Tuesday, November 26, 2013

Death and the Self-Pubbed Writer

This is an idea I've been mulling over for some time, fine-tuned by my friend, bestselling author Barry Eisler, with contributions from my friends, bestselling authors Blake Crouch and Ann Voss Peterson.

It's based on a premise no one wants to face, but all writers should:

What happens to our IPs when we die?

I have dozens of self-published books, and I've spent years learning how to maximize revenue on these titles. There's more to self-publishing than simply pressing "publish." and there's a lot to know about this business in order to succeed.

Which made me realize something important; my heirs aren't the ones best suited to run my literary empire after I die.

My wife knows enough to ask my friends for help when I kick off. But what if we both die at the same time, like if our parachutes don't open during sex sky diving? My family doesn't know anything about self-publishing. They wouldn't even know how to log into my Amazon KDP account, especially since they'll be in shock having to ID our naked, intertwined, smashed corpses.

So my peers and I have been drafting a letter to help my heirs get the help they need in order for my literary estate to continue to be worth money after I'm gone. Self-publishing, like gardening, requires a learning curve and ongoing attention.

This is what we came up with. Perhaps writers should consider adding something like this to their will, or to at have this kept along with a will. But remember I am not a lawyer and this post is not me attempting to give legal advice.

You are free to use this without my permission. If this letter is missing anything, or you have anything to add to make this stronger, please mention it in the comments.

Some Thoughts on How to Handle My Literary Assets After I’m Dead

If you’re reading this letter, it’s because I’m dead. Sorry for that—I’m sure it wasn’t on purpose!  But it happens to all of us sooner or later, so it makes sense to prepare for the eventuality. To that end, before embarking on my permanent journey to the Great Beyond, I was talking to three writer friends of mine—all smart people, all of whom I trust—about how we might advise our heirs on our somewhat unusual writers’ estates. This letter is what we came up with. You should contact all of the people named below. They’re experienced, knowledgeable, and, again, trustworthy.

The four of us are:

(List of names, addresses, email, phone numbers, and names of spouses of four trusted self-publishing peers who understand the biz.)

So here’s why we’re doing this. A lot of my post-death affairs will be pretty straight forward—personal effects, real property, that kind of thing—and consequently, should be easily handled by any competent estates attorney. But one of my most significant financial assets is the revenue stream produced by ongoing sales of the novels and other stories I’ve written, and knowing how to properly manage this kind of intellectual property (IP) portfolio requires some specialized expertise. Accordingly, I wanted to offer some thoughts as a guideline for my heirs so they can make wise decisions about what to do with my IP assets.

If you want my work to continue to sell as well as possible now that I’m gone, I think you’ll want a literary trustee who is able to understand five basic rules in the publishing world:

1. How to access various publishing platforms with my backlist (the novels and other stories I wrote before shuffling off this mortal coil), and do what is required to keep that backlist relevant, including:

a) Which platforms to publish on, weighing the exclusivity of certain programs (such as Amazon KDP Select) vs. widespread distribution (currently B&N, Kobo, iTunes, Overdrive, Createspace.)  I’m talking about not only a knowledge of these platforms, but also the URLs, usernames, and passwords needed to access them.

b) When to change prices on titles, putting them on sale, make them free, and use advertising (BookBub, ebookbooster, bookblast) in order to maximize visibility and revenue.

2. How to exploit my IP rights (now yours) in subsidiary markets, including:

a) Foreign

b) TV and Film

c) Audio

d) Interactive multimedia and other

3. How to franchise IP rights so other authors may continue to create new works using the brands, characters, and universes I created before departing this plane of existence.

4. How to work with current collaborators to continue to maximize visibility and profits.

5. How to work with my current agent(s) to continue to maximize visibility and profits.

Because of the complexity and nuances of this profession, and because you obviously want to work with someone trustworthy, I think the best person to appoint trustee to manage the continued sale of my works would be one of the people I worked with in drafting this letter, contact information for whom is listed above.
Even if they don’t want to take on the role, they can help you find someone who can (for example, a qualified literary agent might be another possibility, but you’d really have to find the right person and make sure the terms were favorable). And they’ll give good advice regardless.

We all think 15% of the revenue generated by my literary legacy would be a fair amount to pay someone for acting as literary trustee, for as long as he or she continues to act in that capacity. If you go this route, a lawyer can help you draw up a simple contract setting forth your respective rights and obligations.

Having talked with these people (who are all generous and eager to help my heirs in this unhappy time of agonizing hell due to my absence), we have concluded that the 15% should be mandatory, even if the appointed literary trustee declines to accept it. Managing my IPs will require a lot of ongoing work, and not only should the trustee be compensated, but having a vested interest in making sure my work continues to sell will make said trustee more likely to put forth a continuous effort, which may stretch on for years.

Please contact all three of the people mentioned above, and let them pow-wow to advise my heirs on the best course of action, and then divvy up the responsibility as they see fit.

[Message from Joe:  I hope my son Talon, who has shown an interest in writing and self-publishing, will some day take on the duties of literary trustee as he learns this business, but only when he’s at least 25 and is deemed to be ready by the then-current trustee.]

Attachments

List of current works (including Dropbox log-in information and locations of files)

List of collaborators and current contracts/deals in place (with contact info and where contracts are located)

List of associates with contact info (cover artists, formatters, agents, assistants, web-designers, proofreaders)

List of platforms where work is currently available on and has been available on in the past (URLS, usernames, passwords, PayPal)

List of works in progress and unpublished works, and locations

List of current subsidiary rights contracts and end dates

44 comments:

James Scott Bell said...

Joe, I would add that all rights, title and interest in IP need to be officially transferred, and that it's best to transfer them via a living trust. Either create the living trust with said rights named specifically (e.g., books, e-books, drawings, scripts, screenplays; Right to publish, exploit, license, etc.); or if one exists already create a simple Assignment to Trust document.

w. adam mandelbaum esq. said...

if you don't go the living trust route, you will need to reference this in your will, appoint a trustee, waive any bond requirement for the trustee (unless you want him to post one) and REVIEW your state's law on trustee commissions--you may be paying too much. if the IP holder is you personally, you will need to establish an estate account to receive income, and have your trustee as signatory. You might be better off, as Mr. Bell said, with a living trust, or having a Sub S corporation owning these literary rights, and have your family as co-shareholders, but with limited rights of income distribution during your lifetime. You really should go to an estate planning attorney in your state for this one. The apprentice chopping with the master's axe might wind up buying his shoes with 50% off--if you catch my drift.

Jonas Saul said...
This comment has been removed by the author.
Anonymous said...

Also be sure all your works are formally copyrighted with the US Copyright Office as you go along. If you wright books under a penname, it's usually a good idea to copyright them under your real name (you can identify a penname when you do so). That avoids later issues as to whether the penname person was really you or not.

(This is not legal advice. Consult a lawyer).

Mark Terry said...

Well worthwhile.

Jude Hardin said...

We're going to die someday?

Dude, that sucks.

Rex Kusler said...
This comment has been removed by the author.
R.E. McDermott said...

Joe,

Thanks for this. It's quite helpful to those of us who are bit further down the road of life.

Joe Konrath said...

Congrats on your double release, Jude!

Jill James said...

Thanks. We don't like to think that far down the road, but we must.

Jude Hardin said...

Congrats on your double release, Jude!

Thanks, Joe!

Hollis Shiloh said...

sex sky diving

....
They wouldn't even know how to log into my Amazon KDP account, especially since they'll be in shock having to ID our naked, intertwined, smashed corpses.


That's one way to go.

Joe Konrath said...

That's one way to go.

People could say, "Konrath fucking died."

Personally, I think it would be much cooler if they said, "Konrath died fucking."

Besides, who wants a long, lingering, drawn-out death? I'd much prefer death in under 30 seconds.

:)

Lyn Perry said...

Eternity means I can catch up on all the books I didn't read when I was alive. ;)

fannyfae said...

Joe:

Thanks for this. My spouse and I are currently going through all of the estate planning stuff and this was one of the issues that has come up. Very timely!

Colin M said...

Jude

I count 3: Blood Tattoo, Sycamore Bluff and Racked with Joe. -- And another coming out soon with Joe. You are Smokin!! Congrats.

Joe,
A few questions come to mind although this is not my area of expertise.
Who will have final authority over business decisions? What if your son (or kids) don't agree with what the trustee is doing? Can one or any of your kids fire the trustee? Can you put in some controls such as: trustee cannot sell rights to Barnes and Noble; cannot list any book as free for more than 8 weeks of any year; cannot allow any franchisee to allow Jack to start wearing pink, etc.
You mention your son not taking control until age 25, or when he is deemed fit to do so. Who decides this?
If your kids are shareholders, who has final say? What are the plans should they disagree in a major dispute? I'm sure there are corporate rules for this, but can you make contingency plans for this if it is a corporation or is it then based on corporate law at that point?

Just a few thoughts.

Colin

Jude Hardin said...

I count 3: Blood Tattoo, Sycamore Bluff and Racked with Joe. -- And another coming out soon with Joe. You are Smokin!! Congrats.

Thanks, Colin! It's always fun to get new work out there.

Ochin Pakhi said...

Thanks.........
...

David L. Shutter said...

Jude...just picked up Sycamore Bluff and plan to read it this week. All the best with it!

Jude Hardin said...

Jude...just picked up Sycamore Bluff and plan to read it this week. All the best with it!

Cool! Thanks, Dave. I ended up self-publishing that one, and I didn't think to add an acknowledgements page, but you were certainly a great help. Shoot me an email with your mailing address, and I'll be happy to send you a signed paperback. Hope I got that helicopter stuff right, or at least close! :)

nlo said...

Damn. Good things to think about. Even if you might not want to. Reminds me of the Army. Had to pick the song to my funeral and everything. Apparently you're not allowed to ask for "Super Freak" to be blared with bass and force everyone to drink. Silly Army.

Maria Jordan-O'Reilly said...

Thank you for that thought provoking post Joe, as a relative new coming to self publishing it is not something I have taken the time to think about.

Can't see myself sky diving in the near future, but will be putting together a short letter with similar information for my husband and children. They do not even know the mechanics of logging in to my Amazon account!

So thanks again, it's amazing how these details completely slip your mind when you are actively pursuing your writing dreams. I would hate for my back catalogue to become priceless after my demise, and for my family to have no clue how to benefit from it.

Anonymous said...

agree with James Scoot Bell and W. Adam Mandelbaum Esq. Thanks Joe, very important for all authors including those not yet pub'd but who have completed or nearly completed mss. IRS is watching, re future incomes to heirs from pub'd and unpub'd mss, espec from late authors whose works might be pub'd posthumously... And if in the US, the inheritance is ever reinstated, one will need a good tax lawyer/cpe as well.

If one has had a bestseller, or a group of works that sell well, I would suggest not choosing a fellow author, as it is a HUGE amount of work to keep works in print, renegotiate, espec foreign editions which expire etc. I thought your suggestion of an agent or IP lawyer was right on.

What several of my colleagues have done is assign at least one or more of their copyrights to a university or a charitable institution that will make sure to manage the materials for their share of the ongoing revenues. Many of those orgs have kept various works in print with new editions for decades, for they take a commission of all sales, but also do all the work, including seeking placement, reviews, news articles, being interviewed about the authors' work etc.

thanks Joe. Kris Rusch also has a good article on copyrights' value for one's 'estate'. To those of us who have had three old cars in a row that never worked, espec in the midst of snowstorms, 'estate' is a rather hilarious idea. But it is how the culture sees whatever little sack of nails and phosphorus you have left at the end of life.

Greg Strandberg said...

It's something even those with one book and who may have given up already should think about.

Of course we know they're not, but imagine them getting knocked-off somehow and then a year later their book catches fire. Who's going to reap that windfall?

I think as time goes on you'll see more people put notes in those places family look in first while cleaning out houses on Sunday afternoons when they'd rather be watching football, something to the effect of "hey, I published on Amazon once, here's the info."

Lisa Fender said...

Great post! I saved it in my bookmarks to work on doing this too! thanks for taking the time to write this!

Cherise Kelley said...

I read in a similar thread on KBoards Writers' Cafe a few months ago that you have to set up the trustee BEFORE you die and tell Amazon who it is so that your books stay on sale and your reviews are maintained. It's probably in the terms of service for each vendor. I plan on looking into that soon.

allynh said...

This is a problem that has no real solution, yet. Look at all the bestselling authors who died and their books vanished because they did not set up something real _before they died_.

And it's not just before you die, it's when you get infirm and drooling, unable to run your own accounts. You need to set something up soon before that happens.

Depending on how big your books are, I see having multiple authors joining together in some foundation or trust that is an ongoing business, with real staff, real people making a career of the business. In other words, set up a publishing house that exists only to take care of your or a group's work.

Or, and this is sad to say, look at your books as ephemeral, fun for the day, making lots of money, for a time, then gone when you go. Look up lyrics to _Kansas_ - "Dust in the Wind" for what I mean. HA!

Because if you do not set up something real to keep the books going when you get drooly or die, they can become the greatest curse to your heirs as they scramble over possession of what they think is vast wealth when it's only a pile of crumbling paperbacks.

Victoria Noe said...

The timing on this could not be better. My husband and I are about to re-do our will (since our daughter is no longer a minor).

I told him I was putting all my writing "stuff" in her name rather than his because she understands the business, at least a little.

Thanks for these great tips. I feel better already!

author Christa Polkinhorn said...

Great advice! Thanks, Joe.

Jeff Ezell said...

Joe,
I have a simplified solution to the complexity you foisted upon us… DON'T DIE!
Must admit don't know the secret to that accomplishment either, yet.

Joe, how have you explained to your son Talon, the naked coital crash scene?
Will we, your faithful followers, should such an event occur, be advised of mutual orgasmic attainment? It would be so unlike you, Joe, not share that.

I am thankful for many things this year. One of which is you, Joe, and your unselfish willingness to share the writing-publishing info we can use to make better decisions.

Happy Thanksgiving to all.

Chad Swayden said...

Great information, Joe. Now if I could only get my empire built! Working on it!

Patrice Fitzgerald said...

Ahem... I'm a lawyer, and I've been meaning to do this. I do have a savvy child who is interested in a literary career herself and will be the logical person to be involved. Thanks for the kick in the pants.

And can you get me the name of the naked sex skydiving outfit? Just don't tell the paparazzi when I'm planning to do it.

Perhaps that was a poor choice of words.

Jan Moran said...

Agree with James Scott Bell--in the U.S. a living trust is important for those with intellectual property assets to have. Good points in this article.

Now, all my heirs have to do is figure out how to access sites with passwords I can hardly remember myself :)

David "TheToolWiz" Schwartz said...

Wouldn't it be easier to set up an LLC with the 4 of you as members, your heirs as minor members, then when any of you die your units are split among your heirs? Because I'd imagine the first thing they'd ask the others when you die is, "can't you handle this for me?"

Darren Sapp said...

There might be some other structures that relieve your loved ones of dealing with day-to-day issues. Each of them would likely require an interested party, such as a literary agency for example, willing to be a party. I’m sure we all want our work to stay with our families, but there may be situations where this is not the case. My apologies if this has already been covered in part or in full.

A “Buy-Sell Agreement”, where the agency buys an insurance policy on the author. The loved ones get a cash settlement and the agency takes over ownership of the intellectual property. This works well in businesses where loved ones don’t have the expertise or desire to run the business.

Something like a “Viatical Settlement,” where a sick author sells their empire to someone like an agency. This frees the author from the day-to-day, gives them cash for medical or comfort, and they can pass on the cash to loved ones. Authors might consider giving power-of-attorney to someone to perform a structure like this should the author become disabled.

Barry Knister said...

Nothing could be less relevant just now, but I will tuck this one away. Who knows? I may one day have a literary legacy. And if I'm vouchsafed a window before the big sleep, I'll click on your post and follow directions.

Lee Drugan said...

Not a topic that you really want to think about, but you need to. If your work is going to continue to sell after your death it will need to be handled by someone that knows what they are doing and fulfills your wishes.

historywriter said...

Excellent post and very important. I've been thinking about this, but not sure how to do it. One of my sons is my executor, but I want to get this into the will. I don't quite understand the living trust. Wonder if I should talk to an IP lawyer. There is a place I can go to where I can get questions answered --sponsored by an arts council.

Ryan L. Petty said...

Joe et. al.,
Thanks.
I don't think there's one simple answer but the comments of Bell, Mandelbaum, Kelley and Sapp reflect the seriousness of the situation.
What you've written is good, so far as it goes, but because you have each produced a critical mass (a non-hobbyist's body of work), your draft letter (even in conjunction with a fairly standard will) would be like the knife taken to the gun fight.
Serious estate planning is needed... or a mechanism to offload the IP... that transfers liquidated value to your heirs, etc., either ahead of time or upon your death.
And you may well want to solve the problem mentioned by Sapp... of possible incapacity during your lifetime.
In any event, I think you might expand the letter to include incapacity of projected long duration... and you might want to establish an annual review of the letter, updating it, perhaps as you review your annual business plan (if you have one). It's a good year-end or tax-time activity.
One not-unrelated thought that occurs is that there's a significant business opportunity to be developed and pursued to purchase IP from self-published authors and/or provide on-going self-publishing management services to authors.
I'll be publishing a book this spring (my first since 1981) and several more at close intervals (and in another land and time far, far, away, I'm a former attorney), so, though I don't have the current and substantial need you do, I've been thinking about this problem/challenge/opportunity.
I thank you and your colleagues for, again, providing leadership and will stick with you in future discussions of this topic.

Ryan L. Petty said...

Really like the way you've incorporated this discussion into your 2014 Resolutions for writers. We all must take care of such things and you are pointing the way. Thanks for all you do in reaching out to others in this often un-businesslike profession.

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Lola Smirnova said...

thanks again for all the information to Joe and others who provided the comments! very informative and helpful.

m.o.kane said...

Legally, IP is like any other property. If you don't have a will--and a letter to your children is not, in most states, a will--executed with the proper legal formalities, the state will decide which of your heirs will get your property under state legislation. That property includes your IP. If you own a tractor and upon death, your children get your tractor, they may use it or let it sit and rot. It's theirs, and they have control over it If you want to make sure that they take care of the tractor and preserve it, you have to include provisions for this in a will.

20 or 30 years ago, probate courts paid little attention to IP. Now that's changing. And what happens if you die without heirs? The state then takes your property. Do states have offices to manage escheated IP? You would think that at least New York and California would have such offices, but I've never heard of them. Post-mortem IP management sounds like a great niche for enterprising probate lawyers to fill.

Kristina Kaine said...

I haven't read all the comments but I highly recommend using a password manager like Last Pass. Then you only need to provide your master password with your will. Always make sure one trusted person has your master password anyway.