Lifecycle of the Literary Estate: Estate disputes over valuable art and literature rights

What happens if a literary executor goes rogue?

How does a literary executor deal with the ‘ordinary executor’ if they don’t get on?

How do you deal with your family member or friends best-selling novel now that they have passed?

 

Probate law deals with property. Most people accept that will cover real estate, money, shares, investments of various kinds, even superannuation in the right circumstances. What about the fruits of your creative labours in your lifetime – artistic works, a best-selling novel, sculptures, letters between you and your muse? Often, the creator of the works wants to see their work promoted and their legacy maintained after their death – but wants to exert control about how that is done, who can exploit their works for profit and who shares in the profits that flow.

This is the third and final part of a three-part series looking at the concept of “literary executors. Part 1 looked at appointing a literary executor under your will. The Part 2 looked at administering estates including a literary estate. In this final part we will look at what kinds of issues and disputes can arise by examining case studies.

 

Restriction: James Joyce

The Irish author and poet James Joyce left a significant legacy of literary property following his death in the 1970s. His grandson Stephen took control of the literary estate and has become infamous as an example of a zealously protective representative, exercising his power vocally and liberally. Stephen prevented or severely restricted the use and quotation of Joyce’s work for many years – so much so that in 2004, the Irish Parliament modified the copyright law of the nation to permit certain manuscripts of the novel Ulysses to be exhibited on the centenary of their publication. In 2005, proceedings were brought in the United States for an author to quote Joyce’s comments about his aunt at the Court rejected the purported protection of privacy of the family as a misuse of copyright. The case ultimately settled.

Stephen Joyce’s strident conduct is a cautionary tale about the extent to which literary estates can effectively ‘rule from the grave’ and also an expression of the potential for a literary executor, infused with the power of their position, to create more issues than the author ever contemplated.

 

Charging: Eric Blair (aka George Orwell)

Eric Arthur Blair (better known by his pen name, George Orwell) was married to Sonia Mary Brownell Orwell and by his will left his entire estate to her – which, of course, included his ‘literary estate.’ Sonia, in turn, made a will that appointed three individuals as executor and trustee of her estate, and also a literary executor – Mark Hamilton, a director of a firm of literary agents AM Heath & Co, whose job would be to exploit Eric’s works and derive income from them. Mr Hamilton was to pay the income to the ‘general’ executors who was to distribute the income to Eric and Sonia’s son Richard for life.

In re Orwell’s Will Trusts, Dixon & ors ats Blair [1982] 1 WLR 1337, the dispute arose over whether Mr Hamilton, via his firm, was permitted to charge for time spent, and to retain commission for his services in respect of the literary estate. This required an examination of the terms of the will and in particular the charging provisions, and in this case resulted in the literary executor being permitted to charge for his time and trouble and to be remunerated for his work.

 

Permission: The Daleks from Dr Who

Mr Justice Norris starts his judgment in In JHP Limited v BBC Worldwide Limited & the Trustees of the Estate of Terry Nation [2008] EWHC 757 as follows:

“The Daleks first became known to humankind in 1963 when they appeared in the first series of “Dr Who”. They were some of the most engaging and enduring creations of the fertile mind of the late Terry Nation, though the conceit he used was that he simply learned of their existence through his discovery of “The Dalek Chronicles”, which he translated.”

The Daleks and their terrifying “EXTERMINATE” catchphrase were the subject of dispute between a publishing company formed by one of the late Terry Nation’s collaborators on the one hand, and the BBC and Mr Nation’s estate on the other. The complex history of licences, and oral agreements, copying (or not) of certain aspects of the Daleks were analysed by the judge to a finding that the publisher had an exclusive licence to publish, and that the historical agreements did not transfer the copyright. This case again underscores the need to specifically define the scope of a literary estate, and to investigate as far as possible existing agreements made by the creator from the outset.

 

What to do next?

Literary estates can be a complex affair and we encourage anyone who is appointed as a literary executor – or even just as ‘regular’ executor of an estate that includes creative endeavours – to get in touch with our expert solicitors to discuss the situation further so that it can be dealt with correctly and efficiently from the outset.