Business Musings: Prince, Estates, and The Future (Contracts/Dealbreakers/Estates)
Last week, the death of Prince hit me hard. I was in the middle of teaching the Romance Workshop, here on the Oregon Coast, and working my tail off. A satellite radio station that I always listen to had breaking news—something they never do (which is why I listen to them)—that I could barely hear. I heard “prince” and “died” and “young” so I’m wondering Prince Harry? Prince William? I pick up my iPad across the kitchen to look up the news, and that’s when I see it.
Prince Rogers Nelson.
I burst into tears—and shocked myself.
While I love some of Prince’s songs, I would never have called myself a Prince fan. I didn’t love his work, like I loved Michael Jackson’s or David Bowie’s. Jackson’s death hit me hard, Bowie’s hard as well, but not as hard as Prince’s.
I was thinking maybe it was the exhaustion from the workshop, but no. I realized it was because Prince had a huge influence on the way I go about handling business. Doing my work. Taking control of my contracts, my royalties, my art.
I immediately planned an entire blog post on Prince and business, although I wasn’t sure I was going to write it yet, partly due to the aforementioned exhaustion, partly because I knew a lot more information would come out in the next few weeks about his business, his craft, his work—everything.
So I niggled with doing a post on another topic, sparked by The Passive Guy’s response to my post on copyright last week. PG said:
Under current contract practices, the author is the only person who has to think in the long term while everyone else in the publishing business is focused on the short term.
Spot-on, and something quite important to the contract/dealbreakers series I’m doing.
I was still on the fence about how I was going to approach the blog—Prince, control, business, or thinking long-term and contracts—until late yesterday, when I saw on the news that Prince did not have a will.
I sighed. I was afraid of that.
Now, before I get into this, realize that six days after Michael Jackson died, the family also assumed he had no will. (Or maybe the family hoped he had no will.) The attorney who held it, John Branca, submitted the will six days later, after he returned from a vacation he had started before Jackson died.
The will had to go to probate court, along with any other will that any other attorney might have had. Branca did not believe the will he had was the final will because it was seven years old, and Branca hadn’t been Jackson’s attorney in the last few years before his death. But no other will appeared. (From Michael Jackson, Inc: The Rise, Fall, and Rebirth of a Billion-Dollar Empire by Zach O’Malley Greenberg, Atria Books, 2014, p.225.)
And so far, a week after Prince’s death, no will has yet appeared. His sister has gone to probate court to have Bremer Trust, Prince’s long-time bank, to act as special administrator for Prince’s entire estate for six months.
To say that this is a mess is an understatement. Right now, the financial press values Prince’s estate at $300 million, but that is probably low. The financial press figures out the value of celebrity estates through public filings, news articles on deals made, and guestimates about the net worth of things like Prince’s “right of publicity”—in other words, the value of his image and his name.
Dean and I handled a small estate several years ago, and that took six months of Dean’s life (while I kept writing) full-time. Prince’s sister’s request to appoint Bremer Trust shows some good sense and savvy at a dark time. Thank heavens. Because no family can handle this, particularly a mess like the one Prince (might have) left behind.
Why would someone as smart as Prince about business make this kind of mistake? A million reasons, some of them psychological. None of us believe we’re going to die, not really. And Prince had no children to leave things to. He was famously private, and putting together a will that would handle an estate of that size, with all of its future earnings potential, means that lawyers, financial advisors, and estate planners would have been combing through every aspect of his life, trying to figure out what would happen past his death.
Prince would have turned 58 in June, which sounds old to many of you, I know. But he was at the height of his creative powers, and if he had lived a normal lifespan, he was probably counting on another twenty years at least. Putting together a will was something he probably thought he could worry about later.
Trust me, he had a lot to worry about now.
Like so many of us, Prince handled his own business. He hired help, of course. Otherwise continuing to be creative would have been impossible. Sometimes he partnered with a record label, sometimes he did not. But he had his fingers in everything.
He had his hands full. Estate planning was probably something he figured he could do later. Of course, later never came.
I’m sure that a lot of projects died with him. A lot has been written just this week about all the music he kept in a temperature-controlled vault at his Paisley Park estate. Speculation about what’s in that vault is rife, but Prince was clear about it. He believed the music in that vault was raw, not ready to be released, for whatever reason. He made conflicting statements about what he wanted done with that music—burned upon his death or eventually released, once it was ready.
It’s not ever going to be ready now, not the way that Prince envisioned, anyway. It’ll be up to whoever ends up managing the estate.
I’ve been working with estates this past year, and let me tell you, that estate managers vary as greatly as people do. Some estate managers don’t give a rat’s ass about what they’re managing. Others see it only as a cash cow. And still others forget that they even have an estate until reminded by someone like me.
Only a few estate managers seem to be aware of the legacy they’re entrusted with. I’ll deal with some of this later. Some of the blog posts are already written, but I’m not ready to release them yet. (My own tiny vault of blog material, I guess.)
But let’s return to Passive Guy’s quote, shall we? After all, the focus of these blog posts at the moment is contracts and dealbreakers, not estates, although that’s tied in.
Last week, I discussed a huge change in publishing that I’ll need to spend even more time on in future blog posts. In the past, traditional publishers saw their role as that of manufacturing and distribution. (In fact, look at some of the discussion in the comments of PG’s post to see how clear that used to be.) Now that major conglomerates have taken over publishing, traditional publishers are more interested in the intellectual property rights they’re buying than they are in the actual physical books they’re producing.
Not that the traditional publishers plan to do much with those rights besides sit on them at the moment. (There are reasons for that which I hope to explore in future blog posts as well.) But the fact that they do means they are looking at books as income properties, investments, not as products.
Which lead to this analysis by PG:
Of course, an investor who bought into a mutual fund can sell his/her shares and have nothing further to do with that fund and its managers. A hedge fund that purchased a publisher can sell the publisher and be done with it. Since no US state permits life-time employment contracts, a publishing executive or editor can either quit immediately or wait a couple of years, then bail out on a failing publisher.
Only the authors who signed contracts that last for the full term of the copyright are tied to whatever corporate entity once called itself a publisher, but now is a hedge fund asset, for the rest of their lives plus 70 years.
Think about that, people. When you sign a traditional publishing contract, you’re tying up the rights to that book for decades. There’s no way out of that analysis—unless you can get a term-limited contract. (A contract that will only exist for, say, five years, with a right of renewal…or not.)
But it’s not just traditional publishing contracts any more. Just yesterday, I was digging through the rules for a major international contest. The contest, which has a huge prize pool, is open to all writers, not just beginners. I’ve submitted work in the past, and have had no problem with the contest at all. I was thinking of using the contest deadline to jump-start a project.
Before I even put the deadline on my calendar, though, I looked through the contest rules, and I’m glad I did.
Because, in the years since I last submitted to the contest, the rules have changed.
By entering the contest, you give the contest and its designated publisher the right to distribute the work. If you win one of the prizes, you give the contest exclusive rights to the work in four different languages worldwide, “including the rights to reproduce, distribute, publicly communicate and transform the work.” If you look at last week’s post on copyright, you’ll see that you’re licensing (for a few thousand dollars) the entire copyright to the work for one year, with no guarantee of royalties or any other fee.
Once the work is published in ebook only, the rights become non-exclusive. But the contest still has licensed all the rights to the work. So they can make a movie or a game or whatever they want to from the work. What kind of compensation does the writer get?
A portion of the income derived from those rights as laid out in the agreements that the publisher has with its other writers.
Huh? What does that mean? I have no idea, because I’ve never seen that publisher’s contracts, nor am I privy to what other writers have negotiated.
And then there’s the kicker. The winners must sign all documentation that transfers these rights—
Simply from entering this contest.
Needless to say, I have crossed the contest off my list and will never participate again.
But let’s pretend that I have participated. Let’s pretend that I sent the manuscript to the contest, immediately giving the contest the right to distribute the work. Then let’s assume that I die tomorrow.
How would my estate ever know that the contest has these rights? Because if I’m stupid enough to submit a story to this contest, I’m probably too stupid to print out a copy of the rules from that contest and attach that printout to the documentation that I have about entering the story in the contest.
Tiny decisions that I make every day, lost in my files because I’m spreadsheet challenged (and I started writing before this massive computing power that we all take for granted), have an impact on my work in the future. If someone got my estate tomorrow, they’d be able to figure out what rights I’ve licensed, where the contracts are, and what rights are available for resale, but it would take some work.
I have a cover-your-ass will, something that would give my heirs some guidance, but not a whole heck of a lot. More than Prince (might have) had, though, so (in theory) the state of Oregon won’t be involved.
But I know how much work it will be to manage my estate. A friend of mine, with maybe 20 or so novels to his name, wrote an eight-page single-spaced sheet of instructions to the person who will inherit under his will, explaining terms (like intellectual property) and where the heir can look for more information on things like copyright.
In the middle of this document, which he said I can crib from when I get back to my estate posts, he writes that he has attached a spreadsheet which is a master file to all of his work, including the name of every work published, the ISBN of the print publications, date of publication, what channels the work has been published in, and whether or not the work has been registered with the copyright office. He added a separate file of all his passwords, and then a map on how to find the files (and their backups) for everything he’s ever written.
Okay. I am not that organized. Not in a 2016 way. But I have paper files of everything, and most things filed away in folders in filing cabinets for my work, as well as computer back ups that are up to date, and the computers themselves (several of them) which are within one week of each other as to being up to date.
Will that help someone who inherits my estate? Not really. They will feel like they’ve had a small city dumped on them. (We felt, when our friend Bill died, like we had a large house dumped on us.) But within that small city, there are maps, and those maps provide guidance.
Here’s the point I want to make, though.
Like Prince, I have spent decades protecting my work and my copyrights. I have thought clearly about what I want to do with the work in the future, and I know what I want to do with each item in my backlist and catalogue.
Most of that information—the information on what I want — is in my head, which means it will all disappear when I die.
If I’m okay with that, I can leave things as they are now.
If I’m not okay with it, I need to plan as meticulously for my death as I have throughout my writing career.
It does no good to protect your work during your lifetime only to lose it upon your death.
All of those negotiations, all of that hard-fought work, all of those copyrights returned, reserved, and never licensed, mean nothing toward your legacy if you don’t plan for that legacy.
I can guarantee that Prince did not plan to die in April of 2016. I’m sure he thought he had decades ahead of him, time to plan all of that. Maybe he has an as-yet-undiscovered will. Maybe.
But if he doesn’t, his musical legacy now resides with the disparate members of his family. If they prove to be more mature than Michael Jackson’s family—less interested in money and more interested in preserving Prince’s work—then his legacy will survive just fine. Maybe not in the way he intended, but in a way that will give future generations access to his music.
But we can do nothing about the Prince estate. We can only handle ours.
If we sign contracts that tie our work to a publishing company that might or might not exist for the next hundred years (lifetime plus seventy), if we submit stories to contests that will own them for decades to come, if we sign away the right to make a film from our work just by signing a non-disclosure form (see last week’s post), then we are doing a disservice to ourselves right now.
But we’re also doing a disservice to our heirs and to our fans. Because we are creating intellectual property. And property continues to earn revenue for decades after our deaths.
That’s how the laws work. If you’re only planning for this year or next year or the next ten years, then you are failing not only yourself, but your future.
If you want a legacy, if you want your work to be read long after you die, then you need to provide for that.
The first step in providing for that is at least a CYA will, like I have.
The next step is to make sure you never sign away or license your copyright to an entity that can control it for the lifetime of the copyright. That means traditional publishers.
That means you have to learn how to stand up for yourself. Learn copyright, learn to negotiate, learn contracts.
Learn it all, then leave the proper documentation and maps for your heirs. The easier it is for them, the greater chance you have of leaving a legacy.
Pay attention to the news on Prince over the next year. It’ll be educational.
Maybe it’ll even scare you into providing for the future of your work. I know it scared me into updating my will to reflect 2016, not 2011.
And that’s a good thing.
And just an FYI: the Prince song stuck in my head today isn’t one he sang, but one he sold to the Bangles thirty years ago. “Manic Monday.” I don’t have manic Mondays. I have manic Wednesdays. The soundtrack of our lives…
I promised I would use the news occasionally in these contracts/dealbreakers posts. I’ll continue going through contractual stuff in order after one more Prince-inspired post next week.
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“Business Musings: Prince, Estates, and the Future,” copyright © 2016 by Kristine Kathryn Rusch. Image at the top of the blog copyright © 2016 by Canstock Photo/irishi.