Thursday, September 29, 2011

Be My Guest: Nash Black Part 2

Death, Publishers, Intellectual Property Rights, and the Probate Court

When the owner of a publishing firm dies, what happens to the intellectual property rights of the individual authors whose works were purchased and publish by the firm?

The simple answer is they become not the property of the author, but the assets of the owner’s estate, which is subject to settlement by the Probate Court.

A sole proprietorship is what anyone can have who files their income tax using the small business Schedule C form under their social security number. It requires no other official documentation. IF Publishing, owned by Irene Black, is such an entity and has existed for nearly twenty years.

E-books have made this form of publishing venture attractive in recent years. The only things an individual needs to start their business are a computer and a group of ISBN numbers (10 for $250) registered with Bowker. Plus a working knowledge of the various platforms formats used in the e-world. Then you can entice a few friends to sent you their manuscripts, draw up a simple contract, pay them an advance, and you are in business as a publisher.

Accident–owner is dead. The business entity ceases. Now what happens to those copyrights, which were paid for by No Such Publisher?

This is an example of a friend who has been publishing through small publishers (sole proprietorships) for over thirty years.

There is a book out there of which she is ashamed. Her publisher demanded it through a clause in her contract which specified a full length work. Her forte is short stories. Book was written and published. Owner died. The copyright to the book passed to the heirs and has remained in print to this day. The author ignores it and makes no effort the sell it during her frequent appearances as a story teller, but as long as it remains in print she cannot sue to regain her copyright or take it off the market. The title belongs to the heirs of the original publisher’s estate, not to the author of the book.

The Probate Court of whichever state the business entity resided does not consider intellectual property rights, but property rights. A copyright is property in the eyes of the court along with the computer, chair, desk, paperclips, etc. If the deceased had a will the settlement of an estate is much easier from the standpoint of the executor and if there is no will the court will appoint one. The copyrights owned by the publisher remain with the estate and do not revert to the author as intellectual property rights.

My suggestion for both the sole proprietor publisher and author is to consider a lease of copyright contract for a specific period of time with a null and void at death clause. But this agreement must be entered into at the point of sale, not after the death of either party.

This is the limit of my expertise. My experience is in cleaning up after a death, at times with a will, and others a nightmare of heirs going down to the fourth generation before anyone still alive could be located.

There was only one item of personal property my sister and I both wanted from our mother’s estate; our grandmother’s churn. We flipped a coin and she won. I told her if I ever wanted to use it, I’d borrow it. Her reply, “If you ever use it, I’ll give it to you.”
Nash Black is the pen name for Irene Black and Ford Nashett. They create ghost stories and mystery novels drawn from the culture and folklore of Kentucky’s Cumberland foothills. A non-fiction title describes the business side of writing.

Visitors is the first title published by Nash Black under IF Publishing where they retain the rights to all aspects of the publication. It is available as a trade paperback edition and on all electronic mediums. You can follow Nash Black on Twitter.

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  1. Oh, I enjoyed this! Fiddly copyright issues fascinate the frustrated lawyer in me.

  2. Today’s segment I found very informative. I know nothing about death and publishing E-books. My next book will also be in kindle and E-books. You have a great cover for “Visitors.” HAGD

  3. Interesting topic and something I hadn't ever really considered. Thanks for sharing.

  4. Very informative, thank you! I love your story about the churn.

  5. Copyright as paper clip--interesting stuff. Thanks for sharing this legal perspective.

  6. What a fascinating post. Thanks so much for covering this isue. As an author getting ready to self publish this is great info to have!

  7. Thank you for the great comments.
    Nash Black

  8. Thanks for this post! i really enjoyed reading it!!!


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