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Books Lord of the Rings The Courts

Tolkien Estate Says No Historical Fiction For JRR 337

Posted by Soulskill
from the do-not-meddle-in-the-affairs-of-greedy-lawyers dept.
An anonymous reader writes "Apparently the estate of JRR Tolkien isn't just overprotective of his works, but of himself as well. The estate is in a bit of a legal spat with the author of a fictional work that includes JRR Tolkien as a character, and in part discusses his works. The estate is claiming that this infringes on Tolkien's publicity rights, but if that's the case, would it make almost all 'historical fiction' illegal?"
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Tolkien Estate Says No Historical Fiction For JRR

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  • by intellitech (1912116) * on Monday February 21, 2011 @09:08PM (#35274142)

    That's really what it comes down to. The lawyers are just doing the bidding of Tolkien's offspring.

    • Re: (Score:3, Informative)

      by christurkel (520220)
      Ah you must mean Christopher Tolkien. He's been sucking off the teet of his father for decades.
      • Re: (Score:2, Insightful)

        by PCM2 (4486)

        You could say that about anyone who inherits his dad's hardware store. It's not as if all Christopher Tolkien has been doing has been firing off lawsuits. In all likelihood nobody would have ever seen The Silmarillion were it not for him. How different would Middle-Earth fandom be then?

        • Re: (Score:2, Insightful)

          by Anonymous Coward

          You could say that about anyone who inherits his dad's hardware store...

          Except the hardware store would need to continue to be well run. Your analogy simply isn't good. The actual truth seems to be that current, over-extended, copyrights are just like family fortunes. In my opinion, wealth should be earned, not entitled. Indeed, I'd postulate that many of the world's problems are rooted in the undeserved transfer of the world's wealth.

          • Re: (Score:2, Insightful)

            by PCM2 (4486)

            Except the hardware store would need to continue to be well run.

            Define "well run"? Christopher Tolkien has published some fifteen volumes of serious Tolkien scholarship, which is more books than J.R.R. himself published in his lifetime.

            In my opinion, wealth should be earned, not entitled.

            So if your father spends his whole life working his ass off in a coal mine to put food in his children's mouths, then dies of black lung disease when you're fourteen, his savings should all go to the state and your mom should have to go door-to-door looking for a job, huh? What is the incentive to earn wealth if you're not entitled to use

            • Tolkien could obviously leave his children all of they money he earned on his works during his lifetime. Also, his sons (and whoever else) has all the right to earn money on new works that they create. At issue is the question if an inheritor should be able to earn new money on a creation that they had nothing to do with. And not for nothing, but the original creator did not wholly invent the work themselves. They used constructs of plot and form, and often tropes and characterizations, that were not developed exclusively by themselves.. They were working off of the creation of another author themselves. We should have the opportunity to do the same.
            • by LingNoi (1066278)

              So if your father spends his whole life working his ass off in a coal mine to put food in his children's mouths, then dies of black lung disease when you're fourteen, his savings should all go to the state and your mom should have to go door-to-door looking for a job, huh?

              In the UK this pretty much happens already.. You have death tax (haha even in death there is no escape) and then any inheritance has a huge tax on it too.

              This is why you give all your assets to your offspring before you die.

              I think inherit

              • It's an interesting example of language. Legally, the tax on inheritence is called an inheritence tax. Opponents, in an effort to make it sound scarier, started calling it the death tax. As a proponent, I like to call it the Paris Hilton tax.
            • Even Warren Buffett, who is not generally in favor of big inheritances, has said he will leave his children enough money to do whatever they want (just "not nothing").

              That is because Warren Buffet is a hypocrite. His children already have the benefit of having him as a father, i.e. access to top schools, access to high quality food, access to social connections, access to luxury clothing and accessories, access to technological items that make their lives easier, and probably a nice car... all courtesy of daddy. You cannot say they are disadvantaged if their dad leaves them nothing, because if they even put a half-assed effort in developing a skill or a career on their

              • by PCM2 (4486) on Monday February 21, 2011 @11:59PM (#35275336) Homepage

                Your analogy is very bad. There is a difference between leaving your offspring the rights to a creative work they had absolutely nothing to do with and leaving them the money you made from it.

                Why? Your creative work is a business, just like any other. If you had lived, you would have been able to keep operating that business, making money of the works you did in the past (and any new ones you choose to create). Why should you be able to hand your hardware store down to your heirs, but not a media business? And by your own logic, which is worse -- handing your kids a pile of money, or handing them a thriving business to operate? Are lottery winners happy? No -- generally, they piss it away and end up in debt. On the other hand, if your heirs materially participate in the business of managing your creative works (as Christopher Tolkien did while his father was alive, and continues to do long after his death), then they don't "have absolutely nothing to do with" the creative work, do they? Comments like yours just sound like sour grapes to me.

                • by esme (17526)

                  Why? Because copyright is a bargain. We temporarily give up our right to copy an artist's work in exchange for that work eventually going into the public domain (and not just being squirreled away unread in an attic somewhere).

                  In the last generation, copyright holders have systematically broken this bargain, extending copyright terms to insane lengths, expanding copyright scope, stifling fair use, etc. Using the threat of legal harassment to deter new writers from writing about long-dead public figures i

            • by 19061969 (939279)

              So Tolkien's son was 14 when he died of a writing-related illness after being forced into writing major pieces of fantasy literature? And then all the wealth he earned was stolen by the state before it could be inherited?

              Poor analogy. A better one is, "So if your father spends a significant amount of his spare time lovingly crafting a fake world for his own enjoyment which unexpectedly turns out to be a big seller. Upon his death, his children (aged between 53 and 44 years of age) benefitted enormously from

          • by nospam007 (722110) *

            "In my opinion, wealth should be earned, not entitled. "
            Ditto here, my vote goes to a 100% estate tax, even if it means that Paris Hilton would have to flip my burgers.(ick)

        • by Culture20 (968837)

          In all likelihood nobody would have ever seen The Silmarillion were it not for him. How different would Middle-Earth fandom be then?

          Only a select few would refer to Mithrandir by all his twenty three names.

      • Please do be more specific about this one.

      • "If more of us valued food and cheer above hoarded gold, it would be a much merrier world."
        — J.R.R. Tolkien

  • by camperdave (969942) on Monday February 21, 2011 @09:14PM (#35274178) Journal
    No historical fiction? Would that include Irregular things like Web Comics [irregularwebcomic.net]?
  • by Hangtime (19526) on Monday February 21, 2011 @09:17PM (#35274192) Homepage

    Tolkein was/is a public figure, feels like there isn't much to stand on here especially if its fiction and portrayed as such. Seems like this fall well within the fair use realm.

    • And publicity for the work they are trying to stop. Fail squared. :)
    • by westlake (615356)

      Tolkein was/is a public figure

      I am not so sure about that.

      A public figure is someone who has actively sought, in a given matter of public interest, to influence the resolution of the matter. In addition to the obvious public figure---a government employee, a senator, a presidential candidate---someone may be a limited-purpose public figure. A limited-purpose public figure is one who (a) voluntarily participates in a discussion about a public controversy, and (b) has access to the media to get his or her own view across. One can also be an involuntary limited-purpose public figure --- for example, an air traffic controller on duty at time of fatal crash was held to be an involuntary, limited-purpose public figure, due to his role in a major public occurrence.

      Who Is A Public Figure [eff.org]

      I don't know how quite how you frame an academic and author like Tolkien as the center of any great "public" controversy or event.

      I think you do have a problem if you mimic the distinctive cover designs and typefaces of Tolkien's books. The cynic in me dislikes the notion of using fictionalized biography to shore up your literary criticism.

  • by mbone (558574) on Monday February 21, 2011 @09:17PM (#35274196)

    More evidence that the copyright term is much too long.

    • by theVarangian (1948970) on Monday February 21, 2011 @09:45PM (#35274388)

      The estate is claiming that this infringes on Tolkien's publicity rights, but if that's the case, would it make almost all 'historical fiction' illegal?

      More evidence that the copyright term is much too long.

      The Right of Publicity can be defined simply as the right of an individual to control the commercial use of his or her name, image, likeness or other unequivocal aspects of one's identity.

      Maybe I'm missing something really obvious but I was always under the impression that publicity and privacy rights are separate from copyright. This lawsuit is bloody ridiculous and I hope the Tolkien estate loses but as far as I can tell it has very little to do with copyright law.

      • by h4rr4r (612664)

        This individual is no more, he cannot protect this right anymore than he can rise from the grave and eat brains.

    • by icebike (68054) on Monday February 21, 2011 @09:46PM (#35274394)

      But this story suggests this is not a copyrights issue, but rather a "publicity rights" issue.

      the Tolkien estate, ... alleged that it had a property right to commercially exploit the name and likeness of J.R.R. Tolkien. The estate also alleged that the cover art and typefaces in "Mirkwood" were similar to Tolkien's work to a degree that it would provoke unfair competition.

      They are inventing a new right, apparently out of whole cloth, but certainly not based on copyright law.
      One can't copyright one's existence, and thereby prevent, say, a biography, a news report, or tabloid coverage.

      • They are inventing a new right, apparently out of whole cloth, but certainly not based on copyright law.

        As I understand it, it's not entirely whole cloth: it comes out of the intersection of privacy and trademark.

      • One can't copyright one's existence, and thereby prevent, say, a biography, a news report, or tabloid coverage.

        But what if you write an autobiography? Are you not then a character in your own book, making other biographies a derivative work?

    • This isn't a copyright issue. Even if there were no such thing as copyright, this lawsuit would still exist because it's based on a different law, so it is evidence of nothing about copyright.

      It's about Right of Publicity [wikipedia.org]. If you're not bored reading my comment yet, it says that no one can commercialize your persona without your permission. This is a good thing: if it didn't exist, Nike wouldn't have to pay Michael Jordan to use his name, and neither would anyone else. Now, it's probably being taken too f
  • Name change (Score:5, Interesting)

    by Spazmania (174582) on Monday February 21, 2011 @09:21PM (#35274234) Homepage

    Just change the character's name to R.J.R. Token (Ronald John Token), clearly explain on the cover the Token is a fictional character inspired by J.R.R. Tolkien and then tell the estate to get stuffed.

  • "The Estate Of" (Score:3, Insightful)

    by Anonymous Coward on Monday February 21, 2011 @09:22PM (#35274246)

    How come there isn't an Estate of George Washington? Is every dead person entitled to a perpetual corporate entity?

    • by Restil (31903)

      There's a big difference between "filed a suit" and "won a lawsuit for". Until someone follows through to the end and gets this issue more or less written into law, the chilling effect will continue. As far as I know, publicity rights end when you die. You can publish about the dead all you like, and it doesn't become an issue unless you're defaming someone who's currently alive.

      -Restil

  • my Tolkien account (Score:5, Insightful)

    by FuckingNickName (1362625) on Monday February 21, 2011 @09:29PM (#35274290) Journal

    Once upon a time there was this fairly cool guy called JRR Tolkien who wrote some popular books. Then he had some descendants who were leeching cunts. The lawyers on all sides lived happily ever after. The end.

    This is OK because it's not fiction, right?

    • by icebike (68054)

      Pay up. Fact or fiction isn't the issue.

      They are claiming a right to manage their own publicity. I have no idea where they got the idea such a right exists, but according to the summary and TFA, that is exactly what they care claiming.

      • by ScentCone (795499)

        They are claiming a right to manage their own publicity. I have no idea where they got the idea such a right exists

        The notion of "right to publicity" has ample precedent. It's used every day, and it's why you can't use a picture of Steve Jobs in your own advertisement or product without getting his permission.

        • by icebike (68054)

          But you can write a book or an article about Steve Jobs, and you can write w work of fiction that includes Steve Jobs as a central character.
          This is done every day of the week.

          • by ScentCone (795499)
            I didn't say you couldn't. I was replying to the notion that "right of publicity" was some new concept that Tolkien's estate had synthesized out of whole cloth. It's not. Whether or not it's a good fit in this case is a separate discussion.
        • by cHiphead (17854)

          Like hell I can't, ask TMZ not to post a pick of a sickly Steve Jobs with some hookers and we'll see how that stacks up.

          • by ScentCone (795499)
            You're (deliberately, I expect) failing to make the distinction between editorial and commercial use of someone's likeness. This stuff is very well established.
        • by DarkVader (121278)

          But you can use Marilyn Monroe all you want. Since she died in NY, she no longer has any publicity rights.

      • Re: (Score:2, Informative)

        by PCM2 (4486)

        They are claiming a right to manage their own publicity. I have no idea where they got the idea such a right exists, but according to the summary and TFA, that is exactly what they care claiming.

        You can't market a soft drink called Cock-Cola whether you claim it's a parody or not. Also, it's pretty common these days for celebrities to trademark their own names -- Sarah Palin did it the other day. This is all so they can manage their own publicity.

        • by h4rr4r (612664)

          Cock-Cola you probably could get away with, since it is another word. Trademarking your name does not protect you from parody or being in the new. For instance I can say Sarah Palin is a moron who should perhaps see if she can get her own daughter to keep her legs shut before suggesting that as a solution to teen pregnancy.

          • by PCM2 (4486)

            You could probably get away with making a picture of a can of Cock-Cola, but I guarantee you could not sell an actual can of soda with that name, especially if you modeled the trade dress after Coca-Cola. Ceci n'est pas une pipe, but whether you call it a parody or not, that can really is a can of soda, and that's what Coca-Cola's trademark protects. (And, actually, I'm sure they've filed trademarks protecting a variety of other uses.)

            In the other case, yes, you could say Sarah Palin is a moron. What you co

          • by Culture20 (968837)

            Cock-Cola you probably could get away with, since it is another word.

            You'e mad, Wongberger! That would never fly!

    • Well, I'd almost agree with you... BUT... The Tolkien estate sat on the rights to make a Lord of the Rings movie for decades. They were approached many times and turned it down many times. When they finally got the offer they accepted it really was the best telling of the story they could have gotten short of a huge 10 part series on HBO or something. You can argue weather or not you like the movies, but they turned down a lot of offers that really wouldn't have done the books justice but would have made th
      • by Darkness404 (1287218) on Monday February 21, 2011 @11:18PM (#35275010)
        Except for the fact that there should be no Tolkien estate owning the rights to it. The idea that someone's heirs can say what you can and can't do with a piece of fiction written over 55 years ago written by someone who died 38 years ago is ridiculous. Copyright needs to be much, much, much more limited. When you look at the history of literature, all of it has been shaped through remixing and reusing ideas and stories of those who wrote before.
    • by MightyMartian (840721) on Monday February 21, 2011 @11:37PM (#35275184) Journal

      I'm still not seeing how the descendants, in particular Christopher Tolkien are leaching. CJRT put about three decades effort into organizing and publishing the vast amount of unpublished material than JRRT had written between 1916-17 and his death in 1973 available. CJRT actually was an Oxford professor himself and then spent a good chunk of his own retirement on this organization effort. A good many Tolkien scholars are very grateful for CJRT's efforts.

      Tolkien's works were a lot more extensive than just The Hobbit and LOTR.

    • by syousef (465911)

      Once upon a time there was this fairly cool guy called JRR Tolkien who wrote some popular books. Then he had some descendants who were leeching cunts. The lawyers on all sides lived happily ever after. The end.

      This is OK because it's not fiction, right?

      Let me abbreviate that for you.

      leeching cunts! it's not fiction, right?

  • by PCM2 (4486) on Monday February 21, 2011 @09:31PM (#35274306) Homepage

    The Scribd document contains the text of Hilliard's court filing, but not what the Tolkien Estate said in its original cease-and-desist letter. It says it includes a copy of the Tolkien Estate's letter as Exhibit B, but there is no Exhibit B in the Scribd document. Until we can see the original language used in the cease-and-desist, it's hard to say whether there might be any valid complaint there. I get the gist of line 17 of this document, which amounts to "I can say whatever I want because of the First Amendment," but that's not strictly true, and it's usually a bad idea to go straight for the Constitution as your first line of defense. Case law could easily support the Tolkien Estate's position.

    I'm sure there will be countless posts about the evils of intellectual property law, but I, for one, see no reason why this complaint and counter-complaint should not be weighed in the courts.

    • by shutdown -p now (807394) on Monday February 21, 2011 @09:34PM (#35274322) Journal

      I wouldn't really be surprised about any such claims coming from Tolkien Estate specifically - anyone who is seriously involved in fandom around Tolkien's works knows how litigious they can be, and how insane [theregister.co.uk] their demands often sound.

      • Re: (Score:3, Interesting)

        by PCM2 (4486)

        Actually, your link talks about a lawsuit filed not by the Tolkien Estate, but by the companies that own the film rights to the books. That certainly seems like a stretch.

        But what the lawsuit in TFA is about is the Tolkien Estate's claim that it owns publicity rights to Tolkien's name. To what extent is that true? I don't know. I mean, imagine: Say your father died a few years ago, and someone who lived up the street from you when you were a kid writes a novel in which your father is a character, and your f

        • I mean, imagine: Say your father died a few years ago, and someone who lived up the street from you when you were a kid writes a novel in which your father is a character, and your father is portrayed as a pedophile and serial rapist. You argue that this is a complete fabrication, but the author shrugs and says, "What can I say, it's fiction. I'm exploring the ramifications for the neighborhood if your father had been a rapist. Obviously people shouldn't take this as a work of scholarship." Wouldn't you at least wish you had some recourse to stop publication of that book?

          Depending on how clear it is that the book in question is fiction, there may be grounds for a libel suit in such a situation (and in the case from TFA, if they are unhappy about how Tolkien is portrayed). And I don't just mean disclaimers, but if most readers of the book assume that it is non-fiction - i.e. if there is actual harm to reputation caused by it - then it should probably apply.

          Aside from that... I certainly wouldn't want to be in a situation you describe, and it would probably irk me - but I do

          • Re: (Score:2, Interesting)

            by PCM2 (4486)

            Personally, I don't see why it is unethical to capitalize on someone else's popularity, so long as the work in question has inherent creative merit

            OK, ummm, total hypothetical here. Let's say you have this thing you built -- call it a widget -- and someday someone sees it and says, "Wow, that's a really amazing little gadget. I have never seen anything like it!" And it turns out this person is a TV producer, and they put you on the evening news.

            All of a sudden you start getting calls about this widget you've built -- "Where can I get one?" And you reply that, gosh, you hadn't ever really thought of mass-producing them, but if enough people seem intere

            • But here's the kicker -- the guy building the fake widgets put your name and face on the box, saying "Here is the famous widget, as invented by shutdown -p now." Would that be ethical?

              No, because that would be a misrepresentation (as the widget is, as you describe, not actually "as invented by ..."). Furthermore, putting name and face on the box is likely to be interpreted by customers as an official endorsement by me, which can potentially be damaging to my reputation. From customers' perspective, this would also likely be fraud.

              Overall, I don't see how the situation you describe is even closely similar to this case - unless the author of this book uses Tolkien-related imagery or symbol

  • by Jailbrekr (73837) <jailbrekr@digitaladdiction.net> on Monday February 21, 2011 @09:33PM (#35274318) Homepage

    Eyeing the half dead orc, J R R Tolkien discreetly scanned the surrounding for those who might be watching. Once satisfied that the two were alone, he made quick work of his pants. Mounting the orcs lacerated leg, Tolkien muttered "Oh yes, my precious, your leg shall be mine. Oh yes". The orc said nothing and simply stared in quiet horror. His eyes said everything that could possibly be said.

  • by sribe (304414) on Monday February 21, 2011 @09:45PM (#35274382)

    Seriously, do they? I never knew that. I never knew that publicity rights could be inherited. Maybe I'm wrong, or maybe the estate is 100% full of it and thought they could pick on some who would just give up immediately.

    Seriously, according to the article this is not about copyright, which does persist after death and can be inherited. Publicity rights? Good grief...

    • by PCM2 (4486)

      So I can make movies with a digitally-simulated model of James Dean as my lead actor, and nobody has any say in the matter? Or forget movies: TV commercials, that's where the real cash is.

      • Ahem... [youtube.com]
      • by h4rr4r (612664)

        Why not?

        He is dead, he cannot be harmed by your actions.

        • Re: (Score:2, Insightful)

          by PCM2 (4486)

          He is dead, he cannot be harmed by your actions.

          No? What if it was commercials of a computer-simulated Martin Luther King, urging everyone to vote Republican?

          What if it was a porno featuring Marilyn Monroe doing a "2 boys 1 cup" with Bobby and JFK? Should none of their families and loved ones have any say in the matter?

          Are we ghouls, that we can exhume the bodies of the dead for whatever purpose we choose? Do historical figures have no right to their own legacy at all?

      • by C0R1D4N (970153)
        I suppose if you want to inspire mass boycotts of your product and strikes by SAG who'll refuse to work on shows sponsored by you.
  • Well, I hate to inflame on me the hate of all Slash.dot posters.. But ... Shouldn't all 'historical fiction' at least require the permission of the persons involved (or the people/institution representing that person) ? I mean, what makes you think that *you* have the right to include 'real' people into your fake fictional works ? Really ?
    • by timeOday (582209)

      I mean, what makes you think that *you* have the right to include 'real' people into your fake fictional works?

      What makes me think I have the write to arrange some letters from the alphabet in a certain way? The audacity!

      Surely the burden of proof is on those who want to restrict such rights.

      • by lbalbalba (526209)

        Surely the burden of proof is on those who want to restrict such rights.

        Hahahaha! No. If you dream up fictional stuff on someone/something, and pretend that it is 'factual', then the burden of proof of that is on you, pal.

        • by h4rr4r (612664)

          Not one is pretending it is factual. Besides I can say anything I want about anyone, they then must prove I should not be allowed to say it, via slander or other laws.

    • I mean, what makes you think that *you* have the right to include 'real' people into your fake fictional works ?

      Indeed. Mixing fact and fiction is quaintly known in civilized societies as lying. Making up a genre called "historical fiction" doesn't change the simple fact that Hilliard is being dishonest -- saying things about a real person that he knows are untrue. If his sincere intent was " literary criticism [hollywoodreporter.com]" as his lawyers now claim, then he would have written an essay, not a novel. They're entirely different categories of prose and I hope the court can appreciate that "fictionalizing" events of real people's

      • by lbalbalba (526209)

        I mean, what makes you think that *you* have the right to include 'real' people into your fake fictional works ?

        Indeed. Mixing fact and fiction is quaintly known in civilized societies as lying. Making up a genre called "historical fiction" doesn't change the simple fact that Hilliard is being dishonest -- saying things about a real person that he knows are untrue. If his sincere intent was "literary criticism [hollywoodreporter.com]" as his lawyers now claim, then he would have written an essay, not a novel. They're entirely different categories of prose and I hope the court can appreciate that "fictionalizing" events of real people's lives is not literary critique, it's literally lying. And if any of the made-up events are in any way insulting, it's slander.

        Very true... Mod parent up, please.... ?

      • by Homburg (213427) on Monday February 21, 2011 @11:41PM (#35275214) Homepage

        Mixing fact and fiction is quaintly known in civilized societies as lying.

        I'm not sure if you're joking; your argument would make all fiction mere "lying," because all fiction "mixes fact and fiction." Most fiction involves real places, and almost all involves a real species, i.e., human beings. A huge amount of fiction involves real people in one way or another, too, so readers will be familiar with the idea that claims made about real people in a work of fiction may not be true. It's only lying if you say things that are untrue with the intent that someone reading them believes them to be true, and that will not be true of anything which specifically calls itself "fiction."

    • by h4rr4r (612664)

      What makes you think you have the right to control what I put in my fictional works?

      Just then Lincoln shot big bird with his ray gun and all the children were covered in a shower of feathers and candy.

      Why should I not be allowed to write the above?

      • by lbalbalba (526209)

        Why should I not be allowed to write the above?

        Uhhmmm... Because you pretend that this fiction is fact ? Lying ? Slander ? ...

      • by Sulphur (1548251)

        What makes you think you have the right to control what I put in my fictional works?

        Just then Lincoln shot big bird with his ray gun and all the children were covered in a shower of feathers and candy.

        Why should I not be allowed to write the above?

        Because Big Bird is not a candy ass?

  • It would feel odd if my real life character had less legal protection than a fictional character I create.
    • by lbalbalba (526209)

      It would feel odd if my real life character had less legal protection than a fictional character I create.

      A 100 % percent agreed...

  • If patent- and copy rights would just end with the originator of the work - if s/he dies, all becomes public domain.

    It sure would drive innovation and what are heirs/patent-right owners actually contributing? They just rub their hands - how lucky I am to have this ancestor or made the investment.

    Dreaming on...
    • No, because that encourages killing people whose works you would like to co-opt.

      Short, reasonable, fixed durations are the answer - like, say 15 years automatically, then another 20 if you provide a DRM-free copy and $1 to the government.

      90% of content would be free in 15 years and, for the rest, an archive would ensure the works aren't lost forever.

      Meanwhile, I don't care if this means someone who's a brilliant author at age 23 loses all copyright protection at age 58. That's what retirement savi
  • worked for Mark Twain in Riverworld, even if is science fiction instead of historic one. And, btw, Tolkien should had been around there too.
  • by Anonymous Coward on Monday February 21, 2011 @10:41PM (#35274776)

      In addition to trademark and unfair competition issues the complaint includes: "(t)he Estate claims that it holds the rights of publicity to exclude others from the use of the name and personality of J.R.R. Tolkien in a fictional novel, and those rights include the right to preclude Hillard from authoring and Cruel Rune from publishing Mirkwood."

    California has an unusually strong statute for "deceased personalities": California Civil Code Section 990 Deceased Personality's Name, Voice, Signature, Photograph, or Likeness in Advertising or Soliciting [findlaw.com]

    Although it prohibits some commercial uses of a "deceased personality" there's an exception for "(a) play, book, magazine, newspaper, musical composition, film, radio or television program, other than an advertisement or commercial announcement ... " [emphasis added] From the complaint it's not clear what their argument is then re. "the rights of publicity" referred to in the complaint ...

    IANAL

  • Item 1: JRR Tolkien's children are claiming a story that includes his character violates his "publicity rights".
    Item 2: A dead person typically has no ability to control much of anything.

    Conclusion: JRR Tolkien now walks the earth as a ZOMBIE! AAAHHHHH!!

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