by Kathryn Goldman
Die, that is.
As a writer, part of what you will leave behind is your collected works – a body of work that, if attended to and managed, may thrive long past your physical demise. If you are interested in having your written work survive you to be read by future generations and perhaps provide a source of income for your heirs – you need to plan for it.
Here are some basic steps you can take to increase the odds of immortality for your written work.
Step 1: Apply for Copyright Registration
The copyright in your books is intellectual property. And just like real or tangible property—your home or your mint green 1955 Thunderbird—it becomes part of your estate to be left to your heirs.
“Register your work,” is a common theme of mine. Every chance I get I tell writers, artists and creative professionals of every stripe to do it. There are significant benefits to registering your work with the Copyright Office and I’ve outlined many of them here: Why and How to Copyright Your Self-Published Book.
An additional benefit to copyright registration is that it makes planning for the proper succession of your works just a bit easier.
The registration certificate gives substance to something that otherwise might just be considered a digital file on your computer or in your KDP account. It’s one of those important documents you hear so much about that belongs in a safe deposit box with your other important papers.
In a way, it makes your work “more real” to the family and friends you leave behind. The registration certificate is something that can be held. It makes the intangible, tangible. It becomes a concrete part of your estate.
Copyright is actually a group of rights (to publish, to reproduce, to make derivatives, to perform and to authorize others to do the same). The group of rights that makes up copyright lasts longer than you do.
If you register your copyright using your real name then the copyright lasts for your lifetime plus 70 years. If you register your copyright under a pseudonym then the copyright lasts for 95 years from the date of publication of the work or 120 years from its creation, whichever comes first.
There’s a little math involved in securing the longest period of time for copyright protection. If you’re an older writer you may want to register your copyrights under a pseudonym. If you think you will die in the next 20 years or less, using a pseudonym will provide your heirs with a longer period of time in which to exploit the copyright of your work before it enters the public domain.
If you are a younger writer, it probably makes more sense to register the copyright under your real name. That way you get the benefit of exploiting the copyright during what will hopefully be a long lifetime of your own then on your death your heirs will have the benefit of another 70 years of copyright protection.
Choosing whether to register a copyright under your real name or using a pseudonym is a personal decision and the length of the copyright term is only one of the factors to be considered when making the choice. There are other factors to consider.
Step 2: Create a Will
It’s important to decide who will inherit your property, including your intellectual property. Creating a will means that you are taking control of this decision and your wishes are more likely to be honored.
If you do not have a will, the state will decide how your property will be divvied up. And every state is different. For a basic explanation of what happens to your stuff if you don’t have a will, you can read Passive Guy’s post on what happens when an author dies.
If your body of work is significant and is generating substantial income it is a good idea to visit with an estates and trusts lawyer to design an appropriate plan for the management and disposition of your revenue streams. If your work is not yet earning significant income, it is still important to have a will. But something more simple and straightforward will suffice.
A key part of creating a will is choosing the person who will act as the personal representative for your estate. The personal representative is the individual who is responsible for gathering the assets of the estate, reporting to the probate court on those assets, paying off any creditors and managing the distribution of the remainder of the estate to the heirs.
A personal representative is not necessarily the person who will be responsible for maximizing the return on the works themselves. An individual (or company) referred to as a literary trustee, or literary manager, may be better suited to that task.
In his post on preparing his estate for his eventual demise, Joe Konrath takes the view that he’s passing on a business to his heirs. If you are a writer and you are, or have the goal of, making a living at your writing then you are, indeed, in business. Konrath believes that someone with knowledge of the self-publishing business should run that business after his death and be paid for it – a literary manager. He suggests such a manager should be paid 15% of the revenue earned. The remainder of the income, 85%, would then be divided up among the heirs according to the instructions in the will.
Konrath’s concern is that the heirs will not know what to do if they inherit a self-published legacy. He may be right. If you do not believe your heirs are interested or up to the task, your will should include a direction permitting the personal representative to retain a literary trustee to manage your works.
Step 3: Make a List
Going to the trouble (and potential expense) of creating a will to address the disposition of your creative work is only going to be useful to your estate if your work can be identified and found. The best way to do that is by making a list and keeping it current.
The list should include the status of each work, where it is currently published, and where a copy of each manuscript is located. Include your unpublished and even your unfinished manuscripts, as well.
For a comprehensive post on what belongs on your inventory, read Fearless Inventories by Kristine Kathryn Rusch, part of her series on estate planning for writers.
Coupled with listing your work—published, unpublished, and unfinished—you need to create a list of accounts, usernames and passwords for each online service you use to run your self-published business. In addition to your revenue generating accounts like KDP, Kobo and Smashwords, remember to include login credentials for the services that help you run your self-publishing business –website login, email service provider, hosting service, PayPal—anything you use that supports the function of your creative work earning income.
Update this list regularly, as well. Twice a year. Do it when you change the clock, just like changing the batteries in your smoke detector. Spring forward, fall back, update your accounts and password list.
Step 4: Gather It Together
Make copies of your copyright registrations, list of works and accounts and keep it with a copy of your will. If you have a business plan that maps out how you intend to market your work to keep the revenue flowing and growing, put that in the envelope, too. The best place for your original, signed will is dictated by the law of your state. But a copy of all these things should be given to your personal representative.
Estate planning is part of an overall protection plan for your work. Following these simple steps will enhance the value of your body of creative work for your heirs and perhaps give your writing a shot at immortality.
NOTE: I am not an estates and trusts attorney. The purpose of this post is to help you be more thoughtful about establishing and protecting the value of your creative work so you and your heirs can benefit from the law that ensures the exclusive rights to exploit your work after your death.
Kathryn Goldman is an intellectual property attorney who protects writers, artists, filmmakers, and businesses from having their work and art ripped off. Since she’s a lawyer, she has to mention that she’s not *your* lawyer (so this article isn’t technically legal advice), but you’re still invited to download her Rip-Off Protection Report for Creative Professionals. You can also follow her on Twitter @KathrynGoldman.
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