Mon
Feb 28 2011 2:44pm

Tolkien Estate Set on Destroying a Handful of Books

Mirkwood by Steve HillardIn an interesting legal twist, it seems that the estate of J.R.R. Tolkien is attempting to sue author Steve Hillard for using Tolkien’s name—not for assuming the author’s name as his own, but for using Tolkien as a character. That’s right, Mirkwood: A Novel About JRR Tolkien, might be pulled from Amazon.com and pulped for portraying the late fantasy fiction king between its pages.

The chances of this case coming to anything are slim indeed. To begin with, Hillard’s book is self-published, having sold only 900 copies so far. He is hardly making a dent in the Tolkien family coffers with numbers like that. In addition, if this case actually came out in favor of Tolkien’s estate, where would it end? Is the Jackson family going to sue Quantum Leap for insinuating that Sam taught little Michael how to moonwalk? How about Chuck Berry? We know that Marty McFly didn’t actually give him the idea for “Johnny B. Goode” or his new rock’n’roll sound, so he’s clearly got a case there.

And we should definitely stop making films and books about the Founding Fathers. I’m guessing the musical 1776 will be the first one on the stands. How dare they confuse people into thinking that the Declaration of Independence was signed after the whole Continental Congress had finished bursting into song!

That said, it’s unlikely that the Tolkien estate has a leg to stand on; this isn’t an obligatory defense of trademark, as Tolkien’s name is not effectively a brand. To my knowledge, the estate only has copyright on his written material, making this whole fight out to be petty and mean-spirited. Let’s hope they back out of this now and save themselves a bit of embarrassment. We can all calm down and go back to our scheduled programming.


Emily Asher-Perrin writes for a few websites, and tweets and all the rest of it.

27 comments
Melissa Shumake
1. cherie_2137
and by them making a stink about it, more people are going to hear about this book and want to buy it... go figure.
Dave Miller
2. Borogove
My understanding is that the estate actually has "Tolkien" trademarked. However, I'm also pretty sure that a use in this context is permissible under trademark law.
Federico Bianco
3. talen
I bought the Kindle version of the book... and, frankly, it's nothing to call home about. It's *really* in need of some editing, it's been a pain just to come at the end ... this move from the Tolkien estate will probably be the best thing to happen to the author, publicity-wise :)
Matthew B
4. MatthewB
Near as i can tell, the Tolkien estate is just a few old-fashioned talentless money-grubbers trying to keep their cash cow alive by any means necessary. As far as i'm concerned, their overzealous profiteering disguised as "protection of his legacy" has done more to tarnish his legacy than the worst Mary-Sue/Legolas/Gandalf slash fanfic ever written.
James Goetsch
5. Jedikalos
Having become corrupted by the ring of power (or all the money they are making from their ancestors creativity) the great artist's descendents fall under the sway of greed, and retreat into the dark caverns to mutter and mumble uncesaingly over their loot, keeping unceasing watchful gollum-like eyes peeled for any interlopers.
HarryMonmouth
6. HarryMonmouth
If I was the judge I would need a very good reason not to slap the Tolkien estate with punitive damages to discourage the bringing of punitive claims at the expense of the court.
HarryMonmouth
7. RobinM
Shh! don't tell the Tolkien estate but there are other books out there with J.R.R. as a character. One series I'm in the middle of now is great and I can think of at least one other story.
Aeria Lynn
8. aeria_lynn
I have to wonder if the Tolkien estate is hoping that the author has no money and no lawyers and scares easily.
HarryMonmouth
9. prometheus
As far as I am concerned, any and all intellectual property rights ought to be terminated on the death of the creator. Tolkien's work should have been public domain for decades now. I have nothing but contempt for their lawsuit - may it fail in ignominy.
Ashe Armstrong
10. AsheSaoirse
I could maybe understand this if he was writing a biography but this is a work of fiction. This Tolkien is like Elvis in Bubba Ho-Tep.
HarryMonmouth
12. a1ay
I could maybe understand this if he was writing a biography but this is a work of fiction.

Not even then, Ashe. There's no possible legal justification for preventing someone from writing a biography of Tolkien, as long as it doesn't libel anyone else (Tolkien himself, being dead, can't be libelled) or reprint copyrighted material, and even that couldn't be used to justify prior restraint. You can trademark your name all you want, but it won't stop people from writing your biography.
René Walling
13. cybernetic_nomad
And it's not limited to just that book.

See: http://languagelog.ldc.upenn.edu/nll/?p=2999

and: http://madelineashby.com/?p=850
HarryMonmouth
14. Dr. Thanatos
While I agree that the suit is silly, I think it perhaps presumptuous and maybe a little mean-spirited to be ascribing motivations to the Tolkein family who are undoubtably acting on advice of attorneys rather than coming up with this on their own. And to insult them on a personal level, including the folks who have worked hard for decades to compile material for those of us who want to know more about the Professor's creative process, is just mean and petty and not what I have come to expect from members of this discussion group.
Ashe Armstrong
15. AsheSaoirse
@a1ay: Yeah, which is why I said I could MAYBE understand it then, just cause it's directly dealing with the person and if it wasn't a lawyer's idea, that stuff can get hazy. This whole thing is just bizarre.
Jeff LaSala
16. JLaSala
Don't forget that Tolkien was used as a character long, long ago, in C.S. Lewis's Space Trilogy, although he was renamed (Ransom) used quite fictionally therein. Though I suppose "patterned after" is more correct than "duplicated." In any case, one can always get away with literary homage to a close friend.
Matthew B
17. MatthewB
@14 Dr. Thanatos: Advice from attorneys is just that - advice. They are the ones who make the decisions and they are the ones who must be held accountable for those dcecisions.

As for the "insults" (i would characterize them as observations) themselves, i'd tell them what my dad told me. If you don't like being called an asshole, don't act like an asshole or learn to not mind it.
HarryMonmouth
18. Dr. Thanatos
@17 mrburack,

And I'd tell them what my daddy told me. If you think someone is an asshole, fine. If you go out in public and talk about people that way, you're really talking about yourself...

The language and attitude here is, as I said above, not the standard I have come to expect on Tor.com.
René Walling
19. cybernetic_nomad
@Dr. Thanatos: Just goes to show we all have to live with some disappointments. I would have expected the Tolkien Estate to have more class, but since they don't have any, calling them out about it in public is the best thing to do since they seem to want to muzzle people's right to free speech. The best way to fight that is to exercise free speech: Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien (I must be good for a dozen counts of infringement now, let them try to sue me )
Emily Asher-Perrin
21. EmilyAP
Hey all,

I think the most important thing to take from all of this is that the lawsuit will likely not come to anything. Everyone is bound to have their own opinions on the Tolkien estate in this matter, and all of those opinions are valid. Feel free to express yours, but please not at the price of taking down someone else's.
Jonathan Crowe
22. mcwetboy
You're all missing the point. This isn't about trademark or copyright, it's about personality rights -- the right to control the commercial use of your name, likeness, and so forth. In a nutshell: Thou shalt not make money off my work without giving me my cut.

My guess (and it's only that) is that Tolkien appearing as a character isn't really the issue; it's naming the novel after one of Tolkien's locations and subtitling it on the cover "a novel about J. R. R. Tolkien" -- that I think is being seen as trying to use Tolkien's name and work to sell copies. It may be the marketing, not the work, that is the problem, in other words.

But what is the difference between this and, say, unlicensed merchandise? Not a rhetorical question: obviously there's a point where fair dealing applies, it's just a matter of where the line is drawn. I know that the Tolkien Estate frowns on unlicensed third-party maps of Middle-earth, for example, but what happens if I paint a picture of Menegroth and try to sell it at an art show?
René Walling
23. cybernetic_nomad
@mcwetboy: So how do you explain the lawyergram stopping the sales of a button that reads. "While you were reading Tolkien, I was watching Evangelion" (see the links I posted above for more info). Which is a statement about (among other things) the place Tolkien has in our cultural environment, does not impinge on sales of Tolkien books (or movies derived from them) and in fact recognized their importance.

As far as having "A novel about J.R.R. Tolkien" on the cover of a book, I think that not asking the person (or their estate) for permission to do something like that shows a remarkable lack of class on the part of the author (now I don't know if they did or not, but I think it's unlikely considering the way things developped). Then again, how many people have asked descendants of well known historical figures for permission to use their ancestors in historical novels? By now, I think it's safe to say Tolkien is a historical figure.

IMO, the approach used by the Tolkien estate pretty much garantees that they will be cast as the bad guys here.

And FWIW, tons of people have painted pictures of Tolkien inspired art and have sold it at convention Art Shows over the years, I don't believe it's hurt sales of the book at all. Quite the opposite I'm sure since to fully appreciate some of that art, you probably have to be a confirmed fan of the books.

These kind of things are a reflection on how ubiquitous LotR is. If they really wanted to prevent unauthorized use of the name, the estate would stop sales of the books and make sure they become forgotten, in time, no one but a few English Lit teachers in obscure Colleges will use the name Tolkien and then, the mark would finally be safe!
Jonathan Crowe
24. mcwetboy
@cybernetic_nomad: I would say that the Tolkien estate had nothing to do with the button issue, as Boing Boing has since reported.
René Walling
25. cybernetic_nomad
Well, what can I say, you saw that post before me.

Funny how Zazzle claimed it was the estate asking them to do this. Which is a symptom of the real problem. The estate's attitude is the cause of the buttons going down (if you can't see why, there's no point in explaining it).
Kent Aron Vabø
26. sotgnomen
Well, the estate does have a past. When you think of all the money Tolkien missed out on from the unlicenced selling of his books during his lifetime, and the legal trouble he had getting it to stop, the fact that the estate is quick to pounce is not really to be wondered at.
Erick G
27. Erick G
You have to wonder though, since his name is on all his books, and those books are under copyright, does that mean his name is under copyright too? I'm pretty sure that's not how it works, but just some food for thought, more of "sound of one hand clapping" variety. It would suck if the estate reads this and makes a case out of what I said though; I would feel responsible for the case taking off in a rediculous course. But I am glad that Tolkein has got the fame he deserved when he was alive, even if we are a few years removed from the movies that sparked a new flame for his work. Hopefully it hasn't died out and the next generation can find the epic-ness that is Tolkein and his work.
Matthew B
28. MatthewB
You can't copyright names, or even individual words or phrases. You can trademark them within certain narrowly-defined spheres of commerce, but not generally. You can't copyright any factual information - only specific expressions of that information.

Our culture is really at a tipping point on issues of intellectual property - copyright, trademark, publicity rights, etc. It all seems lawyerly and academic, but in the coming years it's going to have a bigger and bigger impact on our daily lives. Everyone should take a little time to educate themselves about these topics. I recommend taking a look at the site techdirt.com. I'm not going to call it unbiased, but the people that run it and frequent it are very well-informed.
HarryMonmouth
29. Patricia M.
The Tolkien Estate needs to realize that the fans of the original works of J.R.R. Tolkien are where their money is coming from. Naturally, if the book written by that author contains things they consider defamatory they have a right to be upset. They might have more of a claim to the name "Mirkwood" than they do to the author's name as I am sure there are many other people on Earth with the last name Tolkien besides them. Unfortunately, they did have to sue the studios over getting money that should have been theirs to begin with over the LotR movie trilogy. There are articles online about what happened in that situation. However, distancing themselves from the fans and from the people who love Tolkien's work in the long run in my opinion gives the wrong appearance. It is certainly true they own the rights to any and all works of writing that Tolkien created in his lifetime and certainly should be sure his name and works are not misused. However, every fan who has read and loved these books invested a part of themselves into this unique world and with each new reader the story becomes something bigger than probably anyone in his lifetime might have imagined. A website such as J.K. Rowling and Sony have created for her Harry Potter stories (Pottermore) would be a fantastic way for the estate to continue to control the content and reach the fans and continue the legacy of this moving epic body of work Tolkien created.

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