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On Posthumous Publication and Wills

Steig Larsson and David Lagercrantz, The Girl in the Spider's Web - peoplewhowrite

Steig Larsson (l) and David Lagercrantz

What do you want to happen to your unpublished manuscripts and in-progress work after you die? It’s a macabre, but necessary thing to consider; something that’s been on my mind since a writer friend who had just completed his first novel passed on suddenly last month, and after reading of the protracted fight between the family of The Girl With the Dragon Tattoo trilogy author Steig Larsson and his partner of 32 years, Eva Gabrielsson.

Most writers have unfinished stories, completed novels that they (or multiple agents/editors) feel unfit to see the light of day, and/or pages of notes filled with ideas about new projects. The constant rejection that comes with the profession makes many of us assume these writings have no value, but Larsson’s experience should be a lesson to start thinking very differently about our work and its worth.

Before he died in 2004 of a heart attack, Larsson had written the three volume series that became The Girl With the Dragon Tattoo, The Girl Who Played With Fire, and The Girl Who Kicked the Hornet’s Nest. He had signed a contract shortly before his passing, but left no instructions as to what should happen to his work in the event of his death, or who should be in charge. Tattoo met instant success when it was published in 2005, with Fire and Hornet’s Nest following in 2006 and 2009, respectively. The trilogy has since sold over 80 million copies worldwide.
The Girl With the Spider's Web_Penguin Canada_peoplewhowrite
As a new fourth book in the series was released last month, The Girl With the Spider’s Web written by David Lagercrantz, Larsson’s family–which received the rights to his estate because they were his legal next of kin–remains locked in a public battle with his girlfriend Eva Gabrielsson.

According to New York Magazine‘s entertainment blog Vulture.com, Gabrielsson, “who tried for years to negotiate with the Larssons (though she had no legal claim) and wrote a polemic memoir about their life together”, is among a group of Larsson’s close friends furious about Lagercrantz’s continuation of the series. Writer Boris Kachka says in his Vulture.com post, “Two of Larsson’s childhood friends… [called] the project ‘grave-robbery'”. Kachka added, “writers have chimed in to say they’d never do what Lagercrantz did, and would draft their wills more carefully.”

So what should be in a writer’s will? According to PublishLawyer.com, writers should be as equally focused on the provisions in the contracts they sign, as they are in expressing their wishes in a legally binding will.

1. Be sure your agent does not use the phrase “agency coupled with an interest” in their agency agreements. If you have already signed such an agreement, ask your agent to release you–in writing–from these terms in writing.
“This is a bit of legalese intended to make the agency relationship irrevocable (again!). Ordinarily, a principal (you) may terminate an agent “at will” (or at the end of a contract term), and the agency also terminates automatically on the death or disability of the principal. This clause, however, grants the agent the exclusive, irrevocable right to represent your works for the entire term of those works’ copyright. This means that even if you terminate the agency, and the rights to your book revert back to you from the publisher, you are obligated to pay the agency a commission forever for all future sales, even if the agency did nothing to cause that sale. It could even mean you would be paying two agency commissions, which could amount to thirty percent or more. This also would apply to your heirs. Again, if you have such a clause in your agreement, you should ask your agent to give you a written release from its terms.”

2. Refuse an “interminable agency” clause.
“[S]ome literary agencies include in their agency agreements (or in the publishing contracts they negotiate) an “interminable agency” clause. Rather then limit their right to representation during the term of your agreement, such clauses grant the agent an exclusive, irrevocable right to represent your work for the entire term of those works’ copyright. The agency will be entitled to a commission on your work even after it goes out of print from the deal the agent negotiated, and a new publisher republishes it. After your death, your executor would have to keep track not only of which of your works are still under contract, but will also have to determine whether an agency has an interminable right to represent any of your out-of-print works. Your agency may merge, dissolve, or change names, providing more complications for your executor. If you have such a clause, you should ask your agent to give you a written release from its terms.

3. Appoint an executor who will fastidiously represent your work, and protect your legacy.
Your executor will be responsible for keeping track of which of your works are still under contract, and managing your estate’s relationship with your agent. Be sure to pick a person who is up for the job as the right executor will ensure that your heirs continue to receive what is rightfully theirs.

Make sure to consult an attorney for legal advice suited to your situation.

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