Who controls a writer’s work after they’ve written their final word?

All week long The Spinoff will be opening up about the end. Click here to read more of our Death Week content.

We often think of art as a way to keep a person alive: that you’ll never be forgotten so long as your books, paintings, music etc continue to be appreciated. But what happens to the care of that art after you’re gone? Who makes the decisions? What’s the protocol if the original work is deemed in need of an update (such as in Dahlgate earlier this year)? 

We talked to the professionals, and travelled through the labyrinth of publishing’s past, to look into the process for posthumous publishing.

What is posthumous publishing, broadly speaking?

In short, publishing books after the author of those books or texts has died. It can encompass both reprinting already published books (published while the author was alive), the publishing of previously unreleased material (work that the author will never know was made public) and everything in between.

The basic rules

Publishers Fergus Barrowman (Te Herenga Waka University Press) and Jenny Hellen (Allen & Unwin NZ) both explained that it’s all about the copyright, and who owns it once the author has gone. The publisher deals with the owner of the copyright (intellectual property), which is automatically the next of kin unless the writer has specified otherwise in their will.

An interesting case study of this is the Swedish author Stieg Larsson whose novels (including The Girl with the Dragon Tattoo) were all published posthumously (and the series completed by other writers, commissioned by the publisher). Larsson died suddenly of a heart attack in 2004 when he was only 50, and his first book was published the year after. In an early will, Larsson had stated that he wanted to leave his assets to the Socialist Party (then called the Umeå branch of the Communist Workers League), but the will was unwitnessed and so invalid under Swedish law.

The copyright then went to Larsson’s father and brother (meaning they received the royalties from book sales). Things got complicated when Larsson’s partner since 1974, Eva Gabrielsson, tried to make a claim to the literary rights, but because she and Larsson never married (apparently they didn’t want to marry because in Sweden at the time they’d have had to make their address public, which for them would have created a security risk given Larsson’s anti-fascist work for which he was also known), she had no legal rights.

Across history, writers have bequeathed copyrights to a wide range of people and organisations, for legacy and charitable purposes. In 1929 J M Barrie left the copyright to the Peter Pan books to the Great Ormond Street Children’s Hospital (the copyright ran out in 2007, 70 years after Barrie’s death, but former UK prime minister Jim Callaghan passed a special bill to enable the hospital to keep collecting the royalties which took off after the film versions of the book were made); A A Milne left a quarter of the Winnie the Pooh royalties to the Royal Literary Fund; Dorothy Parker left all of her copyrights to Martin Luther King Jr. and stipulated that on King’s death the rights were then to go to the NAACP. 

What about publishing unfinished works?

If an author leaves unfinished manuscripts behind, then the owner of the estate controls what is published, and how the work is finished and edited. Barrowman said this can go well or badly.

Publishing unfinished manuscripts appears to be a minefield. History is littered with examples of disgruntled friends of dead authors, as well as fans and family alike. Take Katherine Mansfield: after her death, her husband John Middleton Murray collected and published all of her letters as well as a biography of his late wife. Academics have long-criticised his efforts for sanitising Mansfield’s image: he was selective about what he included and omitted, in order to make Mansfield appear more demure than she really was, and to make himself look clean as a whistle.

The late, great Joan Didion was famously critical of the decision to publish Ernest Hemmingway’s last novel, True at First Light, 38 years after his death. To Didion, the decision was a mercenary publishing decision rather than an attempt to deepen the author’s body of work. An article on Enselberg Ideas makes the point that Hemmingway was always extremely precise with his own copyediting and the manuscripts he left behind were very long compared to his finished products, which were always thoroughly slimmed down and concise. It’s a heavy hand that must take a draft to a finished product and if it’s not the author who does that, then is it really theirs?

Authors can also be ignored. For example, both Charlie Chaplin and Pope John Paul II said in life that they didn’t want their unfinished writings published after they’d passed, but they were anyway.

One particularly messy and famous case is that of American author Harper Lee. The publication of Lee’s Go Set a Watchman (the so-called sequel to To Kill a Mockingbird) has been fraught with suspicion. Although Lee was alive when the book was published, she was not the driver of the publication of the new work. The story goes that eight days before Lee’s sister Alice died, power of attorney shifted from Alice to lawyer Tonja Carter. Two months after that, Carter negotiated a deal with Harper Collins and it was announced that Go Set a Watchman was going to be published, despite the fact that Lee has said, multiple times, that To Kill a Mockingbird would be the only novel she ever released. Carter said she’d found the manuscript in a lock box, attached to the MS of Mockingbird.

The publishers at the time billed Go Set a Watchman as a sequel to Mockingbird, but the book was in fact written earlier, and as a draft of, Mockingbird. Around the time of the books’ release in 2015, The New York Times published a detailed report, saying that Tonja Carter seemed to have an “unusual amount of control over the author’s affairs”, and that “in ways big and small, Ms. Carter, 50, is shaping the legacy of one of the country’s most revered authors.” An accusation of elder abuse (that Carter had manipulated Lee into agreeing to publish) was declared unfounded in court. In 2018 Lee’s will was released to the public, revealing that Carter was a trustee of a trust that Lee had transferred her copyrights into in 2011.

Carter has suggested that a third manuscript is among the trust’s collection of Lee’s unpublished words. Hoo boy.

What if I discover an unpublished manuscript and think everyone needs to read it?

If you stumble upon what you suspect could be the next great New Zealand novel among some dusty old boxes in the attic of the house you just moved into, for example, you’d have to do your utmost to discover who the holder of the copyright was. If you had no luck and you also found a publisher to publish the book, then the publisher would have to do their best to try where you’d failed. If they don’t have any luck, either, then you could go ahead and release the mysterious book.

And what about the whole changing-a-dead-writer’s-words thing?

Earlier this year the world was in a brief uproar about the decision to edit a swath of Roald Dahl’s books for children. There are many arguments as to why this is bad (tampers with history; distorts the author’s vision; avoids teachable moments; or, according to Salman Rushdie, “absurd censorship”) and conversely, why it’s good (today’s kids aren’t subjected to body shaming and sexism). We concluded that the underlying reason was about money: Dahl sells and in order to continue sales into the future, the texts are probably best brought up to date with current ideas of social responsibility.

Publishers can do this when books are out of copyright (50 years after the death of the author in New Zealand; 70 in other countries, like the UK) and/or when the owner of the copyright agrees to make the adjustments. It’s a relatively common practice. You can make your own mind up about the value, or not.

Posthumous publishing can be an extremely tricky undertaking. There’s a tension between concepts of authorship, with the hands of editors and publishers on a person’s work without their input, and when wills aren’t crystal clear then executors of estates and copyrights owners really can do as they please. An article published in 2018 on The Guardian fleshes out a litany of examples of muddy posthumous publishing if you’re eager to read more. Our advice? Be as clear as you can in life, and in writing, to save a whole lot of confusion later.