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  #1  
Unread 11-01-2014, 02:04 AM
Andrew Frisardi Andrew Frisardi is offline
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Default Literary executors--liability, etc.

Does anyone here know what legal protection should be specified when you agree to take on someone's literary estate after his or her death? Specifically, this involves a literary estate that has no or almost no "market value"; it's poetry and literary essays that haven't earned the author a dime. So it is probably overkill, but I wonder: do lit. executors usually ask for a statement that exonerates them from liability should any legal issues come up at some point? One other thing: the author is English, and legalities may be different in the U.K.
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Unread 11-26-2014, 06:57 AM
Michael Juster Michael Juster is offline
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Andrew:

First, your question is not really one of my topics, but with a caveat emptor warning, let me take a crack at it.

It is my understanding that in the British/American legal tradition, a literary executor functions as a trustee, and his/her actions are immune from legal challenge as long as they are taken in good faith and consistent with the general constraints of the law.

Although any idiot can sue anyone for anything, the estate would, as I understand it, normally incur legal costs if you were acting officially on behalf of the estate. An inability to find a publisher or the choice of a publisher who performs badly should not create liability.

There are ways to incur liability. Exchanging an author's papers for a wild night with hookers would do it. Putting your own name on the author's work would do it. Generally, though, a decent person using good faith and good judgment should be fine, particularly with authors who don't produce any or much revenue (which is almost all of us).

If you are taking on the Salinger papers or something like that, you might want to negotiate with the executor of the estate for a written indemnity agreement.

Mike
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Unread 11-26-2014, 09:06 AM
Roger Slater Roger Slater is online now
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Most wills appointing trustees or executors who are not professionals (like banks or money managers) will have lengthy paragraphs (often spanning pages) designed to do nothing more than to set up protections for the trustee in terms of potential legal liability. In often redundant language, the will generally provides that the trustee has the maximum discretion allowed by law, as well as the minimum legal exposure. So I would advise you to review the specific instrument (presumably contained in the will) that creates the role of literary trustee and see if you are satisfied.

I'm presuming that there are beneficiaries who would stand to receive any continuing royalties or payments from publishers, and these are the people who could (theoretically) sue you if they don't like the way you are managing the estate. Although the risk of such a suit is low, I would still ask myself who these people are and whether they will be reasonable and cooperative or greedy and obstructionist. It's all very well to have legal protections, and you should insist on them, but ultimately it all comes down to the people involved. If the beneficiaries are assholes, you'll have problems even if you are legally protected, and if they are good and honorable people, you won't have any problems even if the legalities aren't perfect.
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Unread 11-26-2014, 10:37 AM
Michael Juster Michael Juster is offline
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I concur with Roger--he made several points more effectively than I did.
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  #5  
Unread 11-26-2014, 01:40 PM
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W.F. Lantry W.F. Lantry is offline
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Just to reinforce what Roger and Michael said: it stands to reason that, for the most part, for you to get sued, someone has to sue you. Who would be the most likely candidates?

I'm wracking my brain trying to think of famous recent lawsuits against literary executors. I'm coming up empty...

Here are a couple sites I found:

http://www.complete-review.com/quart...e4/litlegs.htm

http://www.salon.com/2012/02/28/keepers_of_the_flame/

and here's one to read, in the inverse:

whoops, had the wrong link. Try this:

http://www.copylaw.com/new_articles/finaldrafts.html
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Unread 11-26-2014, 02:55 PM
Michael Juster Michael Juster is offline
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Most of the litigation has been brought BY executors--like the Salinger estate suit against Ian Hamilton to restrict publication of content from certain letters, if I remember correctly. In the vast majority of the cases, such as the Wil Mills estate, wide dissemination of the work is viewed as the goal rather than a problem.

I am aware of one case where a person close to the poet actually took a license rather than serve as literary executor--that gets rid of the theoretical issues.

The bottom line, though, is that being a literary executor is a labor of love, and I hope that at least the widely published poets here plan carefully.
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Unread 11-27-2014, 10:22 AM
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Gail White Gail White is offline
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The only person I know who has actually taken on the job of lit executor is Claudia Gary, who did it for Richard Moore. You might want to contact her and see what she can tell you from personal experience.
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Unread 11-27-2014, 10:39 AM
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Claudia Gary Claudia Gary is offline
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Gail and others,

I'm actually the one Mike mentioned above who took a license. The license makes things clearer and establishes limits, including a deadline. Back in 2010 it was negotiated and mutually accepted as a replacement for my former role as co-executrix, or co-executor, or whatever.

Anyone who needs more information about this kind of process is welcome to email or PM me.

Claudia

Last edited by Claudia Gary; 11-27-2014 at 10:50 AM.
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Unread 11-28-2014, 07:49 PM
Julie Steiner Julie Steiner is offline
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Am I the only one too clueless to figure out what is meant by "taking a license"? If so, could someone please explain this concept, as if to a very small child? What sort of license? Everything I Google appears to be irrelevant to this context, no matter how many context words I add. I'm too profoundly ignorant even to compose an intelligent question...which, unfortunately, will probably not disqualify me for the job someday. Rats.
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Unread 11-28-2014, 11:11 PM
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Claudia Gary Claudia Gary is offline
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Julie,
Not to worry, please!
It's "take" as in "accept." A license was offered as an alternative to the original situation (described in my post above). Maybe the word "take" was confusing. But I think you'll find plenty of online references for "license."
Claudia
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