A Publisher's Conversation with Authors: What Happens When Authors Die?

 

It is Tuesday. Time to tall turkey. Monday's madness is over, and Wednesday will take us over the hump, so Tuesday it is--for some serious discussion with authors. Tuesday talks mean to address authors in waiting and self-published authors who would like to go a more traditional route or who would at least like to take their steps with a publisher by their side.

Today's topic is what happens when an author dies. I just returned from my best friend's funeral. I know that dying is a reality. (Lost my husband last year, two grandchildren the previous two years; definitely, a sad reality.) Really, though, what happens when an author dies from the legal and technical points of view?

Well, there are a number of issues that have to be managed. Some things are automatic; others are required by law; yet others depend upon surviving partnerships of various sorts (including marriage, children, and the like). We have had several authors die, alas, and we always post an "in memoriam" for them; that is just pro forma as a courtesy and because we want to honor them. There are other actions that need to be taken, and there are some options. Let's look at these:

Reporting the death:

• Publishers ask authors to keep them informed of their next of kin and who has power of attorney over their copyright and book.
• Authors should ask their next-of-kin to inform the publisher as soon after the death as possible.  

Understanding copyright:

• Copyright lasts 70 years.
• Copyright does not cease to exist upon the death of the copyright holder. In fact, as a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. 
• Upon the death of a copyright owner, the clock generally begins to run on the seventy-year copyright term. While the copyright term is still active, the person who inherits or is bequeathed the copyright becomes the new copyright owner, who will now reap the benefits of valid licensing or other agreements in place over the work.
• Copyright can be passed to a specific heir or to a third party via will.
• There is no need to renew or re-register a copyright.

Practical publication situations:

• Situation #1. An author dies, the publisher is informed, next-of-kin information is provided or is on file.
• The publisher will communicate with the next-of-kind or holder of the POA as to who should receive royalty payments and where the 1099s should be sent.
• There may be discussions as to how to handle the future of the book. Options include:
• Continue to sell and promote the book (this will depend on whether the publisher wants to do this and whether the next-of-kin wants to continue to be involved). Publishers may be willing to continue to promote a good-selling book of a deceased author. Royalties and 1099s will go out in accordance with any previously agreed-upon schedule per author's contract.
• Backlist the book. The same process will apply except that promotion will not occur, and the book will not be available through the distributor. Generally, that means special sales only or publisher website sales only. Sold books however will generate royalties that will be paid on the same schedule as indicated in the author's contract.
• Cease publication by the publisher; the publisher will revert rights sold to the new copyright holder, who can simply move on or find another publisher.
• Another, quite unlikely option, is for the new copyrighter owner to negotiate a revised contract with the publisher. Not likely, almost nothing is impossible.
• Some heirs want nothing to do with the book or the publisher; that can be a problem for publishers because royalties for already-sold books may come in for a while. Authors should make sure that their designated heir is willing to be designated heir.
• Some heirs have asked publishers to continue promoting the book and to use royalties for promotional purposes--they do not care about the money; they want their family author or friend to continue to receive recognition.
• Situation #2. A co-author dies.
• The co-authors or the heirs can inform the publisher of the death. In my experience, with co-authored books, the information comes first from the co-author because the co-author has immediate access to the publisher.
• All the options and conditions of situation #1 apply to situation #2. 
• The co-author's contract is independent of the deceased author and continues in accordance with the contract. Unless specified in the contract, the co-author gains no additional rights as a result of another author's death.
• Situation #3. An author dies before a book is produced.
• Variation 1. The manuscript has not been completed. In this case, the contract is void. Anything written to date would be covered under copyright law, and theoretically (but unlikely), an heir could finish the book and do whatever the heir wishes--seek publication by the same publisher, find another publisher, self-publish, or register the copyright and do nothing (that could be done just for the partial manuscript as well--a complicated situation that should be discussed with the Library of Congress). 
• Variation 2. The manuscript was accepted subject to specific revisions that have not been contemplated. Same deal; the contract is void. However, wherever there are heirs and publishers, creativity can enter the picture. When one of our very prolific authors died just short of the revision of a final chapter, a copyeditor who had edited all her other works was able to finish it on her behalf, and we then published the book. 
• Variation 3. The book is being typeset or is days from release. If the publisher and heir wish for the book to be published, at this point in can be. Renegotiation of the contract with the heir might make some sense. 
• Once produced, reviewers want at least 4 months with Advance Review Copy in hand in order to review and publish reviews prior to the book's release. During that time, of course, the book can be advertised and be on pre-order. It is now October.
• So, when do you start advertising the book? Six months in advance. That would be, uh, June! So, as the book makes the rounds for reviews, you should be advertising it, and it should be on pre-order.
• When can you expect orders to stop coming in and fulfillment to end? There's a bit of a conundrum. Orders may come in up as late as the holiday itself; however, printers and stores cannot usually fulfill orders coming in much after late October or early November because the demand on the printer is considerably higher than normal and service becomes competitive - earlier is always better.
• For Valentine's books, send them to the publisher in February (of the previous year), For Halloween books in September-October of the previous year. And so on.
• If you do not have a strong platform (yet) and need to build it, then plan on pushing everything to 18 months out so give you time upfront and during pre-order days to get that platform higher and better.

The bottom line is that copyright law is clear; the copyright remains in effect but is transferred in accordance with copyright law. Options abound for creativity and fate of the published or pre-published works.

Lesson for today's Tuesday talk: Be realistic about your life and the life of your book. Know that they will not be totally parallel paths, and just like you do for important possessions, plan ahead, include your desires in your will, and let your family and your publisher know what they are (along with contact information).

 Read more posts about publishing HERE.

The Tuesday talks reflect real discussions between the management of MSI Press LLC and our own authors or those would-be authors who come through our doors but don't make the cut--yet. If you have a topic that you would like addressed, leave the question in the comment section. Chances are, in our 18 years of publishing first-time and experiences authors, we have had a conversation with one of our authors that we can share with you.

                             

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