Whose legacy is it anyway?

Your books and other literary works may be the result of years of sweat, blood and tears or a moment of sheer brilliance. Either way, there is a value to your work not only during your lifetime, where you will have benefited (hopefully) from advances and regular royalty payments, but also in death. As you will not be alive to actively contribute to decision-making as opportunities present themselves, you need to appoint a team with a clear set of guidelines to ensure that your works are sympathetically managed and exploited for the benefit of your chosen beneficiaries.

Copyright in your literary works endures for 70 years after your death. The value of your works, which belongs to your estate, continues during this period and, indeed, may increase simply as a result of your death.

Seventy years is a long time. The important decision for you to reach is how that value is to be managed and exploited. But where do you even start?

In any will you appoint executors. The executor’s role extends to establishing the value of the assets and liabilities of the estate, declaring these to HMRC and the Probate Registry to enable a document called a Grant of Probate ("Grant") to be issued after which assets are collected, liabilities are paid – including tax – costs associated with the application for the Grant are paid and what’s left is distributed to the beneficiaries in accordance with the terms of your will.

Consider all the permutations – a book becomes a musical and then a Disney film which demands a theme park ride. That’s a lot of legal issues to consider

The executors will deal with all aspects of the estate, and in your estate this would include your literary works.

Alternatively, you can appoint a specific literary executor. The scope of their role is restricted to your literary estate – your works. They will not have any part to play in managing the rest of your estate and will be focused solely on your works. The process mirrors that of an ordinary executor, as above, including applying for a separate Grant which only relates to your literary estate.

The role of the literary executor is to manage your works. They will do that by taking expert advice in relation to the sympathetic exploitation of the work. Of course, "sympathetic" needs to be defined and the best person to do so is, of course, you as the author of the works. This is not as straightforward as you would imagine and there is a natural conflict between sympathetic exploitation, preserving the aesthetic of the work, the value of the characters and the brand versus the commercial exploitation of the works for the maximum financial benefit of your beneficiaries. A difficult line to tread.

The key is to provide a very clear set of guidelines, which are regularly reviewed, as to how the works should be exploited. Consider all the permutations – a book becomes a musical and then a Disney film which demands a theme park ride. That’s a lot of legal issues to consider, possibly in more than one jurisdiction, and the sums involved could be life-changing. Throughout, the literary executor has to remain at the top of their game, deploying industry experts at the right time to ensure that all negotiations provide the best result possible. 

The candidate for the role of literary executor must understand your wishes in the form of the guidelines. They should positively challenge you on them where necessary. Most of all they need to be alive to the opportunities and be prepared where necessary to interpret your wishes in the light of the prevailing circumstances, circumstances which might not have been in your contemplation at the time of setting down the guidelines.

Candidates may be your literary agent, a business partner, your family, a good friend or your solicitor or accountant. The literary executors do not necessarily need to live and breathe the literary world but they must understand the value to you of the works not only in the short term and medium term but for the 70 year duration of copyright. Professional executors, like solicitors and accountants, can charge for their services but other executors cannot unless you state otherwise in your guidelines.

Inexperienced literary executors can cause immeasurable financial loss to your estate for which they are personally liable and may be the subject of claims from disappointed beneficiaries.

The takeaway here? If you’ve not already done so, to make a will. And when making a will, devote serious consideration to a set of accessible guidelines as to how your works should be exploited, as well as on the appointment of the right literary executors for you.