CoPAR Bulletin 6: Appointing a Literary Executor

Appointing a Literary Executor
by Thomas H. Wilson

The Council for the Preservation of Anthropological Records (CoPAR), in collaboration with the major anthropological organizations in the United States, encourages anthropologists to preserve the great variety of their unpublished records. Under certain circumstances, appointment of a literary executor may help accomplish this goal.

What is a Literary Executor?

A literary executor is a person given rights and responsibilities by law over an individual’s literary property, intellectual productions, or anthropological records. You may name a literary executor in your will, pass to that person whatever rights you may hold to your anthropological records, and assign to the literary executor whatever responsibilities you wish him or her to exercise on your behalf. It is important to understand that a literary executor is in addition to the executor of your will, who will have responsibility for all the rest of your estate beyond that which you assign to the literary executor.

Although you may plan with your literary executor for the future of your anthropological records after you pass away, his or her legal role will not begin until you are deceased. If you wish that person to have a formal legal role before your death, or for other legal reasons, you can create a trust for your records, and appoint a trustee and designate beneficiaries. A trust is “a legal entity created by a grantor [anthropologist] for the benefit of designated beneficiaries [college, university, library, archive, museum, family members], under the laws of the state and the valid trust instrument” (Black’s Law Dictionary, Sixth Edition, 1990, at 1508). Trusts may be inter vivos, that is, for the life  of the grantor, or trusts may be created by will. Like the literary executor, the trustee has fiduciary duties regarding the trust. A third option might be to appoint a literary advisor, without executory authority.

Why Might I Need a Literary Executor, Trustee, or Advisor?

CoPAR recommends that you arrange for the proper disposition of your anthropological records in an appropriate archive, library, museum or other repository. Perhaps you have not yet done this. Possibly you are a single person, or your spouse, children or companion lack the capability or interest to undertake the sometimes complex tasks relating to the disposition of your records. Perhaps you are partially incapacitated.

The history of anthropology is unfortunately burdened with the loss of unpublished records for a variety of reasons. Appointing a literary executor is a kind of insurance policy against such a senseless loss. If you have not already made arrangements for the disposition of your unpublished materials, you should explore creating a literary executor or trustee.

What Materials are Covered?

Other bulletins in this series discuss the kinds of records that anthropologist create, and in which they have legal interests. These include field notes, maps, photographs, video tapes, sound recordings, compiled data sets, manuscripts, course syllabi, etc. Although CoPAR emphasizes the importance of unpublished records, a literary executor or trustee might also control rights to published and copyrighted materials, and the power of the literary executor might extend to business decisions about those materials.

What Rights are Covered?

An author may pass to a literary executor any property right that he or she may rightfully assign. Literary property is “The right which entitles an author and his assigns to all the use and profit of his composition, to which no independent right is, through any act or omission on his or their part, vested in another person. The exclusive right of owner to possess, use and dispose of intellectual productions. The term denotes the corporal property in which an intellectual production is embodied; and it may consist of letters, lectures, sermons or addresses” (Black’s Law Dictionary, Sixth Edition, 1990, at 933).

In addition to literary property as defined, anthropological records would may include published, unpublished, copyrighted and uncopyrighted materials. The ability to assign rights also includes the ability to retain them and not to assign them. For the purposes of creating anthropological archives, it is usually desirable to pass all rights to the literary executor. Otherwise, the executor may be impeded in finding the best repository for an individual’s records. Many institutions will not accept collections with restrictions or contain anything less than full, clear unrestricted title.

Copyright is complex. You, and your literary executor need to know which of your materials are copyrighted. Generally, the trend has been for greater ease and less formality in copyright, and this can affect what rights you may pass to your literary executor. You may have legal title to, and possession of, a photograph, for example, but copyright remains with the photographer.

How do I Create a Literary Executor?

Creating a literary executor by will or a trustee through a trust requires an attorney. Transfer of rights to literary property and anthropological records can be made during the life of the scholar, or they may pass to the literary executor after death by testamentary instrument. Whether by will or by trust, an attorney must be involved in planning and drafting the instrument. The attorney should by knowledgeable in the legal fields of estates and trusts, and familiar with the law of intellectual property.

Do not surprise your best friend by appointing her your literary executor, which she discovers at the reading of your will. Discuss the issues first with your attorney, who will advise you on the rights and responsibilities of creating the fiduciary relationship of a literary executor or trustee, and then, based upon your attorney’s advice, speak to persons who might serve in one of these capacities. You may need to specify a primary fiduciary and an alternate. Your attorney may wish to have a meeting with all involved, if possible, to avoid confusion in drafting the instrument or with the fiduciary.

What Issues Do I Need to be Aware Of?

You create a literary executor or trustee through process of law, but one purpose of doing so is to insure that your wishes are fully implemented without recourse to litigation.

Among other aspects of estate planning, you need to know:

• What rights you have to assign, and how you want to assign them.
• What powers and responsibilities you give the executor or trustee.
• What materials you have that are copyrighted, or copyrightable.
• The tax consequences of any legal occurrence regarding the materials in question.
• What, if any, fees or commissions are due the literary executor.
• Whether a literary trustee, trustee or advisor would best suit your needs.

This list is meant to be illustrative, and not exhaustive. Creation of a literary executor or trustee has legal consequences and must be done in consultation with an attorney. Doing so in a timely manner will ensure that your literary production, intellectual property, and anthropological records will be properly cared for as you would wish.