Copyright protection beyond the author's lifetime

In the United Kingdom, the Copyright Act 1842 introduced the concept of copyright protection extending beyond the author’s lifetime, which was 42 years from the initial publication date or seven years following the author’s death, whichever proved to be longer. This period was further extended when the UK adopted the European Union Directive on the Duration of Copyright, ultimately extending the standard protection period to 70 years after the end of the author’s life. Consequently, authors possess a distinct category of valuable assets. This includes not only the physical copies of their literary works, which can be treated like any tangible property through estate planning. Instead, authors maintain copyright over their literary creations, which is an asset within their estate that demands proper management after the author’s death.

The Executor

While there is much online discussion on Literary Executors, there is no legal requirement for a separate executor to be appointed to solely manage the literary assets. In practice, having separate executors to manage the literary assets and wider estate they can have the negative impact of complicating the estate, especially in England where issues of probate can arise. The Executor has the option to appoint a Literary Agent to handle matters specific to the literary estate.

An author should designate an Executor in their will, and it is recommended to provide detailed instructions with a clearly defined role that outlines their authority to manage literary assets, oversee commercial exploitation, and carry out the author’s wishes. For example, this may be achieved via a letter of wishes to provide guidance to an Executor on the author’s thoughts and wishes regarding the literary estate. The scope of the role may vary based on the size of the literary estate, ranging from basic maintenance to handling complex estates with multiple works and various licensing contracts, which can influence the deceased’s choice of Executor.

The scope of the Executor’s responsibilities depends on the nature of the literary estate, specific instructions provided and the condition in which the deceased’s works are left to be managed. To enable the Executor to make well-informed decisions, they must be fully informed about the author’s intentions and preferences.

The author is advised to:

• Give the Executor access to all necessary materials to fulfil their responsibilities. This includes devices or cloud storage accounts where materials are stored.
• Inform their Executor as much as possible in advance about their business affairs, including providing copies of all literary contracts. It is essential to have a comprehensive inventory of literary assets, complete with contact information for individuals or organisations that will be granted rights or royalties. This inventory should clearly specify whether the work is published or unpublished and should include copies of contracts with publishers, agents, and licensees.
• Compile a list of online accounts that the Executor might need to access. This should include social media accounts, passwords, websites, domain registrations, expiration dates, and should outline the author’s wishes for managing their online presence.
• Explicitly identify any unpublished works that they wish to remain unpublished in their documentation and grant their Executor authority to discard them. If there are unpublished works the author wishes to be published, they should grant their Executor the authority to oversee the completion of these, along with instructions as necessary, such as their desired editor and publisher, and which rights can be exploited and by whom.

The Executor is advised to:

• If applicable, inform publishers, literary agents, and organisations about the author’s death and provide guidance on royalty disbursement.
• Ensure that all published works and adaptations correctly attribute the author’s estate under copyright law.
• Consider the author’s instructions, if any, related to their digital presence including social media accounts. If there are no instructions, make informed decisions regarding whether to maintain, archive, or deactivate these digital assets as necessary.
• Collaborate with publishers to guarantee the continued receipt of royalty payments for the estate. Establish a robust system for tracking and overseeing royalties, which may entail the creation of a dedicated bank account.
• Be responsible for the financial aspects of the literary estate, which includes accounting for royalties, addressing tax obligations, and distributing income to beneficiaries according to the author’s wishes.
• Conduct a thorough review of existing contracts and agreements to gain a comprehensive understanding of ongoing commitments and potential opportunities. Determine if any contractual renegotiations are warranted.

Preserving the author’s legacy

Preserving the integrity of an author’s work is a fundamental responsibility of the Executor. Any modifications to the author’s work should align with their original intentions, and care should be taken to avoid licensing the author’s intellectual property to brands or products that do not align with the intended legacy.

Jonny Geller, chairman of the UK literary agency Curtis Brown, representing the Ian Fleming estate, captures the central dilemma faced by all literary estates: “Will we devalue our ancestor’s work by putting too much out there?” Ensuring that the legacy of the original work remains untarnished is a core objective, even when introducing continuation novels or related projects.

Historically, early 20th-century literary estates tended to prioritise safeguarding an author’s reputation over expanding the volume of literary output. In some cases, manuscripts were destroyed, or access to archives was restricted to protect private details. However, this approach began to shift from the 1960s onward, partly influenced by Hollywood’s recognition of valuable literary characters as brands.

In a modern context, the literary world witnessed a significant development when US streaming giant Netflix acquired the Roald Dahl Story Company along with the rights to the entire Roald Dahl catalogue in 2021. This move resulted in a significant financial gain exceeding £500 million for the Dahl family. Netflix secured rights to cherished titles like “The BFG,” “Charlie and the Chocolate Factory,” and “Danny The Champion of The World.”

Concluding thoughts

The enduring value of an author’s literary assets underpins the intricate role that Executors play in managing literary estates. With this in mind, it is strongly recommended that authors appoint Executors in their wills and provide comprehensive documentation to assist in realising their wishes. The delicate balance between preserving an author’s legacy and capitalizing on commercial opportunities is evident, as seen in the strategic handling of literary estates such as Roald Dahl’s by platforms like Netflix. As the digital era transforms the dynamics of intellectual property, careful planning, informed decision-making, and collaboration with literary agents become crucial elements in safeguarding an author’s work and ensuring its rightful place in literary history.