author and $significant_other_of_famous_author. I'd always assumed this was something boring to do with tax, but then I wondered whether it was a way of possibly extending the period of copyright protection of the work. (Copyright in most jurisdictions seems to last x years after the death of the last co-author, so if your spouse outlives you, this trick keeps the rights in the family for longer).

If this is the case, how far could you stretch it? Could $aged_author name his or her ten-year-old grandchild as a co-author and thus keep copyright protection on the work for an enormous length of time?

(If life expectancy and copyright terms keep getting longer there are going to be some ghastly legal battles about rights in the 22nd century...)

#15 ::: Steve with a book ::: (view all by) ::: June 22, 2011, 02:28 PM:

(Of course many books are genuine collaborations between spouses! But I was curious about those books where there's a single author on the cover and spine, and author + author's S.O. in the copyright statement).

#16 ::: abi ::: (view all by) ::: June 22, 2011, 02:39 PM:

B Durbin @11:
Further piece of advice: If the will isn't accessible, for practical purposes it doesn't exist.

We made wills when we bought our house here in the Netherlands, and found they have the sort of clever system that's only really possible in a small country.

The originals of our wills are held by our attorneys. A note of this fact has been sent to a central registry of wills in Den Haag (we are identified by name and date of birth). If we make new wills, the attorneys who make them will forward the information that they did so to the registry, which will update the record of who's got our paperwork.

If we die, all our executor (who knows he's our executor) has to do is contact an attorney with this very basic information. Said attorney will then forward a query to the central registry. Back will come the address of the attorneys where the wills are held.

(If we leave the country and make wills elsewhere, I'm not sure what we do. Talk to a lawyer, I suspect.)

#17 ::: thomas ::: (view all by) ::: June 22, 2011, 02:46 PM:

Steve with a book:

Being a co-owner of the copyright doesn't make you the creator, so it doesn't have any impact on term.

For example, Terry Pratchett, who does this, has written "Copyright does not necessarily have anything to do with authorship -- an author can assign copyright wherever he or she likes. Lyn and I are a legal partnership, and so we hold copyright jointly (for various mildly beneficial reasons) in the same way that, if we ever bothered to form a limited company, that would hold the copyright.

Also, nothing is going out of copyright at the moment. Governments extend the term as soon as we get close to having new public domain works, and in the US the Supreme Court has ruled that "limited term" doesn't mean the limits can't be extended indefinitely. Until there's a major change of policy, copyrights are effectively for ever.

#18 ::: Steve with a book ::: (view all by) ::: June 22, 2011, 03:02 PM:

thomas@17: thanks. I presume then that the list of creators of a work is assumed (for the purpose of working out length of copyright protection) to be those persons named on the title page?

Books are still coming out of copyright in the EU—James Joyce becomes free (again—he was free for a few years in the early 90s before it went up from 50 to 70 years) next year.

#19 ::: eric ::: (view all by) ::: June 22, 2011, 04:06 PM:

B. Durbin@11:

Further piece of advice: If the will isn't accessible, for practical purposes it doesn't exist

I'll add to this -- at least in Massachusetts (ymmv in other states). Don't keep your Will in a safe deposit box, as the executor will need the Will to get _into_ the safe deposit box.

#20 ::: David Goldfarb ::: (view all by) ::: June 22, 2011, 10:13 PM:

By the way, shouldn't that be "wingèd" rather than "wingéd"?

#21 ::: Brendan ::: (view all by) ::: June 22, 2011, 11:54 PM:

I hereby cede all rights to my creative works to the Public Domain. My kids can argue over the cash I left in the vault.

#22 ::: David Harmon ::: (view all by) ::: June 23, 2011, 07:13 AM:

A few relevant Eyebeam strips:

Little black box

Inappropriate Conditions

And..., The ultimate "mean" LWaT

#23 ::: Jo Walton ::: (view all by) ::: June 23, 2011, 09:53 AM:

Brendan: You can't do that. You can put your works into the public domain as of now by a simple statement, but you cannot keep copyright and put them into public domain on your death. You can do it on your deathbed if you are fortunate enough to die with sufficient warning and in posession of your faculties (and you're sure you're not going to recover) but you can't do it in a will. All you can do is inform your literary executor that this is what you want them to do.

This is what I want to do, so I've looked into it.

The purpose of copyright is to encourage people to create by making a space around what they have done so that they're safe to do it -- and so that they make money to give them time to do it. Once they're dead it should go back into the soup.

#24 ::: Dave Bell ::: (view all by) ::: June 23, 2011, 10:04 AM:

abi @16

Here in England, when my mother died, we knew where the Will was, but I can see how it might be a problem finding it if it was something such as last of the family.

#25 ::: Teresa Nielsen Hayden ::: (view all by) ::: June 23, 2011, 10:16 AM:

Make a bunch of copies, with a note at the top of the first page telling where to find the original. The document should also be dated. Stash copies everywhere someone might think to look.

#26 ::: Lizzy L ::: (view all by) ::: June 23, 2011, 10:52 AM:

Jo at 23: Does this mean that I cannot put a clause in my will directing my Literary Executor that I desire all my published works to go into public domain upon my death?

#27 ::: John Mark Ockerbloom ::: (view all by) ::: June 23, 2011, 10:55 AM:

Jo: I wonder: could it be done with a trust? I really don't want my work tied up in copyright for 70 years after I'm dead. (Not that I'm expecting that there will be many people clamoring for it, but in principle I want writings to go "back into the soup" quickly, as you put it.)

For now, I'm explicitly releasing my work to the public domain periodically: every Public Domain Day for the last few years I've released everything of mine published more than 14 years ago. And my spouse (who is also my heir) knows that I'd like my work to be released to the public domain at a suitable interval after my death. But she might not outlive me. I could put something in my will about it, but I think the clause could only be advisory.

Trusts, though, are fairly powerful tools, and I wonder whether a simple one could be used to do such a release. Has any lawyer proposed trust language for this purpose?

By the way, those who are interested in creating a strong literary overseer apart from their beneficiaries might want to check out Neil Gaiman's post. He links to a draft by a lawyer with some notable characteristics: there's a trust, *not* a "literary executor"; the trust owns the copyrights outright; and the trustees in this case are given broad discretion, explicitly stated to override beneficiaries, on whether and how to publish or exploit the author's creative works. If you want to set up something like this, you probably still want to see a lawyer, but his draft seems to have the essential elements.

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