The demand for literary estates has surged in recent years, sparked by Netflix's acquisition of Roald Dahl's estate in 2021 for a reported £370 million. This has led to a new "gold rush" within the world of literary estates as streaming platforms search for sources of new content. Literary works represent a unique asset class that require bespoke advice during lifetime and careful management post-death.
In this article, we explore five key issues to consider when advising literary clients to assist with managing their literary estates.
1. Lifetime planning
Literary clients should ensure they have a robust will in place that leaves clear directions on their literary works, including directions on any royalties due on their published works and future royalties that may become due on unpublished works and manuscripts. A detailed letter of wishes will be invaluable to executors when managing a literary estate. The author can provide detailed guidance on their wishes for the adaptation and publishing of works after death. The author should also consider maintaining an up-to-date record of unpublished works and manuscripts to assist the executor during the early stages of the estate investigation.
2. Requirement for a literary executor?
As with any estate, the selection of the executor(s) is key. The executor will be responsible for managing the literary estate, making decisions about the publication and licensing of works, and preserving the author's legacy. The appointment of a separate literary executor is a feature of English law where it is possible to obtain a Grant of Probate specific only to the literary assets and separate to the remainder of the estate. In practice, this can often lead to complications with the estate administration. In Scots law, there is no requirement to appoint a separate literary executor to manage the literary assets. Instead, it is often best practice for executors to appoint an agent to manage the literary assets on their behalf. Professional bodies such as the Society of Authors also offer guidance to executors, and an ongoing management service for literary estates. As copyright will last for 70 years after death, the appointment of a professional executor in the form of a nominee company is also worth considering.
3. Preserving the author's legacy
Preserving the author's legacy is central to the ongoing management of the literary estate. It includes maintaining the author's reputation, ensuring their works are accessible for future generations, and making decisions regarding the adaptation of works during the lifetime of copyright. Executors may need to decide on how literary works can be transformed, for example the selling of rights to allow production of screenplays and streaming series, translation of works into foreign languages, or the production of continuation novels and audiobooks.
4. Management of contracts and royalties
The literary estate will be responsible for the management of existing contracts such as publishing agreements, licensing deals, and adaptation rights, and the collection and distribution of royalties in accordance with the terms of the will. If literary works are managed correctly during the term of copyright, the literary estate can provide a regular stream of income for the beneficiaries of the estate.
Existing contracts and royalties may have been managed through a limited company during lifetime, or the will may have provided for future royalties to be held in trust. The executor is likely to require advice on a range of issues such as company law and corporation tax; trust administration and taxation; publishing; and intellectual property rights.
5. Adaptation and publishing of works
The adaptation and publishing of works after death requires careful consideration. Executors must decide whether to allow adaptations, after considering the author's wishes. Some authors are opposed to adaptations or publishing after death, such as Terry Pratchett who wished for his unfinished works to be destroyed. The estate of John le Carré has taken a different approach and allowed the continuation novel, Karla's Choice to be completed by the author's son, and the production of The Night Manager as a television series.
The alteration of works to remove outdated or potentially offensive terms is another form of adaptation that may cause division. Ian Fleming's estate turned to guidance from Mr Fleming himself as he authorised changes to a US edition of Live and Let Die during the 1950s. Such a decision will be difficult to make without guidance from the author and highlights the importance of a detailed letter of wishes setting out the author's views on such issues.
By seeking professional advice at an early stage, the author can take appropriate steps to plan for their literary estate. This will provide the platform for executors to effectively manage the literary estate, protect the author's intellectual property, and preserve their legacy for future generations.
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