by Susan Spann
Today the #PubLaw guest series takes a look at when you need a literary executor (or trustee) to administer the copyrights in your estate.
The executor (in the case of a will) or successor trustee (in the case of a trust) is the person who administers and distributes an estate after a person’s death.
When copyrights aren’t an issue, the executor or successor trustee has a fairly straightforward job. He or she collects the deceased person’s assets, either with or without court supervision, creates a distribution plan that follows the deceased person’s will or trust, and then distributes the assets to the heirs.
The process usually takes about a year from start to finish (unless there’s fighting among the heirs, and then all bets are off). Once the assets are all distributed, the executor or trustee is discharged and the estate is closed.
Authors’ estates present special problems, because of the ongoing nature of copyright management.
An author’s estate plan may simply transfer ownership of copyrights to one or more named beneficiaries (or “heirs”), who then will own and manage the rights directly. When heirs have the proper business skills to manage copyrights, this is often the simplest and most cost-effective choice.
But problems arise when heirs lack the business savvy to manage copyrights properly or when more than one heir is named.
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.
Unless you appoint a special executor or literary trustee to manage your copyrights and creative works on an ongoing basis, your heirs will inherit the right—and the obligation—to control and manage your copyrights directly.
This often ends badly, especially when the author wants multiple people to share ownership of (and the profits from) the author’s works. Disputes may arise about how to manage the copyrights; for example, whether to accept a contract offer and on what terms.
The copyright management process can be confusing even for one heir and confrontational when many heirs are involved.
But there is a solution.
The author can name a literary executor or literary trustee (they’re the same thing – except that “executors” usually operate under a will and “trustees” under a trust) to handle the ongoing management and control of copyrights on behalf of the chosen heirs.
The literary executor can be the same person as the general executor who handles the initial estate administration or someone else entirely. 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.
When a literary executor is used, the general executor (or trustee, in the case of a trust) will handle the standard estate administration issues–collection and distribution of money and other assets through probate proceedings or trust administration efforts, as appropriate.
The literary executor will handle management of the estate’s intellectual property components, initially under the general executor’s direction and then acting independently after the rest of the estate’s assets have been distributed.
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.
Sound expensive? It can be, especially if the estate needs to pay for the literary executor’s services. If the estate is large and complex, however, it may be worth the fees to know your copyrights are being properly managed and the profits distributed properly to your heirs.
How do you know if you need a literary executor?
Here are some simple questions to ask:
1. How large is your literary estate, and how much annual income does it produce?
If your estate contains unpublished works, or published works that don’t earn very much income, it may not prove cost-effective to hire a professional literary executor or trustee. That said, if you’re leaving your works to multiple heirs, it still makes sense to find one to appoint as the manager, with the power to make business decisions on behalf of the group.
2. How many heirs do you want to split the ownership and profits from your literary works?
Many cooks spoil a soup, and crowds of heirs tie copyrights in knots. It’s fine to leave your works to multiple people, but the more heirs you name, the more important it becomes to have a single person in charge of management.
3. Do any of your heirs have the business skills required to manage copyrights? If so, would that heir be willing to act as the literary executor of your estate?
The person placed in charge of managing literary works must have the business savvy to manage the copyrights properly. If none of your heirs has the business skills to handle the job (or the willingness to undertake it), you need to either appoint a professional literary trustee or find a capable literary attorney who’s willing to act as counsel to the heirs.
4. Is your literary estate complex or difficult to manage?
Authors who write for multiple publishers may have numerous contracts in force at any given time. The more books you write, the more complicated your literary estate becomes (with the possible exception of successful single-series authors, whose contracts may all sit with a single publisher or publishing group). The more complex your estate becomes, the more important it is to have someone skilled in literary management at the helm of your estate.
Revisit these questions every few years, because your answers will change with the passage of time.
New books are written and published. Readership grows, and profits increase. Heirs get older, change professions, and acquire new business skills. The estate plan that works for you today may well prove badly outdated a decade from now, so make sure to revisit your situation regularly.
I need a literary trustee, so how do I choose one?
I’ve already gone on too long today ... so that, my friends, is the topic of next month’s post.
Have questions about this or other author estate planning issues? Feel free to ask in the comments – Susan wants to hear from you!
Susan Spann is a publishing attorney and author from Sacramento, California. Her debut mystery novel, CLAWS OF THE CAT (Thomas Dunne Books, July 2013), is the first in a series featuring ninja detective Hiro Hattori. Susan blogs about writing, publishing law and seahorses at http://www.SusanSpann.com. Find her on Twitter @SusanSpann or on Facebook.