Tolkien Estate Says No Historical Fiction For JRR 337
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?"
No historical fiction? (Score:4, Interesting)
Name change (Score:5, Interesting)
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.
Re:70 years + is too damn much (Score:4, Interesting)
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.
Re:70 years + is too damn much (Score:4, Interesting)
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.
Re:I'd like to see the original complaint (Score:3, Interesting)
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 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? Do you have recourse? Again, I don't know. Is it more ambiguous for Tolkien because he's a public figure -- or does that mean the case is more clear-cut, and that his estate has the right to control how he's portrayed in media? Would Hilliard's book really have been published if the Lord of the Rings wasn't such a hot property these days? And if not, then isn't Hilliard capitalizing on Tolkien's legacy financially? I think there are issues worth arguing here.
Re:my Tolkien account (Score:5, Interesting)
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.
Re:I'd like to see the original complaint (Score:2, Interesting)
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 interested, maybe you will.
But one of the people who calls is an opportunist! "AHA!" he says. "If he's not going to market them, then I will." He plays the video from the TV news over and over, in slow motion, and he builds the best approximation he can of your widget. Yet because he didn't have an actual prototype to look at ... his widget sucks. It's pretty much junk.
OK, so far so good. There's nothing really wrong with that. That was your missed market opportunity -- tough luck, sucker. Maybe you can still get a widget to market that works right. 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?
I'm not saying that analogy exactly matches what's going on in the Tolkien case, but I suspect the Tolkien Estate is looking at it something like that: The Tolkien Estate reserves the sole right to license commerical products that make use of Tolkien's name, image, and various items of "trade dress," and based on their cursory examination of Mr. Hilliard's product (a book), they feel the book's publication would be a breach of their rights.
Re:do-not-meddle-in-the-affairs-of-greedy-offsprin (Score:2, Interesting)
Net effect ... lots of really high payout life insurance policies.
Downside... using the bulk of your assets to purchase such a policy leaves you with little for non-lethal sudden expenses.
There should be zero estate taxes. Its not a fucking gift. Its a goddamn sad event most of the time, and every fucking penny has already been taxed when it was income for the deceased.
Maybe we should apply your opinion that wealth should be earned not entitled to the government. They'd have to produce good government before getting funds, instead of the current "we're the government.. we're entitled to your money, even though we spend it fucking wastefully, stupidly, and on projects that have no hope of serving the public interest" mode.