Volume III, Issue 4 -- November, 2002
Executors, Duty, the Law -- and a Proposal
The Kafka Dilemma
Keeping the Cash Flowing
Conflict of Interest
Who cares ?
A Proposal -- and little hope
Literary AfterlifeOnce an author dies, pretty much everything is out of their hands. Where they once had complete control over their copyrighted materials -- the books they wrote, the works they published (and didn't publish) -- upon their death this control passes over to their estate and heirs. Contemporary copyright law, especially in the United States, then keeps the works copyright-protected for decades more (see this section of the American Copyright Act, for example)).
The literary legacy an author leaves behind is (vaguely) recognised as something special, not to be treated like the savings account, furniture, or stock portfolio that might also be part of his or her estate. Indeed, it is not uncommon for authors to name a "literary executor" to handle that literary legacy aspect of the estate. Responsibilities of such literary executors vary, but often include deciding who has access to what private papers, as well as working towards keeping old works in print and overseeing the publication of new editions and/or previously unpublished material (from collected letters to juvenilia, etc.).
Literay executors are often -- though not always -- heirs themselves, i.e. they have a (completely) vested interest in maximizing the profits from what an author left behind. Often they also have a significant interest in preserving a particular image of the author; until relatively recently it was not uncommon for widows (and the occasional widower) and other heirs to destroy large amounts of private correspondence and other material to keep personal information about an author from posterity. (In the present age, where scandal sells, this no longer appears to be as popular: heirs tends to preserve (and eventually flog) as much as possible.)
The Kafka DilemmaAuthors often leave instructions (in their wills or elsewhere) as to how they expect their literary estates to be handled; apparently they do not all do so. Unfortunately, last wishes are often taken largely for granted and/or circumvented (which might explain why many authors don't bother leaving any behind in the first place).
Perhaps the most famous case is that of Franz Kafka. Despite clear instructions to Max Brod that all his unpublished work be destroyed Brod chose to preserve all this work and indeed began a veritable Kafka-industry with it, presenting many of these texts, diaries, etc. under his editorship (and thus benefiting both in terms of prestige and cash). Apparently no attempts were made by anyone, including Kafka's heirs, to prevent Brod acting counter to Kafka's express wishes.
The Kafka dilemma is one apparently often faced by executors: authors can be unreasonable in the constraints they set upon their works after their deaths -- or at least one can argue that those constraints are unreasonable. In the case of Kafka, few complain about Brod's actions, arguing that Kafka possibly didn't really mean it (he could have destroyed the works himself if that was what he really wanted, some have argued) or that posterity deserves these great works, regardless of whether Kafka wanted them preserved in this state or not. Ignored is the fact that Kafka had apparently thought this through -- he had issued specific instructions dealing with this exact situation -- and that Brod's actions can only be seen as both a betrayal and as illegal. However, no one was in a position to protect Kafka's interests -- or rather Brod, who took it upon himself to supposedly protect those interests, recast them in a manner suggesting his actions were legitimate.
Brod is not the only one to have gone against the express wishes of the author he was entrusted to protect (and to have gone unpunished for his violations): other recent examples include the estate of Thomas Bernhard. The author and playwright's testamentary instructions included a prohibition of all productions of his plays in Austria for the duration of the copyright. Long before that term expired, a mere ten years after his death, those in charge of the estate simply decided that enough time had passed and again allowed the (remunerative) staging of Bernhard's plays in Austria. Again: no one stepped in to uphold the author's (theoretically) legally binding rights and wishes.
The main argument for such utter disregard of an author's wishes is that there are overriding circumstances. Bernhard's estate apparently believed that his legacy was better preserved if his plays could be seen on the Austrian stages. Brod apparently believed the world deserved to see even Kafka's unfinished work. The public -- always eager for greater access to an author's work, rather than less -- of course agrees, and so it would appear to be "in the public interest" to disregard some authors' demands.
All this ignores the simple fact that the author did not want it so: Kafka and Bernhard and many others in fact specifically said what they wanted. And, curiously, no one would argue that, while they were alive, their express wishes should be similarly contravened. It is only once they are conveniently dead and out of the way that everyone feels it is fine to do pretty much as they please with this left-over intellectual property.
The question is: why this change of attitude with an author's death ? Why is it suddenly acceptable to disregard an author's wishes when they have passed away ?
The work's copyright protection outlasts the author -- and s/he is free to assign it to anyone, and to place any constraints on the use of that copyright. Yet if the person (or company or group) that controls the copyright and the beneficiaries (these are not always the same) agree to use the copyright in a manner counter to the author's intentions and demands no one is likely to stand in their way. Indeed, often no one can.
Eloise returnsIn the 1950s Kay Thompson wrote several Eloise-books, illustrated by Hilary Knight. They were phenomenally successful, and Thompson cashed in with all sorts of marketing tie-ins and looked to be establishing an early character-franchise (with everything from lunchboxes and dolls to Eloise on TV). Then she had a change of heart. She would not allow any but the first Eloise title to be re-published (meaning the sequels have been out of print since the early 1960s), and she never allowed publication of Eloise Takes a Bawth. As an article by Marcia Biederman from The New York Times (15 November 1998) explains:She restricted the marketing of her original classic, yanked three sequels out of publication and appalled by a 1956 television version, forbade any future screen versions.A more recent article, in The New York Times Magazine (by Anita Kunz, 6 October 2002), calls it "a Garbo-esque gesture". With Thompson's death came a quick reversal, as the estate almost immediately allowed the original three sequels to be re-published and now has also released Eloise Takes a Bawth. Marcia Biederman's The New York Times article also mentions:No movie offers will be considered until the estate is settled, Mr. Abelman said, but the road to Hollywood has been cleared for a deal that agents value in the millions.We are not privy to Kay Thompson's testamentary instructions and possibly all these actions -- the re-publication of the books, the movie negotiations -- are in response to her specific instructions. Somehow, however, we doubt it.
The Eloise-revival has gotten a lot of press, but curiously the media does not seem particularly interested in whether or not it goes against Thompson's wishes (as it would certainly appear to). It is taken for granted that the heirs and executors can do pretty much as they wish, and the public is simply glad to have access to the old Eloise-titles -- and the bonus of a new one !
Kay Thompson is, of course, in no position to complain (or sue).
The situation is instructive: we should recall that other reclusive and reticent authors lurk out there. J.D.Salinger, getting on in years, seems an obvious example. It is not known whether he has any unpublished work hidden in his drawers, but it is known that he has strongly opposed publication of any of his writing from the past decades, even letters. It is also known that Salinger has refused all offers for the film rights to his Catcher in the Rye -- rights that could bring a nice cash-windfall.
Possibly Salinger might appoint a literary executor with instructions to make public everything he ever wrote -- and sell the film rights to all his work -- as soon as he died. Those instructions would be easy to follow. But what if he instructs his executor and heirs that none of his unpublished writing is to be published for the duration of the copyright ? (To spin it out even more: what if those executors and heirs also find a couple of complete manuscripts -- undeniable masterpieces -- among his things after his death .....)
And what if he instructs his executors and heirs never even to consider selling the movie rights to any of his work ?
Unfortunately, as long as his executors and his heirs are in agreement -- and the dollar signs at the end of that tunnel make agreement oh so much easier -- they are pretty much free to disregard all his wishes. And who, after all, would complain ? And more importantly: who would have legal standing to challenge them in court ? (Answer: no one -- except the state, which curiously takes little interest in these matters.)
Keeping the Cash FlowingThe posthumous exploitation of authors is increasingly popular -- there's some money to be made here, and lengthened copyright protection means the cash-cow lasts longer .....
It can take on absurd forms: among the more amusing are the famous dead authors who still manage to churn out a book (or more) every year, such as V.C.Andrews. (For an instructive and amusing account, see this article from The Washington Post (12 June 1994) regarding the treatment of the V.C.Andrews-name as a taxable asset.)
Possibly V.C.Andrews expected nothing less from her heirs. Similar exploitation of brand-names (though usually not the author-name) isn't completely unknown -- "James Bond" novels do keep appearing too, though at least there's a bit more honesty here (the succession of authors -- Ian Fleming, John Gardner, Raymond Benson -- actually identified). For Fleming the Bond-writing was very much a commercial enterprise (he even sold a half-interest in himself (or at least his output), and was among the first to keep the book-copyrights not in personal but in essentially corporate hands). Other sequels -- of Raymond Chandler's work, for example -- already seems more questionable again .....
In recent years there has been a considerable to-do around the Margaret Mitchell estate, trying to squeeze some last dollars out of the Gone with the Wind-copyright. Mitchell herself apparently wasn't eager for a sequel, but that didn't stop the heirs. They commissioned one in 1979, from Anne Edwards (and decided it wasn't good enough), then decided on Alexandra Ripley's Scarlett. More recently, there was some fuss about Alice Randall's different take on the original novel, The Wind Done Gone -- publication of which the estate vehemently fought against (though one wonders how things would have played out if they had gotten a decent slice of the proceeds).
Now comes news that Mario Puzo's estate is soliciting a writer to pen a follow-up to The Godfather (see articles in The Independent and Salon). Since Puzo felt he was selling out with the original work, one wonders how he would feel about this idea ..... (Interestingly, again: few people seem to be wondering about this at all. Puzo is dead, so his opinion no longer seems to matter to anyone.)
Conflict of InterestThe fundamental problem with entrusting one's literary legacy to anyone is the resulting conflict of interest. Be it an independent literary executor who is supposed to act merely as administrator or trustee or, as is more often the case, literary executors who are also the actual estate-beneficiaries there are great incentives for those entrusted with controlling the copyright to act in a profit-maximizing way, i.e. to look at the author's "literary legacy" in purely financial terms. But, while authors (like most people) generally want to leave their heirs with a bit (or a lot) of financial security, most have different posterity-priorities regarding the work they leave behind. They want their literary legacy to live on -- and, often, not to be debased (i.e. not have the final dollar squeezed out of the copyright by selling a Catcher in the Rye TV cartoon-series (or Gone with the Wind-sequel, or another Lolita-movie, or whatever)).
Most often the literary legacy is bundled with the rest of the estate, and simply handed over to the heirs. Copyright, however, is different from most of the rest of the estate -- the cash, the other holdings. It does not merely represent instant cash-value: it also offers continuing cash-flow. And depending on how one does it, that flow can be substantial.
Unfortunately, the actual literary legacy -- and in particular, what an author wishes to leave to posterity and how s/he wishes to be remembered -- are often at odds with a profit-maximizing (or even just profit-making) strategy for the copyright.
Once the author is dead it is also a very uneven relationship: while still alive the author sets down the rules, but, once dead, is in no position to defend them. Indeed, it is the estate that is entrusted with seeing that the author's wishes and demands are carried out -- but it is also the estate that has the greatest incentive (and is in the best position) to deviate from the author's testamentary stipulations.
Even where the executor is not directly a beneficiary (i.e. doesn't profit inordinately from the selling-out of an author, as the actual heirs do) a conflict of interest remains. It can still be financially worthwhile -- and it can help enhance the prestige of the executor -- to act contrary to an author's wishes -- the example of Brod, who made a career out of Kafka, is particularly instructive. Similarly, the literary executor responsible for selling the movie rights to Catcher in the Rye is probably going to be better off in quite a few ways from the one who doesn't return the Hollywood executives' phone calls, even if s/he doesn't (directly) get any of the proceeds.
A particular problem when executors and estates go against even the express testamentary wishes (the last will and testament) of a writer in these copyright-related issues is that, as long as the executor and the beneficiaries are in agreement (and since they are often one and the same this is generally the case) there is no aggrieved party with any standing to challenge even the most outrageous abuses of the copyright. The aggrieved party is solely the author -- and the author's posthumous representatives are the very people who are responsible for the aggrievance.
(Where there are testamentary disputes about authors' estates -- such as recently regarding Ted Hughes' estate -- it is almost always entirely about money and the distribution thereof: some heir thinks they are getting less than their fair share. But those disputes are just like any other testamentary disputes and have little to do with literary legacy issues.)
The one party that might be able to interfere almost never chooses to do so: the state. One would imagine that the state would have some interest in upholding the letter of the law -- including the explicit instructions of authors in their wills. But states bend over backwards to please heirs, and in such a situation, where the only aggrieved party is dead and buried (and thus ineligible to vote and unlikely to complain to anyone -- politicians, the media, etc.), it is easy to let it pass. It can even be argued that it is in the public interest to go against an author's wishes -- to give the public access to the long-lost Eloise-books for example. (The commercialization of the copyright, to the greatest extent possible, also benefits the state by simply generating more cash (which, among other things, leads to additional tax revenues).)
Who cares ?Not many people seem to care about the prostitution of the literary legacy of authors, even when it is done counter to their express wishes.
The world -- and the US in particular -- have become crassly commercial and consumers are largely indifferent to such outrageous abuses of personal image as when the heirs of famous figures allow these to be used in advertisements for products that these figures never could themselves have endorsed (such as Einstein being used to flog computers or John Wayne or Humphrey Bogart being used to tout beverages -- to name only a few of far too many examples). Cashing in is certainly the American way -- but it is by no means restricted to the US.
The integrity of books -- as per the wishes of their authors -- is almost harder to defend than that of public image. Copyright protection does exist, but only for a limited time: at some point (admittedly, given current law, far in the future) everything becomes fair game. A century from now, there will -- or could (barring additional Congressional action extending copyright even further) -- be available at your local bookstore (or whatever the equivalent of the day will be) all the Eloise-sequels and dozens more written by anyone who wants to write one, side by side by yet another Gone with the Wind-sequel -- and the newest V.C.Andrews, of course (written now by anyone who cares to call themselves by that name). And, yes, inevitably: someone will have made a film of Catcher in the Rye. So (the argument possibly goes) why not let the heirs make some good money before everybody prostitutes and debases the intellectual property, as will eventually happen anyway ?
What is the big deal if some lazy heirs who don't really want to work for a living cash in on Daddy's copyrighted material (or Mommy's or whoever's they could get their hands on) -- even if that's not what the original copyright-holder wanted ? What indeed.
There's something nice about copyright protection extending beyond the life of the creator, allowing them to provide for loved ones (or their favourite charities or whatever) even after their deaths. There's no very good reason for it (copyright is meant to foster creativity (and allow the creators to profit from it), but dead people can't create: allowing their work to continue to be protected by copyright probably actually lessens total creative output).
This particular copyright regimen -- warts and all -- is the one we have opted for (it is, broadly speaking, similar across the world -- though details (and enforcement) vary greatly). Central to the concept is the creator's position with regard to the copyright: there are such things as writing for hire, but most literature is copyrighted (and thus controlled) by the author. The author has an absolute say -- as long as the author is alive.
Suddenly, upon death, another party controls the copyright -- and with it is free to do essentially whatever they wish. There are constraints: a literary executor who wishes to place all of an author's works in the public domain will likely be successfully sued (and removed from the executor-position) by those that would otherwise have benefited from the copyright-royalties (the author's heirs). But since heirs and executors usually have the same interest (profit maximization from the copyright) such differences of opinion are rare.
The author's loss of control over the copyright -- even if they set it down in writing, and instruct their executor(s) and heir(s) before their death -- is complete. There is almost no way an author can be sure any or all the stipulations they set forth regarding how the copyright is to be handled after their death will be adhered to. Except in the most egregious cases of mis-management (which usually means: not making money where there is money to be made) executors and estates can do as they please.
The public is largely indifferent. Everyone likely hopes for a similar copyright windfall (maybe Dad will pen that bestseller before he croaks, and then we can cash in ...) and no one wants any bothersome outside meddling with how they then handle it.
Unfortunately, literary legacies are treated like real estate holdings and stock portfolios: get the most out of them (by selling or holding them, or whatever means possible ...). But literature is a different kind of legacy -- and that is too often forgotten.
A Proposal -- and little hopeAuthors don't always know best, even regarding their own work. But they get to do exactly as they please with it during their lifetimes, and there should be no reason why they shouldn't be able to do the same after their deaths -- even if they decide to be petty and mean (no access for biographers ! leave works out of print !).
Authors should better prepare their literary legacies, and be aware of what might be done with it (Catcher in the Rye - the video game) and leave clear instructions as to how they wish their intellectual property treated and used.
Most importantly, authors should appoint independent literary executors.
There's the rub, of course: there is no such thing. From Poe's Rufus Wilmot Griswold (every author's worst nightmare of an executor -- at least until recent times, when a whole bunch of greedy heirs begin to look just as bad) to their favourite academic institution or charity: every executor has a vested interest in, often, going against an author's stated wishes. Usually the reasons are financial, but there are others as well.
What is needed, of course -- and this is our proposal -- is a completely independent authority. One would have thought this would be the state, stepping in every time heirs and executors agree to ignore the terms of an author's will, but the state (generally) couldn't care less (and there's usually nobody to even bring it to their attention, much less complain). So something else is needed -- a Literary Executor Foundation of sorts -- which could be appointed to act as executor by authors (for the literary pieces of the estate, not the rest), with the understanding that it would act exactly according to the author's wishes, regardless of how outrageous these are.
The problem, of course, is in making such an institution independent. It would, naturally, have to be a non-profit -- and would have to be set up in a way that it could not profit from whatever actions it took on behalf of the author (something easier said than done -- even if executors are not beneficiaries it's hard to make them completely independent of the cash-flow generated by the literary estate).
Independent outside funding on the scale to sustain such an enterprise -- okay, it's unlikely. (Just think of the war-chest required to fend off the lawsuits from disgruntled heirs who can't cash in on these literary legacies to the extent they had anticipated .....) And it's not even certain that authors' rights could be successfully defended: heirs' arguments that it is in the public interest to publish Kafka's diaries or the Eloise-sequels (as it might very well be, for a number of reasons) might suffice to convince a court to overturn the terms of a will (or direct an executor to interpret the stipulations more liberally ...).
It would be something, already, if there was a culture of respect for authors' rights (i.e. that these extend beyond their deaths), but of course there isn't. Everyone would rather have access to more, rather than less. Millions would go see that Catcher in the Rye movie, if it existed, regardless of how Salinger felt about the making of it. And so authors' rights are likely to continue to be utterly disregarded after their deaths. Ah, well.
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