Thursday, November 12, 2009

Writer's Final Words Create Literary Executor Dilemma

Dear Rich: My dear friend who is deceased is a published author and he has left the responsibility of his writings to me. The statement in the Will reads: "I give and bequeath all my correspondence as well as my handwritten manuscripts and other writings created by me, to [me], to keep in her possession for the purpose of typing and editing all such material and selling such works and dividing the proceeds among her [myself] and my children." He does not mention copyright. Does the estate keep the copyright and I keep in my possession the original works? Does the intention of the Will mean 'indefinitely?'  Would my ability to publish the works then be limited to approval of the executors in perpetuity? Or does the copyright follow ownership? Does the reading of "give and bequeath" and possession of property imply that I would have ownership? I ask these specific questions because the executors and their estate lawyer have explained that the original works are on loan to me for the purpose of transcription and it is in their discretion to solicit editors, publishers and archivists of the original work. Is this correct? They have recently asked for the writing to be returned to them after mistakenly giving them to me. The short answer is that the grant in the will is unclear. We think you will need a legal representative in probate (or possibly in civil court) with the goal being a letter of instruction or some other ruling about the disposition of the materials. In other words, you'll need a lawyer.
Are you a literary executor? It seems as if the writer wanted you to perform some of the functions of a literary executor. A literary executor -- unlike a general executor who administers the will -- manages an author's literary properties and does so for a payment -- usually a percentage of the income that is generated. As others have pointed out, the job often creates a conflict of interest, for example, when Kafka's will demanded that his unpublished writings be destroyed
The Copyrights.The magic words "give and bequeath" do not mean a transfer of copyright and it's unlikely that the author's copyright would transfer to you. But the control of the material, that is the decision-making about what happens to it, as well as the ability to license, publish and perform the materials are often designated to the literary executor.
You're Entitled to Something. It seems to us that the intent of the author was that you were to manage, edit and profit from the exploitation of the letters and manuscripts. So, the Dear Rich Staff is not clear why the executors are demanding the return of the documents ... but again, this points to the fact that you should seek representation.