Lifecycle of the Literary Estate: Planning for and appointing a literary executor

Have you engaged in a creative endeavour that you want to see continue after your death?

Have you been given control of someone’s creative works after their death?

What happens if you write a best-selling novel and then die?

Probate law deals with property. Most people accept that it will cover real estate, money, shares, investments of various kinds, even superannuation in the right circumstances. What about the fruits of your creative labours in your lifetime – artistic works, a best-selling novel, sculptures, letters between you and your muse? Often, the creator of the works wants to see their work promoted and their legacy maintained after their death – but wants to exert control about how that is done, who can exploit their works for profit and who shares in the profits that flow.

In this first part we look at drafting a will that captures your creative work, or transfers control of works that you have been given custody of during your lifetime.  In further parts we will look at how to administer an estate that includes a “literary estate” component and what kinds of issues and disputes car arise.

Literary estates, literary executors, creative works, oh my!

A word first on the use of the phrase ‘literary’ – this concept is not limited to writers, novelists or essayists. It comes from a time prior to the advent of computers and the digital age of many and varied forms of art and creative work – think the works of Charles Dickens, the letters to and from Sigmund Freud.

A literary estate is a division made by a will maker to separate and specially govern certain property – the ‘literary estate’ – and to give that power to a person or company whose role is to administer, promote and potentially generate profit from the literary estate – ‘literary executor’. It is not a phrase with an accepted legal definition – the scope and the role will depend on the terms of the will itself.

It is essential that you obtain competent legal advice on the drafting the appointment of your literary executor – Court’s have been required to interpret poorly drafted clauses with results that are not particularly helpful for the people left behind.

Who can do it?

It almost goes without saying that anyone you appoint as executor needs to be someone you trust – this is just as true for a literary executor. You need to be confident that the person who you select will follow your directions, and will abide by limitations or restrictions you place on them. We suggest you discuss the various reasons for your choice with your solicitor to ensure that it is drafted to meet your wishes. If you have an agent who works with you in your endeavours, they may need to be involved. There might be questions of multiple jurisdictions if your works are distributed around the world.

What if the person dies themselves, or resigns?

No-one lives forever, even if they structure their affairs very carefully and so your will must also deal with what happens to the role if your chosen person or people no longer can, or wish to, act in that role. It is essential you get competent legal advice about this aspect as it can be one of the most problematic aspects of the appointment of a literary executor, and one which may not come to head many years after you have passed, and indeed may come up after your chosen person has themselves died!

What does a literary estate cover?

The scope must be clearly identified in a properly drafted will. Literary works, artistic works, associated intellectual property will need to be identified with precision and clarity. In days gone by the tasks of the literary executor may have included revieing the private papers, drafts and notes of a deceased person to see what falls into the category. These days it will include a review of the contents of hard drives, computers, cloud storage, mobile devices.

The role can include directions as to the care, maintenance, preservation and commercial exploitation (or not) of the works. The Australian artist Martin Sharp – a cartoonist, songwriter and film-maker – appointed literary and artistic directors whose job was to work alongside his ‘general’ executors in order to arrange for licencing, reproductions and sales of his works after his death.

Does the literary executor get paid?

As with so many questions in law, the answer is ‘it depends’ – in this case it depends on what you want. You might wish for the beneficiary of the profits of your literary estate to also be the person who you give control to. You might wish for the person to be paid a certain stipend or sum, or perhaps a percentage of the gross or net profits that their labours generate. It is a matter for proper advice and you weighing up the options available as to what you want in this regard.

What to do next?

There are clear needs to deal with your literary estate and we encourage anyone who is thinking of how to structure the protection, promotion and potential commercial exploitation of their creative works to get in touch with our expert solicitors to discuss their wishes further so that it can be put into clear and effective drafting.

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