Our society believes that death should not prevent writers from benefitting from the fruits of their labours. We express this belief through copyright law which generally holds that copyright persists for 70 years after the writer’s death and that the estate of a deceased writer is entitled to any royalties that accrue during that time. So, how is this managed?
There are two issues: who gets the royalties and how the royalties reach them. In both cases, the writer needs to take some ante mortem action.
Where there’s a Will
A deceased writer’s royalties are part of the estate and are therefore disbursed according to the writer’s Last Will and Testament. If the writer dies intestate, then the (residual) estate is divided amongst relatives of the deceased according to a standard formula. (The formula varies between countries.) Royalties are split in the same way as the rest of the estate. (This may be simple, if everything goes to the spouse of the deceased, or it may be hideously complicated.) So, the first piece of advice is that if your legacy is likely to be at all complex, then don’t put it off: make a Will.
By itself, a Will may not be enough. A Will deals with the division of the deceased’s estate. However, the literary estate may be a special case – for example, what happens if, five years after the author’s death, there’s an approach about making a film (or other derivative) of a work? If the estate is divided amongst multiple legatees, who is entitled to make decisions about literary properties?
The solution to this is to appoint a literary executor; someone with the right and responsibility to make decisions about that part of the author’s legacy. (Neil Gaiman is a very strong advocate of this procedure, and his on-line journal offers some very practical help.) Even then, it may not be that simple. That legacy lasts for 70 years; what happens if the literary executor doesn’t last that long? If the work has a particularly long shelf life, does the writer need a literary line of succession?
Spill the beans before kicking the bucket
So you’ve appointed a literary executor? Well done. Now, how does he or she know what you have written and where it has been published?
In the simple, traditional literary mainstream, authors have literary agents who can be expected to know the state of play with all the writer’s works and hold copies of contracts. But life isn’t always that simple; take playwrights (my particular cure). Typically playwrights make direct approaches to specialist publishers rather than working through a literary agent. Some playwrights have works with several different publishers. Then there’s the whole business of self-publishing – which, typically, means that the writer has a contract with an on-line retailer who handles distribution of specific editions of particular works. The literary executor needs to know about all those things. Somehow, the writer needs to communicate to the literary executor. It would take a pretty determined spiritualist to advocate leaving this until after death. Somewhere, you need to leave the poor sap a complete list covering all the works and all the deals.
Who do you think you are?
Many writers use pseudonyms for some or all of their works. From the point of view of your literary estate, your Will does not need to list your works and the names under which they are published (in the same way that it doesn’t list your bank accounts), but your executors do need to be able to trace that information. You know that metal box where you keep all your important documents – your bank account details, investments, insurance policies and the like? Well it would be a good idea to keep something in there about your literary works. This could be copies of the (relevant bits of) correspondence with publishers, or it could be a simple list of title, published name and publisher.
The important thing about pseudonyms is that there should be evidence linking the pseudonym to the real name of the author. What the author needs to do is to point the executor in the right direction.
So what does your literary executor need to do? It’s a matter of giving instructions to the businesses that handle your works. At their simplest, these instructions would be about where to pay the royalties. Giving the instructions gets a bit more complicated when the executor is dealing with an on-line self-publishing retailer (because the author has an account with the on-line business, and the account needs to be changed or replaced), but the principles are exactly the same. (I was discussing this point with Damian Trasler and he got in touch with a couple of eBook self-publishing companies to check the processes they had in place. One of the responses included the slightly disturbing phrase “I recognize it’s inevitable for most individuals…” This led Damian to observe that tracts of “undead” literature must be written from personal experience.)
The publisher (or eBook retailer) needs to be told that the writer has died and that the executor has been granted the right to deal with the estate. Depending on the sums in question, the publisher may require evidence (of the death and of the executor’s rights). This is the same as for financial institutions, and there are standard forms (death certificates and grants of probate) which will demonstrate legal proof if required.
And that’s it. It’s a reasonably straightforward process, provided that the author has sorted out the information ahead of time. From my (publisher’s) viewpoint, it’s much better to get an e-mail from an executor, than to have a royalty check returned with a message: “He’s no longer with us. He didn’t leave a forwarding address, but he’s gone to one of two places.”