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[self-portrait]Scrivener's Error Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.
10 October 2008

10:43 [GMT-6]

Mistaken Federalism (Part II of ???)
A while back, I started to describe a hypothetical instance based on a pending probate matter. Before I could get very far, though, I was consulted by a claimant in a way that — thanks to the procedural posture of the matter — made further comment at that time inappropriate. Now, however, the Tennessee Court of Appeals has issued its appellate opinion (PDF), which reaches part of the right result... and utterly fails to consider the underlying question that I was starting to reach for in that long-ago post.

First, a little background.1 The author in question was Andre Norton. Unfortunately, her health was not the best during her last years; neither was her choice of caretakers or advisors. This resulted in significant problems with overreaching by at least one caretaker — based on what I have learned, best described as elder abuse — and a will that was drafted less competently than I would expect of a first-year law student doing his/her first legal writing project. And things only got worse when the estate was probated; although the Court of Appeals does not make its criticism very explicit, there was a lot of professional incompetence (and possibly misconduct) in the trial court, which becomes clear only when one reads the trial court's opinion.2 In any event, the will in question purported to send "copyrights" one place (with a few exceptions) and "royalties" to another place... but not using consistent language, or structure, or anything else. Further, there are substantial questions as to whether the will is consistent with the now-deceased author's intent under any interpretation of the will, as demonstrated by both other documents and accounts of oral communications. And, just to make things even messier, Ms Norton cowrote a number of works with others, some of whom are not even US citizens or residents!

The result of the Court of Appeals's opinion looks something like this (points numbered for convenience in later reference, and not parallel to the opinion):

  1. The Executrix must be replaced, as she also holds a challenged claim in the estate that is the subject of the appeal. This is a no-brainer; the will itself should have provided for a better chain of contingent executors, and probably a separate literary executor. Either way, though, this is clearly the right result and should have been voluntarily achieved in the trial court at a much earlier stage. This is not unique to either IP or estates law: Conflicts of interest should be avoided wherever possible.
  2. The will was ambiguous in a fashion requiring reference to external materials.
  3. Those external materials include the "technical meaning" of some terms from the publishing industry and copyright law.

    Having previously disposed of the full copyrights to her co-authors and without expressly reserving any rights incident to those copyrights, we, therefore, cannot infer that Ms. Norton intended to give the royalties generated from those collaborative works to Dr. Horadam. Based on the evidence in the record and the Will as a whole, we find Ms. Norton clearly intended to award two different assets when she referred to "copyrights" and "royalties" in her Will. Therefore, we reverse the trial court's determination that Ms. Norton used the terms "copyrights" and "royalties" interchangeably. In order to properly interpret the meaning of Ms. Norton's bequests, we must examine what, if any, technical meaning is assigned to the terms "copyright", "royalty", and "posthumous publication".

    Horadam v. Stewart (In re Norton's Estate), No. M2007-00046-COA-R3-CV (TN App. 06 Oct. 2008), slip op. at 13 (citations omitted; some punctuation corrected).

  4. "Royalties" and "copyrights" are distinct terms, and distinct property interests, disposed of separately by the will. Contrary to the trial court's interpretation, Dr Horadam receives only the royalty stream from "posthumous publications" — not the copyrights, and particularly not any interest in anything devised or otherwise transferred to coauthors.

I'll have more to follow. Bluntly, the Court of Appeals reached the right result... for some of the wrong reasons, and without the authority to reach any result on the critical issue (the fourth one). In fact, the trial court below also lacked authority to reach that result. And it's all the lawyers' fault.

  1. I do not pretend that this summary of facts includes all of the nuances, or is entirely fair to everyone involved. Suffice it to say that there were a lot of mistakes, including significant questions about legal malpractice, and that this ugly situation is an excellent example of why authors and other owners of inheritable intellectual property interests cannot rely upon "general practitioner" attorneys to structure their estates. Once again, I call on the organized bar to admit that attorneys are, in fact, specialists, even if we don't get certification as such. In this particular instance, the legal malpractice appears to have resulted from more than one attorney's twin assumptions that copyright interests are indivisible (not true after 01 January 1978) and that they follow all of the rules applicable to any other personal property, such as a car, when managing an estate (never been true).
  2. Technically, I suppose one could object that it wasn't really a "trial court," but a chancery proceeding before a judge. However, as that lower-court opinion makes clear, there was virtually a trial. I am using "trial court" more as shorthand here than a technical description, because in many other proceedings — indeed, in many other states — probate is handled in merely a separate division of the general-jurisdiction civil court, not a separate court.

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