Copyright And Value and Estates
Yes, I Know… Sounds Boring…
But has some real world aspects to it that come clearly to the front with this Kickstarter Campaign for Pulphouse Fiction Magazine.
Let me give you two examples. A negative one first, then a very positive one.
Kris and I were doing two anthologies for stretch rewards for the last Pulphouse Fiction Magazine campaign two years ago. I was doing Stories from the Original Pulphouse: A Fiction Magazine and Kris was editing Stories from Pulphouse: A Hardback Magazine. (Both are now published.)
Seems simple, right? Pick my favorite stories, contact the authors, make them an offer, sign a contract and publish the story in the book.
Well, not so much.
Many of the authors had died. And many had left no one to take care of the literary part of their estate. Couldn’t even find a couple of the authors at all, estate or alive. Imagine that, even with Google and the internet.
Now realize that we published these short stories 30 to 34 years ago. So neither book actually ended up to be the one we wanted to publish. Estates were lost, too hard to deal with, or no one cared about a thirty-year-old story.
But keep in mind those stories published all those years ago still had value and might have found a new audience for the author or their estate. IF ANYONE HAD CARED, or the author had cared and taken a little more care in valuing their own property.
But nope.
NOW A GOOD EXAMPLE…
Many of you know that I publish Kent Patterson’s stories in Pulphouse Fiction Magazine. In fact, two of Kent’s stories are two of the fan favorites that I have published so far.
I publish first-time-published stories right beside reprint stories, but with almost no exception, all the stories are new to you. In this modern world, distinguishing between a first published and a reprint is just stupid beyond words if all the stories are new to all the readers.
Kent died in 1995 from the results of Polio when he was a kid. He always was in a wheel-chair or on crutches the entire time I knew him and his untimely death was the result of the polio. He was in a children’s polio ward when the polio vaccine came out and he never had a chance to get the vaccine. (Now idiots are avoiding vaccines for something that will cripple them or kill them. Thank heavens for millions of children, people back in the 1950s were a lot smarter.)
So when Kent died suddenly, Kent’s good friend and bestselling writer Jerry Oltion took charge of Kent’s estate and managed over the years to place a lot of Kent’s stories, making Kent’s sister some steady money. Then I came along with Pulphouse Fiction Magazine and knew that just about everything Kent wrote was a Pulphouse story. So I called Jerry and I have published a Kent story almost every issue now.
I thought I was going to run out, since Kent, before his sudden death, just hadn’t written that many stories that we knew about. So I was taking with Jerry about that possibility and he spent an entire day going through every bit of Kent’s papers and writings that he could find, boxes of stuff Jerry had kept since 1995 and found more stories, most never published.
And he found a young adult novel Kent had finished just a week before he died that no one in New York wanted (Jerry tried for years), but now I am reading it and it is amazing so far. So I might bring back serializations to Pulphouse as the original incarnation had.
It is now going on 26 years after Kent’s death and his estate is still making money from Kent’s wonderful writing, thanks to Jerry Oltion being a great friend and understanding the value of Kent’s property. And an entire new group of fans are getting to read stories like “Spudwrangler” and ‘The Wereyam.”
And if you are one of the idiots who think, “My writing won’t matter to me, I’ll be dead.” Then guess what? You really will be.
But Kent Patterson is far, far from dead. And thanks to Joe Straczynski, Harlan Ellison’s good friend, Harlan’s works are still alive and getting out in new editions.
Copyright has immense value. It is property. Start treating it with respect, even though you might not be selling much right now. It is still valuable property.
And please back our Pulphouse Fiction Magazine Kickstarter campaign. I promise as the editor I will bring you some of the best new fiction being done today, and some of the best fiction from different times in the past that you might have missed. If I can find the author or their estates, that is. At WMG Publishing, we all try really hard when we want a story. Idiot writers with bad or no estates drive us nuts. But we still try because even if the author didn’t think so, we believe their stories have value.
17 Comments
Amy
It’s great that Kent and Harlan had good and knowledgable friends to manage their estates. But what about those of us who don’t? Your post raises the question of what we should do.
I’d love to leave my stories behind as an income source for my family but I don’t think it’s realistic to expect my family to know or to learn how to manage them. They’re not publishers. I’d rather appoint a professional literary estate manager to handle my estate and – for a cut – have them funnel the money to my family. But is that possible, especially given what a scam-sodden place publishing appear to be? Do such estate managers exist?
dwsmith
Agents tend to do it for traditional writers and I doubt that any money reaches family from those estates. Too easy to just not pay it out.
And for those of us who want to publish some of the writer’s stuff, often dealing with an agent is just too stupid for words. For example, some scammer agent thinks Octavia Butler’s work is worth far, far more now that she is dead than when she was alive, so instead of seeing Octavia’s fantastic work everywhere, you only see it in a few places that are willing to pay the over the top fees.
C.E. Petit
Amy, you’re right to be wary. The stories I could tell, but for privilege and confidentiality and all that! If you really want to see what happens when incompetence or worse reigns, look into Andre Norton. But not after dark; not in an isolated house, with the wind blowing; and I anticipate that the text messages will be coming from inside the house…
A proper estate plan can handle matters. But that proper estate plan CANNOT put everything into a trust, because “a trust” cannot do some things that need to be done under either copyright law or commercial law to properly care for artistic works. Trusts can be useful for dealing with tax issues… and that’s about it. Unfortunately, the knee-jerk reaction of the estate-planning bar, and financial advisors who do lots of “assistance” with estate planning, is that all that really matters is minimizing the tax burden, and all of their advice (and structures and documents and everything else) assume that a tax bill is the very worst thing that can happen to an estate.
Obscurity and misuse are worse. But because they don’t have easily compared numerical consequences, they get ignored, especially by people with turn-key (or, these days, merged-document) “solutions” that, themselves, usually cost FAR too much.
The key is that you do NOT have to put the entire burden on one person. It’s ok — even advisable — to have a separate “literary executor” from the “general executor” or “personal representative,” and it’s probably necessary if there’s any possibility of a dispute among heirs. (Hint: If there’s more than one potential heir, there’s a possibility for a dispute.) That person can have full, independent power, or power subordinate to the general executor. Different jurisdictions and different circumstances determine what’s most workable and appropriate.
The key point: There ISN’T a one-size-fits-all answer here. There are even a few (very few) agents I’d trust to handle this… but none of them are Big Names, so at least on that Dean and I agree.
dwsmith
Folks, Listen to CE here. He knows what he talks about.
Except I can’t imagine an agent I could trust. (grin) And agents retire and your estate ends up lost in some agency where no one remembers you in two years or cares. I inquired about the RA Lafferty estate a while back because his stories would fit in Pulphouse Magazine at times. Turns out he gave his entire literary estate to Locus Magazine (Charles Brown when Charlie was alive) and Locus assigned it to an agency. I just shook my head and tried to imagine a time I would want a RA Lafferty story that much to deal with all that mess, and couldn’t. Sadly.
dwsmith
Hey, C.E, this may sound like the dumbest question to ever come out of my mouth (and that is going some, let me tell you… (grin)). Is there a literary clearing house list in existence at all? I have never heard of one, which means nothing since I am not a joiner and belong to no writer’s organizations.
C.E. Petit
To my knowledge, there is no reliable clearing house that has significant reach or long-term credibility. An organization I won’t name here has one (it was started by Bud Webster), but it’s not comprehensive… and can’t be, not even within that organization’s field. Not for lack of trying, but for lack of capability that would apply to any such effort.
The fundamental problem is that we actually have fifty-seven distinct probate systems in the US (fifty states, DC, five Insular Territories with their own probate systems that are specifically recognized for this purpose as being the equivalent of states, and the catch-all federalism for the very, very few US citizens with no state of residence — primarily US citizens born overseas who have never established a physical residence in the US). And they don’t talk to each other. They don’t use the same laws. And they’re definitely unaware of copyright (or other aspects of intellectual property)… and the Copyright Office does nothing to educate either the probate systems or the probate bar. (For those who haven’t figured it out, I have held the leadership of the Copyright Office below minimal standards of professional regard since approximately the dawn of civilization. It has been thoroughly coopted, and arguably borderline corrupt, since the passage of the Townsend Amendment. Go ahead — look it up, it will help you understand just how screwed up US copyright administration has been and is, and whose interests are served by it.)
Now it’s entirely possible that there’s a clearinghouse organization that does a darned fine job with what it has, but that hasn’t come to my attention. I think that the systemic barriers will prevent it from being truly good enough.
dwsmith
Thank you. My observation as well, only I never would have said it that well or that detailed. (grin)
Chong Go
By “literary clearing house”, do you mean an agency someone could pay a standard royalty to in order to use a work that had gone out of print and for which no copyright owner could be found with a reasonable effort? That’s something I’ve wanted to see for a long time, because the amount of great, “lost” works under US copyright law drives me nuts.
Fwiw, one of the problems Ken Burns ran into when he did his “Country Music” documentary was that some of the estates wanted insane amounts of money to use their music in the course of a two or three minute segment. Those people didn’t get profiled, or what was used actually belonged to other organizations.
dwsmith
Chong Go, no. I just meant an address data-base for estates. And yes, the Andre Norton estate or the Octavia Buttler estate are both examples of stupid pricing issues. Andre’s estate is more of a cluster f**k than you can imagine. I published an original Andre Norton novellette in the very first issue of the original Pulphouse Magazine. I would love to reprint that in the new magazine, but alas, I am not willing to do, or put anyone else through, the problems of dealing with that estate, let along the stupidly high costs. I would have to pay her estate five times what I paid her in the first place for the story. Nope. Not that good a story.
Ed
Dean,
When you publish Kent’s story Creative Constructions, Inc. let me know or announce it here. I consider that one of the best science fiction stories of the past 40 years.
Ed
Vincent Zandri
Hmmmmm, I just turned 57 and I have a ton of work published and yet to be published. Might be a good idea to begin setting up my estate now so that my kids can keep the beast alive when I’m gone. Thanks for this Dean!
dwsmith
Vincent, yes, it would. Not that you are old, you are not, but better to be prepared at least in a basic way.
C.E. Petit
Vincent, you don’t need to be old to need a will. All you need is to be mortal. Mozart, for example, died at 35 of disease. (We don’t have any of those going around, do we?) There’s always the Big C, too.
Or you could be struck by a bus, or a drunk driver could come through your bedroom window while you’re sleeping, or you could be an innocent bystander in a gang shooting. (I’ve had estate-clients in all of those circumstances; all, fortunately, had wills.) You don’t even have to become the drummer for Spinal Tap… or guitarist for Queen (a couple of years ago, Dr Brian May suffered a nonfatal “bizarre gardening accident”).
Yes, this comment is sort of like all of those x-rays of tobacco-ravaged lungs that they showed in middle school to convince you not to smoke. Hopefully, it will have a better success rate.
Marsha
Matt Buchman (M. L. Buchman) wrote Estate Planning for Authors. It’s the only sensible guide I’ve found to date with lots of solid, basic steps to take to help your IP make your beneficiaries money. Highly recommend. And if anyone has found any other resources on this topic I’d love to hear about them.
dwsmith
Yup, a good, solid basic book, but always remember on anything, get an attorney on board who specializes in estates. Doing it yourself can cause more pain than you can imagine if you do it wrong. My friend Bill, who died almost exactly ten years ago, did a will for his stuff and he did it wrong. His intent was very clear, but he didn’t get witness signatures in the right form and Oregon is a no-intent state. He had no living relatives at all and I was the executor on the will (that wasn’t valid). Five lawyers helping me later, including one in Nevada where he died, two in Idaho where he had a box of stuff stored at my place (including an Idaho Supreme Court justice helping), and two different lawyers here in Oregon, we finally got it untangled because no one wanted the State of Oregon to get everything. Kris and I spent almost $10,000 in fees before we knew for certain that the estate would cover any of it. We were just trying to get to Bill’s intentions for his stuff. (Over $40,000 of his money went to a woman’s shelter in his will, but I couldn’t get that to them unless we got the will fixed.) Two Oregon judges even helped.
Moral of the story that I skipped a lot of… DO IT RIGHT!!!! Have an attorney who specializes in estates help you.
Chong Go
I didn’t remember Kent’s name, but I sure remember “The Spudwrangler”! Lol. That was the first story in the new Pulphouse, wasn’t it? That had me both laughing and slack-jawed at both how funny it was, and how creatitive. That’s such an impressive work.
dwsmith
Yup, that was one of Kent’s. And Jerry just sent me his first published story that was in Analog Magazine. Wonderful. I will be getting that into an issue this fall or winter.