Status of published work when an author dies

[ericpode]

A friend died unexpectedly several months ago, and I was named in the will to receive the residue of their estate. There was no mention of copyright in the will, but I understand that as the beneficiary of the residue this would mean that I have inherited the copyright in any of their works.

My friend had a book published of niche interest so I doubt that much was earned from royalties, but I would like to understand where I fit in so that the "right thing" is done and (for example) someone else is not pocketing royalties because my friend is no longer with us.

When a book is published, who owns the copyright? The book (like most) contains a statement that says "copyright year publisher's name" but does that mean the author signed over all rights to it to the publisher, perhaps in exchange for an agreement to be paid a royalty? I confess I don't really know how this works!

I assume that I would need to contact the publisher, but it would help to know in advance what I can claim to be the owner of, and whether any royalty payments must in law now be paid to me.

Can anyone clarify my situation?

TIA

[Nick Cooper]

The copyright being indicated as belonging to the publisher is not actually that common for books, but I would suspect it is more likely to be seen with specialist non-fiction titles. It may be that whatever deal your friend did with the publisher included signing over the copyright to them, perhaps for a one-off payment, rather than royalties. If the publication is fairly recent, there might still be paperwork around relating to it, otherwise you would have to approach the publisher for clarification. Either way, copyright will last for 70 years after the end of the year in which your friend died.

[AndyJ]

Hi ericpode,
Firstly, you are correct in your assumption that any IP rights in a person's estate will automatically pass to a residual beneficiary in the absence of any express instructions on the subject elsewhere in the will. The authority for this is section 90 (1) of the Copyright Designs and Patents Act (CDPA) 1988

90 Assignment and licences.
(1) Copyright is transmissible by assignment, by testamentary disposition or by operation of law, as personal or moveable property.
[...]

Furthermore you would also inherit the copyright in any unpublished work which came to you by the same process,

93 Copyright to pass under will with unpublished work.
Where under a bequest (whether specific or general) a person is entitled, beneficially or otherwise, to—

• (a) an original document or other material thing recording or embodying a literary, dramatic, musical or artistic work which was not published before the death of the testator, or
  (b) an original material thing containing a sound recording or film which was not published before the death of the testator,

the bequest shall, unless a contrary intention is indicated in the testator’s will or a codicil to it, be construed as including the copyright in the work in so far as the testator was the owner of the copyright immediately before his death.

However returning to the main question, it is certainly possible, indeed probable, that copyright in your late friend's book was assigned to the publisher. However such contracts are rarely perpetual, and it is highly likely that there was a termination clause in the agreement by which the copyright would revert to the author or his heirs after a set time. I think you should contact the executor or solicitor involved in winding up the estate to see if there was any trace of the publishing agreement. Obviously you can approach the publisher for the information, but you would be in a stronger position if you already knew what the contract said.
The blurb in the book can be misleading. There are in fact two copyrights at work here: the one for the text of your friend's work (the literary copyright), and one for the typographical layout of the published edition. The latter would be owned outright by the publisher, and lasts for 25 years from the date of publication. It may be that the copyright notice you saw refers to the published edition copyright. And as you mention, even if the literary copyright is still owned by the publishers there should be some rights to royalties. Again the publisher would be the first place to ask about this, but you should also contact the Authors Licensing and Collecting Society (ALCS) to register your details and they may be able to assist if you have any difficulty locating the publishers.
And what is more, you have also become the guardian of the author's moral rights. These are covered in this chapter of the CDPA and they last for as long as the copyright, that is to say for 70 from the end of the year in which your friend died. These rights cannot be transferred other than by testamentary disposition, and so the publishers will not own them. The moral right that is most likely to be infringed is the one which protects an author's work from derogatory treatment.
And finally, since it is possible the copyright in your friend's book will still be in existence at the time of your own death, make provision in your own will for what you would like to happen to these rights. At the very least make sure that who ever would inherit the rights knows of their existence and understands broadly what is involved.

[bakuman]

it is highly likely that there was a termination clause in the agreement by which the copyright would revert to the author or his heirs after a set time.

Depending on the contract, termination could also occur if the book goes out of print and the author sends a letter to the publisher seeking a reversion of the copyright. The contract should also state what "out of print" means.

This is becoming a tricky area lately with the rise of ebooks. New York publishers are now seeking control of the work for the life of the copyright, even if they choose never to exploit that right.

A few years back, author Neil Gaiman posted information about how to handle copyrighted works in your will. A friend of his, John M. Ford, died, and the rights to his works passed to family members who disliked his profession and had (at the time) refused to return his books to print.

Gaiman consulted with a lawyer and proposed a simple will that lets U.S. authors assign trustees to oversee copyrights. Googling Gaiman's name to the post title "Important. And Pass It On" should bring it up.

[Eclipse247]

Thanks, this answers some of my q's as well , it seems clear enough except who would own the copyright for any illustrations used in a previously published, inherited, but out of print >25 years book if an illustrator is named but no copyright statement is attached to that name, whereas there is one for the deceased (>25 years) author?

[AndyJ]

Hi eclipse.

Assuming the illustrations were by someone other than the author, they would have a separate copyright term based on the lifetime of the artist, plus 70 years after his/her death. Whether or not the book is out of print, or the fact that there is no copyright statement for the artist/illustrator in the original edition is not relevent to the term of protection for the illustrations. It is possible that the publishers commissioned the illustrations directly from the artist and if this was the case, it may be that the publisher acquired ownership of the copyright as part of the commissioning deal.

If you are now the owner of the copyright in an author's work and are thinking of re-publishing one of his books, you would need either to track down the artist's heirs for permission to re-publish his/her illustrations as part of the 'new' book, or to commission new illustrations if they were thought to be necessary.

[Eclipse247]

Thank you Andy,
It seems either the illustrator/heirs or original publisher might have the copyright. The publisher was taken over many years ago. Does the new owner have to notify the illustrator/heirs of these changes since the illustrator made an agreement with a now defunct company, or does the new owner have rights to all existing copyrights owned by the company they bought?

[AndyJ]

Hi again Eclipse,

Most properly drawn-up contracts would include provisions for what was to happen in the event of either party dying or being taken over etc. So I would expect that any publisher who bought out or otherwise acquired the assets of the original compnay would now be the heir to either the publishing contract or the copyright or both. Of course the corporate memory of the new publishers may not include such details, which will no doubt be one of many such contracts languishing in a filing cabinet somewhere. It is unlikely that the new owner would be under any specific obligation to inform contributors such as the illustrator, who would no doubt be expected to pick up such changes in the course of trade gossip, based on their own knowledge of the contract they signed. Just as with new company owners, it is highly unlikely that the illustrartor's heirs would keep up with these sorts of events unless they were closely involved in the running of the estate on an almost daily basis. However if any royalties were due to the illustrator (and later, to his heirs) it may be that the collecting society concerned with their distribution may have passed on details about the change of ownership. In this case I would expect the collecting society to be the Design and Artists Copyright Society DACS. You could check their website to see if they represent the illustrator you are interested in, and if so, they may be able to give you more information about the current owner of the copyright etc.