I think that most Artists and Writers think a lot about three things: Sex, Death and God. Personally, God can take care of themself, and I’m not getting any sex. So let’s talk about Death, specifically, Death and the Artist… or Writer in my case.
Once in a while, quite erratically, someone says something, and it triggers some random synapses in my brain, and for no discernible reason, I say something sensible. It’s always disturbing when it happens, and often quite frightening for anyone nearby. It’s like discovering that a Bengal Tiger has hacked your GPS and passwords. But anyway, since I had one of those moments, I thought I’d share, for people in the arts field.
Suppose you’re a writer or an artist, someone in the creative field. A poet, a playwright, a short story writer or a novelist, a composer, a lyricist, a film maker, etc. Maybe you are, in which case my sympathies.
Maybe you aren’t, in which case, just pretend.
Now, suppose you’re going to die.
Well, there’s no supposing that is there? You’re going to die, in relative terms sooner than later, and in geological terms, any minute now.
But never mind that – as an artist or a writer, what happens when you die?
THE POST MORTEM LIFE
Setting aside theology and decomposition of course.
Distressingly, it’s all pretty standard stuff. Someone comes along and takes your body away. What’s left behind, all your property, your possessions, everything else, the remains of your legal existence, is called your “Estate.”
If you have a Will, there’s an Executor, if you don’t have a Will, there’s an Administrator.
Quick note – if you have a Will, then basically all your stuff is handled in the way the will instructs. If you don’t have a will, then by law there’s an automatic process. If you have a spouse, they get everything. If you don’t have a spouse but have children, everything divides equally among the children. If you don’t have a spouse or children, but have siblings, it gets divided equally among the siblings, and so on and so forth, down through whatever generations are alive. As I said, it’s automatic, and if you’re a writer or artist, it’s also a bad thing.
But never mind all that. Executors and Administrators have the same job: To basically wrap up, get rid of and close your estate.
What they do is they cash in or gather all your bank accounts, your RRSPs, any stocks or financial instruments. They sell your car, your house, any big ticket items. They cancel and pay off all your credit cards, close your phone accounts, cable account, the cancel your lease. They empty your house or apartment, your furniture and possessions are sold, if they have resale value. If they don’t, they’re given away, or divided among any family that wants them.
Anything left over is just sent to the dumpster. given away or carted off to the junkyard, and that can include some of your most precious sentimental items, a lot of the stuff that was just you, from your favourite slippers to a photo album, to your shelf of postcards and knick knacks from your world travels, it’s all just tossed in the dumpster, everything is closed down and shut down. All the bills get paid from the collected money of the Estate, and divides up whatever is left among your survivors.
That’s the standard process.
Whatever you had, whatever you left behind, that all ceases to exist, the footprint you left in the world is swept away, scattered like dust. That’s the whole point of the process, once you’re dead, there’s a process of erasing you.
What happens to your art? Your writing?
Well, that’s kind of a tricky thing. Because 99 times out of 100, the Executor or Administrator of your estate doesn’t understand or care about your art or your writing. It’s not their job to understand or appreciate or see any future potential. Their job is to erase your former existence. It’s all about shutting down, cancelling, closing out, selling off, giving away, paying out and… all gone.
The thing is though, that your legacy as an artist or writer, your art, your writing, that actually has a potential life beyond all that. So that’s what you need to be careful of.
Under a regular Executor or Administrator: All your novels, your short stories, your poetry that’s sitting in your computer hard drive, or in binders and boxes, all your artwork and art supplies? That’s likely to just get carted off to the dump and discarded.
Think about this: Your computer goes into Electronic Waste and gets crushed and magnetized. Your publications, your books and magazines, get given away or just dumped in the trash. Every novel or short story you’ve got in there, every book you wrote, every article, every letter or email that you’ve kept – reduced to wandering mindless electronic white noise, wiped away, the physical parts of your computer stripped, recycled, melted down or just gone.
To the Executor or Administrator, mostly, all of this stuff has no intrinsic value at the moment that they’re trying to sort out the estate, your Administrator/Executor’s job is just to clear it all away, reduce the estate to cash, pay the bills and wrap things up. Your body of artistic work, your copyrights, your intellectual property, your life’s work… just gone into the dumpster.
Most of the time, your Executor or Administrator, they don’t know what else to do with it. All the art stuff, that’s not normally how their job works, and they’re not likely to handle it well.
Any possible value or legacy is lost.
Do you really want that to happen?
Does that sound… satisfying?
Because the thought of it freaks me the hell out.
Now, I’m a lawyer. But this isn’t legal advice, I’m not representing anyone, I’m not fishing for clients. But I think I’ve got some useful things for people to think about.
As artists and writers, we’re in kind of a unique position. Our work survives, or it can survive. The legal rights in our work survives us. Maybe it’s a lot, maybe it’s nothing, but something of us, of what we loved, can ensure.
We want our work to survive us. And that work, our legacy, may actually have value or potential value, even after we pass on. So maybe it’s worthwhile to ponder the matter and think about making arrangements to ensure it’s taken care of.
Let’s start. You’re a writer, and you’re going to die. What do you do? How do we do that.
Well, your writing, your art, your legacy, actually has two components:
(1) There’s the physical part of it (and that includes computer files);
(2) And then there’s the legal or the Intellectual Property part of it.
They go together. You can’t have one without the other. Your copyright in your novel does you no good, if that novel doesn’t exist, or if nobody has a copy of it. But they have separate needs, and you have to do different things, so I’m going to talk to you about how to deal with each in turn.
THE OTHER BODY, YOUR BODY OF WORK
First the physical part of the Writers/Artists Estate. This is your physical manuscript, the print version of your writings, the binders of stuff, the contracts, the correspondence, and not just that, the CD, the Zip drives, the hard drive, etc. An electronic copy is still part of that physical estate. An email is part of it. It’s the tangible side of your work.
If you’re an artist, that includes your drawings, sketches, paintings, correspondence, contracts, materials, preliminary works, etc.
You need to be careful. That’s the stuff that your normal Estate Executor might well toss into a dumpster. Honestly, I don’t blame them. Their job is to clean everything out, pay bills, reduce everything to cash and get rid of anything that can’t be instantly reduced to cash. Art and writing kind of thing is problematic. It’s hard for a normal Executor to recognize any value in it, or to make any kind of effort for it.
Now, if you’ve got family members or survivors who treasure your work, and they let the Executor or Administrator know, they can usually get it. If there’s a family dispute over it that’s usually a pain in the ass, unless there’s some clear direction in a will. Often, family or survivors don’t care or don’t have a use for it. I’ve heard several writers tell me that their children or survivors aren’t interested.
If you’re lucky and somewhat famous or well known, or have any kind of reputation, your Executor may donate it to a library or an archive, or to a University – someone who takes stuff like that. At that point, your life’s work goes into storage boxes against the potential prospect that some day some Master’s Degree student will come looking for a thesis. That’s if you’re lucky, even famous writers life’s work can end up in a dumpster. If you’re relatively obscure…they might say no. In which case, dumpster time.
We want to avoid the dumpster. First order is we want you’re life’s work to avoid the dumpster, to not end up anywhere near it.
What to do? First you need to make sure that all your Art/Writing stuff is gathered together. Now maybe this is your natural inclination, you’re hyper-organized, you have a study or a work area, all your stuff is neatly organized in hard drive folders, binders, zip drives, boxes, there’s a physical or electronic file with all your passwords, directories, accounts, contracts, lists etc. Or you can be a bit like me, where things are a little … spread out.
The thing is, your regular Executor/Administrator, the person who deals with your estate, they may not be interested or able to pull all your art stuff together for you. Mostly, they’re interested in getting rid of everything and shutting things down. They’re not qualified and they may not understand. They may just toss everything.
You Literary Estate person either needs to have this all ready, waiting for them. Or they are going to have to jump fast and try and pull it all together while your regular Executor is carting everything to the dumpster – that’s a recipe for stuff to go wrong, stuff to go missing, for conflicts, etc.
So what you want to do is at least make an effort to make sure everything is centralized, accessible, easily findable and obvious enough that your Literary Executor can find it easily, and obvious enough that your regular Executor has a decent chance to recognize this isn’t something that should go into the dumpster and paper shredders and maybe sets it aside.
Whether you are a big time writer or artist, or someone like me, marginal and on the fringes, doing it as a labour of love, either way, just make a little effort to make it easy on the people who come after who are trying to deal with this.
Look the more disorganized and all over the place your body of work is, the more chance of some or all of it ending in a dumpster. Someone needs to pull it all together into a package, to centralize or organize it, so it can be found or used. Maybe someone will do that for you. Maybe no one will. Even if someone tries, they may not do much of a job.
Just make the effort. Okay?
YOUR ARTISTIC LIFE AFTER LIFE
Now, let’s go on to the meatier side of things. Your intellectual property, which can include your trademarks, patents, industrial designs, your business name, your ‘celebrity’ and image and name, and so on. There’s a lot of stuff covered, but that’s for another discussion. Mostly, we’ll stick with copyright.
The fun thing about copyright, is that even though you die, your copyright in your artistic or literary work lives on. The usual rule internationally, is that copyright is created automatically with the creation of a literary or artistic work, no registration necessary, and that it lasts for the life of the artist or writer, plus seventy-five years. So basically, your writing, your literary work, your stories and books, could still be making money for your heirs for seventy-five years. That’s kind of cool.
I’m going to caveat a little bit – in the United States, due to the Sonny Bono law, there is an extension of copyright to works published before 1978 to 95 years. That’s why Mickey Mouse just entered public domain.
But either way, there is potential for your work to have a life of its own, to circulate, to get published, to keep your name alive, even to make a little money, or get a little recognition. That’s not a bad thing.
But if you don’t look after it, there are ways that things can go wrong.
I’ll give a pop culture example – there were a couple of Doctor Who writers, Pip and Jane Baker. They created a villain, the Rani, and a handful of monsters, whose rights they own. Doctor Who has been around for a long time, it’s big on recycling its villains and monsters. Ideally, they might like to re-use some of Pip and Jane Baker’s properties, which would be a very lucrative proposition for the Bakers, and their estate.
But here’s the problem: The Baker’s apparently passed away without wills and without direct heirs, no one actually knows who holds the rights to the Baker’s characters. Without knowing the rights holder, without that situation being clear, they can’t use those characters. The show loses, the estates lose, the fans lose and ultimately, someone who could have benefitted, doesn’t.
I know of cases of anthologies where Editors wanted to use a short story by a deceased author, but can’t, because they have no idea who holds the rights. I suppose this extends to entire novels and books. Desirable but unpublishable because the rights are uncertain.
Not having your rights in order, and clearly in the hands of a Literary Estate or Executor, basically means that it can be difficult or impossible for your work to see the light of day again.
Now, just because you didn’t give away your literary rights in a will, it doesn’t mean that those rights vanish. You can, if you wish, will your work into the public domain – just put it in your will “All my stuff is public domain the moment I die!”
But unless you do that, your copyright endures, even if you die without a will. It just gets confusing as to who has it, or how much of it they have. Suppose that you die without children, leaving only a spouse, or you die without a spouse, leaving only one child – well, that’s simple, only one person, they get your literary rights along with everyone else.
Supposing that there are several children – they’d all have an equal share. Suppose instead of children, there are siblings, again, equal share. Suppose that it’s second generation, there are nieces and nephews, grandchildren. Without arrangements or designations, the ‘copyright’ is spread over a dozen people, every single one having a veto, every single one having to sign off on any usage. That’s assuming that they’re known and can be found, ten, twenty or fifty years after the fact. No publisher or marketer is going to work that hard. Or suppose there are no heirs, where does it go.
What happens then, is if you die without a will, your copyright goes into this publishing limbo where it’s not clear who owns it, who owns what, what permissions are required, or how to find them. In most cases, although the copyright exists and might potentially be publishable or lucrative, no one will touch it. Your work goes into a twilight zone, existing, legal, but untouchable.
Eventually, it will end up in public domain, seventy-five years after you are dead. But most works, if they have a post mortem publication life, that’s usually in the first twenty-five to fifty years after death.
And to be at all valuable seventy-five years after death, your work generally needs to be popular and have a track record within that seventy-five years. It’s not seventy-five years of obscurity, and then a new lease on life in the public domain. Seventy-five years of obscurity will usually be followed by public domain obscurity.
All of this is why, if you are at all serious, about your art or your writing, make a will and make some special provisions in your will for what happens to your work, what happens to the copyrights and intellectual property rights, after you die, because it is your legacy. Why waste it.
Now, you should see a lawyer to discuss this. It should be a part of your will discussions. But I am going to offer a few thoughts.
First of all, there’s a difference between the administrator of your literary estate, and the beneficiaries. The administrator will be the person who runs it, who sells it, who signs the publishing contracts, and who handles the money. The beneficiaries are just the people who receive the money.
Don’t make the mistake of just dividing your literary estate up among your beneficiaries. You have four children, you divide your copyright equally four ways – that means that all four have to sign every publishing contract, that’s just looking for trouble, there’s a million ways for things to go horribly wrong. You could assign individual copyrights to each child – four books, four children, one book copyright to each. Yeah, there’s still a lot of bad outcomes. Don’t do that.
And just because they’re your children doesn’t mean that they’re any good at it. I’ve talked to writers who say “my children aren’t really interested in this.” If they’re not writers or artists themselves, if they’re not in the trade, they’re just not going to be any good at it. Even if they have one single undivided share, they may not know what to do or where to go. Maybe they’ll be motivated and get lucky, maybe not, you’re rolling the dice.
What you want to do is assign or license your copyrights to a single, or at most a pair, of administrators for your literary estate, and let them run things. You arrange for them to take a fee, to compensate for any work, their job is to handle things and pay the beneficiaries.
“Well, who the hell is that?” I hear you asking. I can’t tell you. But I can give you some suggestions.
If you’re successful enough that you have a literary agent or business manager in the field, then usually that’s the obvious candidate. A lot of literary agents and business managers actually go on and continue to administer the literary estates of their deceased clients. Sometimes they actually prefer it that way. There’s a lot less nagging and complaining when the client is dead.
Past that? Someone in the business. A lot of writers have very good, very personal relationships with Editors, with Small or Medium sized publishers, with fellow writers. If you work regularly with someone that you trust, then try them. If you’re close friends, or even good colleagues with a fellow writer or artist, and they seem capable, ask them.
If there is someone in your extended family with an affinity or a talent, ask. If there is someone in your broad circle of friends or colleagues that might be able to handle it, ask. Hell, worst case scenario, pick a writer’s nonprofit or something. It can be a corporation, a law firm, it’s flexible.
Preferably it should be someone comparatively younger than you, with a few years in them. If they die the year after you, then everyone’s time has been wasted, and confusion ensues.
On the other hand, your estate will last seventy-five years, so it’s likely to outlive whoever you appoint. So you may want to make arrangements for it to pass on or pass down, or set up a trust.
The thing with a Literary Estate Administrator is it’s a voluntary thing. If your literary legacy is worth a lot of money they’ll be beating down your door for the job. If some money, you’ve got a shot. If it’s a crapshoot or no money, they’re doing you a favour. So the key is to ask, get their agreement to take it on.
I suppose you could try to simply just saddle someone with it, without asking. But then, they’d have no obligation or motive to do anything.
You want to give some directions for what an Administrator does with your stuff, perhaps nothing more than sell or license it to the max. But some artists have given very specific directions on ways they don’t want their stuff used. You also need to determine how your administrator get paid, or what their commission should be. You need to designate your beneficiaries and what their share is. Perhaps how transfers go, or special conditions.
There’s stuff to think about. Hopefully there’s no rush. Talking to a lawyer, or a writer’s organization should help you figure things out.
Full disclosure: I haven’t done any of this stuff, I don’t even have a will. If I get hit by a bus tomorrow, I’d be boned. But if I got a diagnosis of cancer that gave me a few months, this is something I would be working to get taken care of. I’m getting up in years, maybe in five or ten, it’ll be time to make the efforts, figure it out, make arrangements and get a will done.
But I figure that whenever I get around to knuckling down and getting it sorted out, it will get done pretty quickly. Particularly if I’ve figured out what I need to do and what I want to do in advance. An afternoon sometime, maybe a weekend and voila. I figure the rest of you are in the same situation.
Most of you are young(ish) (sort of) and vital (hah) with (hopefully) many years ahead of you. So there’s no urgency. Hopefully, we’ll all have many years before any of this becomes a concern. That’s cool. I’m just laying it out there.
No pressure. Just something to think about and have in the back of your mind.