Q: As an author who is now older and retired, but still getting royalties checks, please advise on how to handle one’s contracts in preparation for when one author dies, or when both authors die. Do we need a special mention of the publisher contracts in our will? Who informs the publisher as to where the next royalty check is to be sent, and to whom it is to be addressed?
Answer provided by: Brenda Ulrich, Archstone Law Group
The life cycle of a successful textbook reaches well past the life of its author, given that copyright law currently extends rights in a work to the life of the author + 70 years. That means not just your children but even your grandchildren may benefit from the fruits of your labors. At the same time, for books — and in particular, textbooks — governed by publishing contracts, it is important for both you and your heirs to understand your, and by extension their, rights and responsibilities.
The first step is to pull out your publishing contract. If it is a typical royalty-bearing contract, then you likely have rights in every revision in which you participate. In addition, most contracts also include language that if you are unable to participate in the revision, the publisher will pay someone else to do the revisions and take the amount out of your royalties for that edition, meaning you are entitled to continue receiving royalties even after you retire from the book. One of the best things you can do for the long-term prospects of your book is to help identify and engage a co-author or successor author who can step into your shoes to continue your book’s updates and revisions. The more you participate in the selection process for such an author, the more control you will also have over the continued quality of your book as well as on its long-term financial arrangements, which will directly affect you and your heirs’ continuing revenue from the book.
Some contracts provide for what are called “step down” provisions—a reduced royalty rate for one or more editions of your book in which you do not participate in the revision process. For example, your contract may state that you receive 50% of your contractual royalties on the first edition on which you do not participate, 25% on the second, and none for any editions after that. In some cases step down provisions can be re-negotiated and improved, providing better percentages over more editions, resulting in better financial royalty “pensions” for an author and his or her heirs. Spelling out a clear step-down process is in you and your heirs’ best interest. To avoid confusion, you also want to clearly separate the revision clause from the step-down clause in your contract. However, even if your contract does not spell out any step-down terms, you or your heirs may still have some rights after you retire from the book, since the grant of rights—and by extension right to royalties—is for the life of the copyright.
Assuming there will be some royalties coming to your heirs, the next step is to pull out your estate plan, which likely includes a will, or trust, or both. Most estate plans (and estate planning lawyers) do not typically deal in copyrights or publishing contracts. However, you can specifically bequeath copyrights (like those in a book) to individuals, just like you can bequeath paintings, jewelry or anything else.
If your estate plan is silent on the issue of copyrights or contracts for books you’ve authored, those works will likely end up in your “residuary estate,” a catch-all term meaning anything left over after all specific bequests are accounted for. Depending on how your plan is set up, this might mean your “residuary estate” (and your copyrights) would go first to your surviving spouse and then to your children or to other identified next of kin. If you have no written plan of succession amongst your heirs, your state’s probate law will impose one. To avoid probate, work with your estate planning lawyer to update your will or trust to address copyrighted works by listing the works and spelling out a plan of succession for their ownership. Keep in mind that copyright law does not protect just published books, but also drafts, unpublished manuscripts, websites, articles, papers and anything else you may have authored over the course of your career. That said, the works that are likely to keep earning royalties should be your primary focus. If your estate planning lawyer does not have expertise in publishing or copyright law, he or she may also want to consult with a publishing or intellectual property lawyer.
As you can imagine, it can be tricky for an heir to sort out what sorts of copyrights or publishing contracts you may have had, much less what royalties he or she might be entitled to. Your publisher may also be at a loss, and unlikely to have the time, resources or motivation to track down the heirs to your publishing contracts. For that reason, the more steps you can take to assist them both, the better.
Bringing someone in to act in your stead can be an invaluable resource. If you have a will you may already be familiar with the concept of an “executor” or “personal representative”, a person, named in the will, who is charged with carrying out the wishes of the deceased. (If you have a trust instead of or in addition to a will, this person might be called the “successor trustee”.) There is also a similar concept known as a “literary executor” or “literary trustee,” someone who is entrusted with handling the literary assets in an estate. A literary executor would be in charge of handling your textbooks and textbook contracts after you are no longer here to do so. This includes managing or re-negotiating existing contracts, negotiating new contracts or licenses for works not currently under contract, handling disputes, reviewing royalty statements, and doing everything else you would have done in managing your books.
It is prudent to consult with your estate planning lawyer regarding selecting the best person to serve as literary executor. If you have a literary agent or publishing lawyer, they are often the best person for the job, since they are already intimately familiar with your books and likely are managing your contracts already. It is best to choose someone who understands the issues but is not a beneficiary of your estate, as that can create a conflict of interest—just as it would for any other kind of trustee. That said, it is not impossible to appoint an heir to this role, as long as the literary executor role is clearly separated from that person’s role as a beneficiary. Your publisher is not a good candidate for this role, since the literary executor needs to be able to negotiate with the publisher as your stand-in. For obvious reasons, it is better to appoint someone younger than you to this role, so your long-time partner, agent or lawyer is not always the best option.
Whomever you select as your literary executor, make sure this news will not come as a surprise to him or her. Let them know they are being named in the will or trust – if you can, ask first. If they accept, explain what the role will require of them. Even better, share copies of all your contracts—including any amendments—as well as some sample royalty statements, with both your literary executor and your estate planning lawyer. If you can sit down with your literary executor and walk them through the contracts and how they work, this is even better.
Another viable option is to place all of your literary works in a separate trust, i.e., a literary trust. Works placed in a single trust allow one trustee to handle the undivided interests in a single work, rather than multiple heirs each holding partial interests in the work. For example, if the copyrights in your works are distributed to, say, three children, it means each owns a 1/3 stake in your book, which could make negotiating new contracts or anything else for that book logistically difficult. Your estate planning lawyer can advise you whether a literary trust is the right fit for your situation.
One final note on estate taxes: In most cases this is not a major issue, but for extremely successfully authors, inheriting your copyrights at the time of your death might subject your heirs to heavy estate tax. For that reason, it sometimes makes sense to make gifts of all or some of your copyrights during your lifetime. Note that for books in multiple versions or languages, you could break up these different copyrights and make gifts at different times to limit the tax consequences.