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My father's letters

 
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BerryB
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PostPosted: Thu May 03, 2012 2:14 pm    Post subject: My father's letters Reply with quote

Hello,
My author father remarried a few months before he died in his eighties. He left his estate to his new wife. After the funeral, I was informed by the solicitor that he had also left his copyright to this "friend" - I didn't know as yet that the woman was his wife. During his lifetime he wrote many letters to me. Who owns these letters?? I have no contact with the woman.
I would be grateful for any help
BerryB
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AndyJ
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PostPosted: Thu May 03, 2012 9:21 pm    Post subject: Reply with quote

Hi Berry,
There is little doubt that you own the letters which were sent to you. However ownership of the copyright in them technically belongs to your father's estate - ie his new wife, until 70 years from the end of the year in which he died.
So the only problem which might arise is if you wished to publish the letters as this would involve 'copying' them in some way, for instance printing or scanning them. However if you wished to exhibit the original letters, as this would not involve copying, there could be no objection from the estate.
You do not mention if there is anything else in your father's estate which warrants a mention of copyright in his will. It is rare for such a clause to be put in a will just for normal domestic correspondence etc. As you have not met your father's new wife, I have to assume that she is probably unaware of the existence of the letters you hold. Even if she is aware of them, her control over the intellectual property rights is of little practical use as she does not control the actual letters and thus could not exploit them in any way without your permission.
I hope this clarifies matters.
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BerryB
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PostPosted: Fri May 04, 2012 9:12 am    Post subject: My father's letters Reply with quote

She inherited enough money to buy property in France, to set up her own business and buy property at home for her own three children. My Father had published over 40 books and made many media programs. Without my wishes a biography has been written - taking a bias I thought was unfair. None of the children/grandchildren inherited a cent!!
I met the woman - she even gave me handkerchief at my father's funeral!! But I had to sign a 'secrecy' form six months later in order to have any information about the Will. And it was only then that I learnt of the secret marriage. Though at the funeral I suspected things. She is almost ten years younger than I am! Of course time has passed and at this moment in time however the woman, although only a few months married to my father, now uses his name.
So even my mother's published memoirs (she had died three years earlier and she hated this woman I now realize) also belong to this woman?
Lastly, my mother would have loved to have seen her Memoirs carry on. Do you think I could digitalize them and publish them for free???

Thanks so much Andy
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AndyJ
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PostPosted: Fri May 04, 2012 12:45 pm    Post subject: Reply with quote

Hi again Berry,
Thanks for the additional information. I sensed from your earlier post that there might be more to this than was at first apparent.
From what you have said the clause in your father's will was clearly intended to cover his literary legacy rather than his personal letters, but unfortunately they nonetheless form part of his intellectual property, unless a court were to find them not eligible for copyright for reasons of being too trivial, but given your father's status as writer and well-known personality, I suspect that would not happen.
Given your obvious antipathy towards the new wife, it might be worth consulting a solicitor about whether you have grounds for challenging the will.
As far as your mother's literary estate is concerned, unless she left any specific instructions in her will about her intellectual property, the normal course would be for it to pass to your father, and so in turn to his new wife on his death. If you know that your mother left a will, it might be worth getting a copy from the Probate Registry and checking for yourself whether it contained any specific mention of her wishes on the subject of copyright after your father's death. If your father had a family solicitor it is possible that he might also have dealt with your mother's affairs, so that is another place to check. As for your father's will, I am surprised by the confidentiality requirement. In the normal course of events all wills in England and Wales are publically available via the Probate Registry once the Grant of Probate has been issued. Only in the most exceptional cases (eg the Royal family) will access to probated wills be denied.
Returning to the specific copyright issue, I think it would be unwise to assume that you can publish your father's letters or your mother's memoirs without permission from his estate. If you are not keen to deal with the new wife herself you could ask if she has an advisor or solicitor with whom you could correspond.
You also need to be careful about trying to take advantage of the fair dealing exemptions - for instance if you contemplated publishing your own biography of your father and wished to quote from the letters - as the exemption for the puropses of criticism or review do not apply to unpublished works such as private letters.
Quote:
30 Criticism, review and news reporting
(1) Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement and provided that the work has been made available to the public.
[...]

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BerryB
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PostPosted: Sat May 05, 2012 9:47 am    Post subject: My father's letters Reply with quote

Hi again Andy,

In fact my parents were Irish and died in Ireland. At the time of the funeral in 2003, and afterwards, I gathered that Probate wasn't required as nothing was left? Is that possible? Before he died, my father had more or less given away all he had, principally to his new wife and her children and their children after. Later, it wasn't so much the Will that was secret as was the Marriage which took place weeks after her own husband's death - which the last wife doesn't keep secret any longer as she makes use of the name. As it is a long weekend, I can't contact the Probate Office till Tuesday. Concerning my mother, she left a Will, but under Irish Law, all came to my father. I know she left various small requests, but these were not respected as my father thought them "silly". I also doubt she thought far ahead enough to worry about her Memoirs. I doubt her Will would have been registered in any way? I know there were Bank Accounts later in the names of my father and his new wife. So presumably all would have gone to the new wife as the last person alive without having to fuss about Wills in that area and so on.
And concerning contacting the wife or the solicitor, my father had a "Sect" and these people were members of it. I refused to join - so as in such groups, outsiders are kept very much out.
So my question remains: who owns my mother's Memoirs? (She hated the Cult) and if eventually I wanted to publish under any form my fathers letters to me what would happen. Thank you so much again - Berry
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AndyJ
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PostPosted: Sat May 05, 2012 11:43 am    Post subject: Reply with quote

Hi Berry,
Once again, thanks for the additional details.
The Irish dimension adds some complications. Obviously up to now I have been talking about what happens under UK (and as far as wills are concerned English and Welsh) law. That said, the Irish Copyright and Related Rights Act 2000 is substantially the same as UK law on the main issues already discussed, namely that copyright subsists in letters, the term of copyright, the fair dealing provisions and what testamentary arrangements apply in relation to the transfer of copyright.
The Irish law on inheritance and the disposition of wills may well differ from that in the UK so you would need to check that with a solicitor familiar with Irish law although I'm sure the Irish Probate Office staff will be able to advise you once they re-open
Clearly the existence of the 'cult' that you mentioned may make things harder but if there is a legal remedy concerning the will(s) of your parents, or the administration of your father's estate, that will apply equally to the members of the 'cult' as to anyone else. The key to the way ahead may lie in obtaining copies of your parents wills, which if they are not lodged with the Probate Office, I believe a court could order to be produced, if there was any suggestion of improper execution of the will(s). If your father did not leave a will then there are special rules which apply to the division of the deceased person's estate: see here for some details.
Only when you have these details will the position of your late mother's literary estate become clearer. Unfortunately her views on the 'cult' and its members will have no effect on what happened to the rights in her memoirs if this was not recorded in a will. However given the apparent strength of her feelings, it is more than possible that she made some provision for what should happen after your father's death. A well-drafted will normally covers a number of contingencies, such as what should happen if the main (or sole) beneficiary dies before the person making the will. That would give an indication as to her intentions prior to the arrival of the new wife on the scene.
As for what might happen if you were to go ahead and publish your father's letters without permission from his estate, it is very difficult to say. First, since the new wife is living in France it will depend on when or if she becomes aware of the publication, and once she is aware, whether she realises that the letters form part of the literary estate, and beyond that whether she cares about it. Assuming that she does care she will no doubt seek legal advice which could cover a number ways forward, ranging in scale (and increasing cost) from a cease and desist letter to full-blown litigation. It also depends on where and how you decide to publish the letters. If you do it yourself, say via a website, then this increases the chances of the wife becoming aware of your publication but the remedy for her may be much simpler in that she can demand that you take down the letters and undertake not to re-publish them (a so-called cease and desist letter). However if you publish the letters in book form or in a learned journal, for instance, she is likely to take up the matter with the publishers, maybe seeking an injunction to prevent further sales and the withdrawal of unsold copies, plus damages. The publisher in turn might sue you to recover their costs. In that instance you may be held liable for having authorised another person to infringe copyright contrary to Section 16(2):
Quote:
(2) Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.

So not a wholly satisfactory answer I'm afraid but this question really does fall into the 'how long is a piece of string' category.
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BerryB
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PostPosted: Sat May 05, 2012 1:59 pm    Post subject: My father's letters Reply with quote

Again - Andy - thank you so much for your advice and help.
What I really would like to do is publish my mother's Memoir with, say an explanatory preface of half a dozen pages, in Kindle form, plus eventually a couple of photographs. I would charge a very nominal fee - if anything - simply to cover the costs. For the time being, I would leave aside the letters and personal memoirs on my father's side.
As the publishers no longer exist, I presume only my father's second wife would have any interests at stake, if even then, as it is unlikely any profit would be involved. My reasons for wishing to publish my mother's book stem from a promise I made to her shortly before she died. Also, it would be an act of love.
I will call the Offices in Dublin next week. By the way, it is I who live in France - hence indeed my lack of full knowledge of all that was happening in Dublin over the years while my parents were still alive. My father's second wife and her family live in Dublin.
Thank you again and again
Berry
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BerryB
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PostPosted: Tue May 08, 2012 8:57 am    Post subject: Letters Reply with quote

Dear Andy,

I've just rung Probate - Nothing...
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AndyJ
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PostPosted: Wed May 09, 2012 9:55 pm    Post subject: Reply with quote

That's disappointing but it might still be worth contacting the family solicitors with whom you dealt previously concerning your father's copyright, as they might well have drafted your mother's will and might have retained a copy (this is fairly normal practice for solicitors). As you were a beneficiary under the will you would be perfectly entitled to ask for a copy if it exists.
Incidently I have sent you a pm.
Andy
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BerryB
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PostPosted: Wed May 09, 2012 10:30 pm    Post subject: Reply with quote

Dear Andy... I was unable to access the pm - and BTW I wasn't a beneficiary. I have contacted the solicitor but he hasn't responded. I suppose it is a bit emotional. The sort of urge one has to bring flowers to a grave. Thank you for taking so much thought and trouble - Berry
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Christopher
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PostPosted: Wed Jun 27, 2012 4:33 am    Post subject: challenging a will Reply with quote

Now you have need a will lawyer who will help to your for get to your own right, you should have to fight because that is your father property, If you have found a lawyer, tell to your complete situation, may be you will be get to your own right.
rsawills
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