Tolkien Estate Says No Historical Fiction For JRR

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?"

Comments

Re:do-not-meddle-in-the-affairs-of-greedy-offsprin

[christurkel]

Ah you must mean Christopher Tolkien. He's been sucking off the teet of his father for decades.

I'd like to see the original complaint

[PCM2]

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.

Re:I'd like to see the original complaint

[shutdown -p now]

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 their demands often sound.

Re:I'd like to see the original complaint

[PCM2]

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 symbols prominently on cover, while advertising the book etc.

Check TFA -- that's what they're claiming.

Re:my Tolkien account

[PCM2]

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.

California Civil Code: Deceased Personalities

[Anonymous Coward]

  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

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

Re:Dead people have publicity rights???

[PCM2]

You make my point perfectly. Pause the video right at the very beginning. You'll see text at the bottom stating not only that "Gene Kelly" is a trademark, but that the images are copyright the Gene Kelly Image Trust. If Gene Kelly's estate wanted to put the kibosh on the whole project, it could have.