Have you thought about your literary estate and what you want to happen to your work after you are gone? With the 70 year copyright term it is particularly important to spell out who inherits your intellectual property and what you would like them to do in administering it.
The estate planning process involves a couple of steps and you should think these through before approaching a lawyer to draft your Will or setting up a literary Trust. Also bear in mind that while many solicitors will have experience in drafting wills, many will not have specific experience in estate planning for literary or other creative estates.
Create an Estate Plan. Don’t forget that if you don’t make a Will the law creates one for you and takes away any choice you or your heirs have in managing your literary heritage.
Make sure the Will includes specific reference to the administration of your copyright works. You will need a provision bequeathing all of your intellectual property rights to the person or persons you want to own those rights after your death. You can grant those rights as a unit or split them up. If you don’t deal with the issue specifically, your intellectual property becomes part of the residuary or remainder of your estate.
Put together a list of all your published works, contact information for publishers, agents, contract details, translation agreements, passwords for websites and social media sites, details of PLR and Collective Management Organisation membership. Keep the list with your Will.
Think about who to choose as a literary executor. There are a number of factors to take into account :-
- Somebody familiar with the publishing industry – this can help minimise cost, confusion and potential conflicts and maximise the benefits from your works. This can be a literary agent, an authors’ body, family member or friend.
- Someone young enough – your estate lasts for 70 years after your death! It makes sense to appoint a literary executor who can be expected to manage the estate for a substantial portion of its time. (Funnily enough a Will is a living document until it is executed, so you can amend and update the proposed executor as time passes).
- Provide for a successor to the executor or at least some facility for choosing one.
- Choose a problem solver – someone with good communication skills and who gets on well with your heirs. They will possibly have to work together for a long time.
Think about who you want to inherit the income from your literary estate. There are as many different options available to you as you can come up with but some will be more successful than others. You can split the works over a number of heirs which is probably only advisable if the potential heirs don’t get on. An alternative is to treat the copyright as a bundle through the literary executor or a “managing heir” who has responsibility for dividing up the proceeds between the heirs. You can also leave part or all of your estate to a charity (JM Barrie famously gave the rights to Peter Pan to Great Ormond Street Hospital for Children before he died). However, bear in mind that while the charity would be very happy to benefit from any royalties, they probably don’t have the skillset to manage an estate.
Think about how you want your estate managed – estates vary from being very tightly controlled to much less so. It is helpful to your literary executor and heirs if you can set out your wishes for the future of your work. Are you happy to have your work translated, adapted for performance or film, reprinted, used by researchers or quoted? Do you want the fees charged to be reasonable, free for certain uses, proportional to any potential profit or even prohibitive? While this won’t be binding on the estate, it is certainly useful guidance for them in relation to your work and posthumous reputation.
If you leave your papers, unpublished work, diaries to a library or research institution make it clear who owns the copyright and who can grant permission for quotation, adaptation or publication of the work. There is a difference between ownership of a physical object and ownership of the copyright therein.
The author Neil Gaiman has a very useful blogpost which talks about the issue of authors not making a Will and includes a (American) template for a simple Will relating to authors creative property. http://journal.neilgaiman.com/2006/10/important-and-pass-it-on.html
This document is authored by Samantha Holman, Executive Director of the Irish Copyright Licensing Agency (ICLA) since 2001. The ICLA issue licences for the re-use of print and digital works to educational establishments, businesses and other organisations, permitting copying within certain rules from a wide repertoire of Irish and overseas publications. For further information, email firstname.lastname@example.org