Legally Speaking, It Depends: Writer Legacy

We all die. Hopefully not for a long time, but, it happens. Dying causes all kinds of complications and gets in the way of all sorts of plans. For writers, there are extra concerns that, although you can't do anything about them once you pass (at least as far as I know), if you are aware of the possible problems you can plan for them in your contracts and wills and let those who survive you have the best shot at taking care of your leftover writing issues once you're gone.

Writers write and create things that outlast them. The current length of copyright law actually requires that the writer dies, since the actual end date of when a work goes into the public domain isn't set until the author actually dies. The current length is the life of the author plus a certain number of years depending on jurisdiction. But therein rests the question of who owns and can control the works post-writer? As always, as you've likely come to expect from my columns, it depends...

One thing the law seriously frowns upon is the “hand beyond the grave” trying to control the state of things for the living. Many a proposed last will and testament gets thrown out because the decedent (that's the dead guy in layman's terms) has attempted to put too stringent limitations on what the inheritors can do with the stuff that used to be said dead guy's property. If done properly you are allowed to determine who gets your stuff once your gone. You can even put limited conditions upon who and how they get your stuff-- to an extent. But, the dead can have little to no say as to what those inheritors can then do with the legacy items after they are passed into their control.

When it comes to a writer's legacy as far as their written work is concerned prudent planning can allow for the proper passing of control of both the already produced assets and income as well as any unpublished works. But there are certain complications you should be aware of to avoid passing on problems and frustrations instead.

There are a number of ways others can gain access to the legacy remnants of the recently departed. I'll lump all these together and call them “rights of descendancy.” Besides the usual kinfolk in line to inherit, there are creditors seeking debts, governments seeking taxes and potentially seizing assets, named heirs, disputed heirs, statutory inheritors and others who might all have a legimiate claim to at least some of the leftovers of a life. How each of those potential claims pan out depends on how the courts navigate through the complex issues of the rights of descendancy I mentioned earlier.

For example, you have NO heirs until you are actually dead. Wills can state who you'd actually desire to leave your stuff to, but, if they pass before you it complicates matters. Does it fall to the next in line or do the original intended beneficiary's own heirs get a stake? It depends on the language and inherent intent of the will as well as the individual laws that govern the death in whatever jurisdiction holds sway. Probate laws are the default if there is no legitimate will or legacy structure in place.

Then there's the matter of whether the stuff is still your stuff at the time of your death. It could be that you'd already granted possession of the material in question during your lifetiime in an assignment either contractually or otherwise. Or it could be that the material is considered collateral in loan or debt that is now collectable by the owed creditors prior to probate distribution of the remaining legacy. There are lots of hands that come out palm up when a person dies looking for their share of what's left. There are numerous examples of creative legacy issues being tarnished or last projects stymied from being realized and released by too many interested parties with claims to the same final works of the artist.

No matter what your occupation, prudent and well advised planning for your legacy distribution is good form. And writers have an extra element to consider in that planning.

When a writer puts pen to paper, something magical happens. That single act creates two distinct entities at the same time. We don't often think of these two things as separate, but, they are, especially in a legal context. The law, of course has names for each type of element created at that moment. The physical copy of the work-- the paper and ink-- is tangible property meaning it has a physical substance and existence. The second element created doesn't actually reside “in” the physical plane, but, is no less real. It is the intellectual property embodying the expression of the ideas that make up the work. This type of property is known legally as intangible property and is given just as much acknowledgement in the law as the property in physical form.

At their initial occurrence both sets of property are mutually dependent. As you have learned in my discussions of copyright, the physical creation, be it pen on paper, bits in a computer or by other physical means, is necessary in order to have a copyright. Their co-existence is often retained, but, isn't necessary. This can often lead to misunderstandings.

As an example, let's look at fine art. The physical creation is beautiful and attractive to a buyer. The connoisseur purchases and takes possession of the piece and brings it home. In most jurisdictions in the world the two properties- tangible and intangible- have now parted. Unless other arrangements are expressly made, the artist usually retains the copyrights to the piece while the physical artwork is now owned and controlled by the art lover. This separation isn't an issue unless the holder of the piece wishes to do something with it that would impact the copyright owner's rights. If the patron decides to let the piece be displayed in public at a gallery or museum a problem occurs, because the right of public display of the work is a copyright owned by the artist. In converse, if the artist wishes to display the work at the same museum, the physical original of the work is owned and controlled by the art collector and their permissions are needed prior to such an arrangement. Each controls one of the pieces of property inherent in the original creation.

The same it true for writer's works. The manuscript for a novelist or the script pages for the screenwriter do not hold the collectable weight that a fine art piece does and is usually ignored in the discussions about purchase and ownership. When a writer sells a script, what the studio wants and is bargaining for is the control of the copyright. The actual print out is of little consequence. But it shouldn't be ignored altogether. For example, can a writer auction off a signed copy of the original script for a charity? Does that interfere with the studio's rights purchased in the making of the movie? Simple questions, but, the answers can be complex and sticky when you get into it. Better to set out what can and can't be done in the contracts in the first place.

Like nearly every other industry, this industry is run by contracts. But there is a difference in that the entertainment world has a significant majority of those contracts that have to deal with both tangible and intangible property. How well the contractual arrangements succeed in separating the two will dictate how smoothly the operations are run and where problems can still occur.

One of the areas that has to be dealt with in industry contracts is death and its aftermath. Besides the morbid but necessary determination of how to continue with the project after the death of a principal, there is also the issue of making sure the intellectual property concerns aren't interrupted by those aforementioned palm up hands seeking control of the legacy of the recently deceased. Often this protection is attempted by contractual language that makes the assignment of rights airtight-- in appearance.

For example, there is a term that often appears in copyright assignments that doesn't mean what you'd think it means. “In perpetuity"is often used seeming to mean forever. In actuality, when the term is applied forever isn't really an option. In copyright contexts, no copyright lasts forever. If it is a work made for hire, perpetuity usually lasts 90 years, 120 years tops. Then the work falls into the public domain and the control supposedly waged by the copyright “owner” is moot. If the work is acquired from writer through assignment “perpetuity” can be even shorter as you'll see below.

Besides the initial party to the contract there is usually language that attempts to bind the negotiated terms to any future, third party claimants to the work under the same conditions. There's lots of examples of language that attempts to bind any future assigns, executors, administrators, trustees, beneficiaries, heirs at law, successors or any other party that might have claims arising from the initial contract party's participation. How successful you can be limiting the rights of a third party who was not a party to the contract negotiations will vary by what is at stake and what laws are impacted.

Still, lawyers have to attempt to plug as many holes as they can foresee and hope that the ones that aren't really covered are obfuscated or ignored. (Dirty lawyer secret, there.)

So what is a survivor of a dead writer to do if the rights to the works were already sold long ago? A lot of times there is nothing that can be done. But just sometimes there are strange areas of the law that the opposing sides didn't want you to know about that just might turn out in the inheritor's favor. A mostly historical quirk that pointed to this issue was known as the Abend problem after the case that first brought it to light. Until the law changed in 1978, there was an issue of a required renewal of copyright during the final year as each term of years ran out. If you missed a renewal period, the work faced falling into the public domain early. Now the quirk came because it required the initial author of the work to do the renewal. Most contracts of the day took this into account and bound the author to renew when necessary. They weren't allowed to change their mind and keep their copyright because of the contract they signed so many years before when they were young and foolish. The problem arose when an author died before it was time to renew a work. Were the inheritors bound by the terms of original contract? Turns out they weren't and the copyright could revert back to the original owner at renewal time. The Abend problem has diminished to a footnote of history because the changes in copyright law have let those old copyrights run their course.

In its place, though, and for the same reasons of allowing an author the right to negotiate a better deal once they earn more bargaining power than they had as a neophyte is the ability to rescind an assignment of copyright after 35 years. There are particular steps and procedures that have to be followed (e.g. not being able to even discuss the possibility until at least 25 years have passed, then giving first dibs to the current copyright holder,) but it is possible for a writer to decide to get back control over their work after 35 years regardless of the terms of the original assignment (so in this case, “in perpetuity” means “at least 35 years”).

This statutory recision has been on the books for a while, but, only recently has the time clock allowed lawyers to see how prevalent its use will turn out to be. A lot of lawyers are still holding their breath as the chips are starting to fall.

Even without these approaches, there are battles of ownership going all the time against what were assumed to be locked up rights transfer. There was a recent settlement of the dispute between the Kirby heirs and Marvel over the legacy of Jack Kirby's contribution to the comic book juggernauts he created or co-created.

And the battles go against heirs too. Recently the courts determined that the family trying to protect the intellectual property rights to Sherlock Holmes have run into the problem of the original works falling into the public domain. You'd have to be careful not to use aspects of the characters that are still under protection, but, the basic initial elements are fair game.

And a writer's legacy is a bit more complex when dealing with finished works that were left unproduced as well as works that were in process at the time of death. Besides the question of who inherits them, there is the question of what can be done with them.

Even with a clear line of title to the works, how would someone market them? There is a question of the complications of indemnity that traditionally are asked of a writer. How can the owner assure the new purchaser that the writer didn't borrow the ideas and work from some other source? And there is usually a consideration when buying a script that you can expect the original writer to do at least a couple rewrites prior to production. It's part of the Writer's Guild contracts, but, if the writer isn't available anymore there are cost and complication issues.

Regardless of how and when it happens, all writers must die. Let's hope we all take head and realize a well articulated plan to allow our works to outlive us in the best possible way. And that the day that plan has to be realized is far into our future.

More articles by Christopher Schiller

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