19 December 2006

Mistaken Federalism (Part I of ???)

I'm going to start a series of posts that will probably continue — with interruptions — over the next month or so. They are inspired by, but not limited to, a real matter that is currently being litigated. Do not assume that any fact stated in this series of posts — including minutiae like the sex of any person — represents that specific matter.

Famous Author (you've seen Famous Author's works in school libraries if you grew up in the US) is estranged from his family, and has lived nearly a century. Never having been married or otherwise had children, he Author has no obvious intestate heirs under the law of the state in which he lived for the last decade prior to his death. (It is even probable that whatever living relatives he has do not even know of his death, although the announcement made several national top-end newspapers.)

Famous Author had a local attorney establish a literary holding company, for both tax and other reasons, about fifteen years before death. Famous Author's works registered after that date are credited in the Copyright Office's records to "Famous Author, Inc., by Famous Author as a work made for hire." Those publishing contracts were between Publisher and Famous Author, Inc., not directly with Famous Author. He did not, however, transfer previously registered copyrights to Famous Author, Inc. Just to make things even more fun:

  • Famous Author provided creative expression to several series of fictional works. Some of these series were entirely completed before the founding of Famous Author, Inc.; a few of them were entirely completed only after the founding of Famous Author, Inc.; but many of them have split histories, and copyright records show early books as "acFamous Author" and later books as "cFamous Author, Inc., by aFamous Author as a work made for hire."
  • As implied by the previous item, Famous Author often — particularly toward the end of life — worked in collaboration with several Less Famous Authors. Some of these collaborators produced works that fall into each of the three categories mentioned in the previous item. To make things even more interesting, some of the collaborations involved more than two natural persons.

Famous Author had another local attorney write a will for him. The will divides his estate among three separate interests:

  • Certain low-value specific bequests, and the contents of Famous Author's reference library, go to a trust whose purpose is to provide working space and research materials for authors writing in Famous Author's field. No party objects to these provisions.
  • The copyrights in Famous Author's works that are "published posthumously" are to go to Miss X, a nonrelated former business associate. Miss X had no role in creating any of Famous Author's works, nor did Miss X ever have any role with Famous Author, Inc.
  • The residuary is to go to Mr Y, a nonrelated person. Mr Y had no role in creating any of Famous Author's works, nor did Mr Y ever have any role with Famous Author, Inc.

As noted above, Famous Author dies. His will therefore must go to probate. And now the fun begins, involving federalism, bad will drafting, bad record-keeping, bad statutory drafting... and probably bad faith. But this is just another pathetic cliffhanger.

In the meantime, though, you should read this entry on writers' wills on Neil Gaiman's blog. (I don't endorse everything in detail — particularly not in the sample document he refers to — but that is as much a matter of opinion and hairsplitting as anything else, and stiffs-and-gifts isn't my primary area anyway.)