Legal Terms: A Layman’s Glossary
Anti-Copyright Notice/Copyright Waiver: Anti-copyright notices and copyright waivers are written statements attached to a poem, song, story, or other intellectual property by the piece’s creator and copyright holder. These statements typically encourage free distribution of the piece and renounce or waive all copyright claims. This immediately places the work in the public domain. Favored by anarchist publications, anti-copyright notices typically use more colorful language than the more formal copyright waivers, but both are recognized as legal instruments. This doesn’t mean everybody will abide by them. According to Wikipedia, Woody Guthrie famously attached an anti-copyright notice to all his songs, but several organizations still claim the copyrights. See also the Creative Commons CC0 license definition that follows in this section.
Contract: A formal agreement between two or more parties stipulating rights and payments in exchange for goods or services. Most publication contracts also stipulate how the work will be used and credited, where it will be available, how long the purchaser retains exclusive publication rights and reversion rights and authorial rights after the sale, and how disputes will be resolved. These aspects of a publication contract are particularly important to anyone wishing to reprint a story, novel, or game or license it for development as a film or other derivative work.
Copyright: Economic and moral rights granted to creators for various periods. When the intellectual property was created and how the rights were activated will determine how long they are effective, when they expire, and if any action is required to renew the rights. They are typically granted for the life of the author plus 70 years. For pseudonyms or for-hire work, that’s 95 years from the date of publication or 120 years from the date of creation. In addition, copyrights established prior to 1976 or the Copyright Extension Act of 1998 have different terms and provisions.
Copyright applies to authorship of written works, music, software, image creation, et cetera. Copyrights arise automatically when works become “fixed” in a “tangible medium,” such as paper, a computer file, and the like, but the works must be registered in order to pursue some forms of legal remedies. The latest legal and regulatory findings trend toward requiring registration.
Creative Commons License: A Creative Commons License is a public notice that allows the general public to share in certain rights usually reserved exclusively to the copyright holder. These licenses typically grant members of the public the right to share the copyrighted work worldwide, mainly for non-commercial uses. There are four main types of Creative Commons License: attribution, share-alike, no commercial use, and no derivative work. The nature of the license determines whether a derivative work can be used for commercial purposes. Regardless of the license, however, the creator retains full moral ownership of the work.
Creative Commons CC0 – No Rights Reserved License: According to the Creative Commons website, the CC0 license “enables scientists, educators, artists and other creators and owners of content that is protected by copyright or another database to waive those interests in their work and thereby place them as completely as possible in the public domain so that others may freely build upon, enhance, and reuse the works for any purposes without restriction under copyright or database law.” This license extends to commercial use and provides an alternative to an anti-copyright notice or waiver.
Executor or Literary Executor: A person named by the maker of a will to carry out their posthumous wishes and dispose of their property. Their duties include disbursing property to the will’s designated beneficiaries, collecting and paying debts, paying taxes and bequests, and when necessary, offering the will for probate.
A literary executor plays a similar role with respect to a writer’s literary estate. They act on behalf of a late writer’s beneficiaries, contract with publishers, collect and disperse royalties, arrange for the preservation of the writer’s papers (or in the case of Lord Byron’s literary executor, their destruction), and more.
The literary executor may be a beneficiary of the will or its primary executor. However, the complexities of the publishing industry prompt many writers to name a publishing professional, such as an agent or publisher, to carry out their wishes. Either way, the literary executor is the person most responsible for ensuring an author’s legacy. Kristine Kathryn Rusch’s Estate Planning Series details both literary estate successes, like Philip K. Dick’s, and horror stories. For your decision-making purposes, we particularly recommend the following articles in Ms. Rusch’s series:
Fair Use: Fair use is an exception to the exclusive rights granted to a copyright or trademark holder and is generally invoked when a portion of the unique, protected intellectual property of another person is used in the creation of a new unique work. For example, it’s fair use to use a quote in a written work or a sample of lyrics. The criteria applied in the determination of fair use are numerous, complex, and highly fact specific. Whether a use is fair or not generally must be defined on a case-by-case basis in the courts.
Fiduciary: A person, or a business like a bank or stock brokerage, who has the power and obligation to act for another, often called the beneficiary, under circumstances that require total trust, good faith, and honesty. The most common is a trustee of a trust, but fiduciaries can include business advisers, attorneys, guardians, administrators of estates, real estate agents, bankers, stockbrokers, title companies, or anyone who undertakes to assist someone who places complete confidence and trust in that person or company.
Intellectual Property: Intellectual property is the unique creation of one or more people who retain rights to its ownership and use. This includes stories, poems, novels, television shows, cartoons, movies, games, letters, and nonfiction books, but it isn’t limited to them. It can also include letters, ephemera, blogs, and other social media content. The term also refers to the bundle of legal rights associated with the copyrights, trademarks, et cetera. Make sure to read our guide on maintaining your intellectual property.
Living Will: A living will or advance healthcare directive specifies the actions an individual wants to be taken, or does not want to be taken, if they are no longer able to make medical decisions for themselves. As the late Senator John McCain demonstrated, it can also stipulate what kind of funeral you want, who you want to attend, and who you don’t. This can also be done through a letter of instruction, but a letter of instruction doesn’t carry the same legal weight. In some states, a letter of instruction may be ineffective to bind healthcare providers, and an advanced healthcare directive must be in a specific state-approved form. A healthcare power of attorney, which appoints a person to make healthcare decisions, subject to the advance healthcare directive, is often included with the directive.
Partnership Agreement: A contract between two or more creators who share in the development and ownership of a creative work or intellectual property such as a story, novel, graphic novel, comic, game, et cetera. It specifies each contributor’s percentage of ownership in the property and the distribution of profits, royalties, and assets. It should also stipulate who has creative control of the property, should one of the creators die or become incapacitated, and whether the joint work can be added to or amended in the aftermath of such an event.
Power of Attorney and/or Letter of Attorney: A document that authorizes a person, an “attorney-in-fact,” to act as another’s agent under specific circumstances. It is typically seen as a stopgap when someone is incapacitated by injury or ill health; however, if desired, the designation of a power of attorney may be drafted to be effective even in the absence of incapacity. For example, military personnel on assignment away from home typically use this legal instrument to allow their families or personal representatives to address household and financial matters in their absence.
Public Domain: Creative works that are not subject to any exclusive intellectual property rights are considered to be in the public domain. These works may have been created before copyright law existed, or their copyright may have expired. In other cases, the rights might have been forfeited or waived through an anti-copyright notice or copyright waiver or a CC0 license.
Trademark: A word, phrase, symbol, or design that identifies the source of goods or services, usually as branding. Generally speaking, trademarks must be registered and do not expire as long as they are in use, and as long as the trademark holder pays the registration and maintenance fees.
Trust: A legal arrangement that allows one person or organization, the “trustor,” to assign assets or property to a second, the “trustee,” to be managed for the benefit of a third, the “beneficiary.” It is often used to protect the assets and interests of a beneficiary who is too young or otherwise unable to manage their own affairs, or to manage assets for an extended period after the trustor’s death. It may also offer tax advantages when dealing with unusually large assets, but those advantages generally accrue only when the assignment of assets is irrevocably made before the trustor’s death.
Will: A legal document that describes how a person wishes their assets to be distributed after their death. It typically names one or more beneficiaries and an executor who is responsible for managing the estate until it is distributed to the beneficiaries. A writer may also wish to designate a literary executor to manage their intellectual property, as doing so requires an understanding of the publishing and entertainment industry.
Your will may be the single most important document in your Legacy Kit. It defines the person or institution who will receive your tangible and intangible assets after your death. If you desire a trust, a will directs your executor to transfer your assets to that trust, so that a trustee can manage those assets for your beneficiaries for an extended period of time. A properly crafted will, acting in concert with a trust if one is desired, can ease the burdens of your grieving loved ones and assure they are cared for in the future.
In contrast, the absence of a will could create a financial catastrophe. The state will determine your beneficiaries based on a strict hierarchy of relationships (spouse, children, parents, siblings, etc.) that excludes trusted friends and partners. The state will also decide how much each beneficiary receives in a manner that has nothing to do with the closeness of your actual relationship or their pressing needs. Finally, the cost of resolving the estate will be much, much higher without a will. In terms of both money and time, that creates additional hardship for your loved ones.
A will can be holographic (i.e., handwritten) or formally drawn up by a lawyer. Properly witnessed, handwritten wills may hold up in court, but they are more often challenged than those drafted by an attorney with a thorough knowledge of the applicable state and federal laws.