Jan 22

Estates, Copyright and Literary Executors

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“A will may appoint different executors to deal with different parts of the estate. [Wills, Administration and Taxation: a practical guide (1990, UK) Barlow, J. S., King, L. C., King, A. G. Sweet and Maxwell, London. p. 192.]

A literary executor is a person granted (by a will) decision-making power in respect of a literary estate.

The literary estate of an author who has died will consist mainly of the copyright and other intellectual property rights of published works, including for example film and translation rights. It may also include original manuscripts of published work.

What (usually a close family member, colleague or confidant) a literary executor will be asked (in a Will of an author) to manage is not just a portfolio of the deceased’s intellectual property, but his or her posthumous reputation.” https://en.wikipedia.org/wiki/Literary_estate

Imagine if some of the works were half finished or drafts. Do they have literary merit to be published after death in either their original or amended form? “

David Marks a prominent Queensland barrister has posted an article on the publication by a literary executor of some of the late Charles Brasch’s poems.


Interestingly a lawyer John Middleton commented on David’s article and posed the question whether lawyers need to advise their literary clients about ‘literary EPA’s’ in the event of incapacity.

Imagine if Michael Jackson didn’t die from his overdose but was permanently mentally incapacitated. Whilst having capacity could Michael have seen a lawyer to draft a special EPA appointing a literary attorney?

What rights could be exercised by such an attorney to for example, assemble a collage of Michael’s works and package them into some kind of film documentary etc? It’s worth thinking about.

As an aside there was a very interesting legal case arising out of Michael Jackson’s estate. A dispute raged between the executors of his estate and Howard Mann a close associate of Jackson’s mother Katherine Jackson.

“Mann’s company published Katherine Jackson’s 150-page coffee table book “Never Can Say Goodbye, The Katherine Jackson Story” two years ago and established a website

MichaelJacksonSecretVault.com — that the estate argued illegally used Jackson’s images and lyrics.” Although the case ended up in court the $2.5 million settlement in favour of the estate was largely negotatted by the lawyers. See Article

As for dusty old manuscripts that do not see the light of day, here is a poem by Brasch that was published post mortem by his literary executor. It was titled Winter Anemones to honour a female colleague who presented him with anemones. He was so taken by her remembering that these were his favourite that he said: `Oh, if you want to remember me when I’m dead, buy anemones on my birthday’.”

Mrs Scott still buys the flowers on Brasch’s birthday on July 27 every year.

“The ruby and amethyst eyes of anemones
Glow through me, fiercer than stars.
Flambeaux of earth, their dyes
From age-lost generations burn
“Black soil, branches and mosses into light
That does not fail, though winter grip the rocks
To adamant. See, they come now
To lamp me through the inscrutable dusk
And down the catacombs of death.”
Charles Brasch

Interestingly Charles Brasch was the son of a lawyer Hyam Brasch. He was born in New Zealand but studied at Oxford. He gained a reputation as a patron of New Zealand culture and died on 20 May 1973, leaving a rich legacy of books, paintings, and personal papers to the Hocken and University of Otago libraries. http://jewishonlinemuseum.org/portrait-people-online-exhibition

Taken from “Literary Executor – the role in practice” by David Marks.


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