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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?"
That's really what it comes down to. The lawyers are just doing the bidding of Tolkien's offspring.
vos nescitis quicquam, nec cogitatis quia expedit nobis ut unus moriatur homo pro populo et non tota gens pereat.
Pirates of the Silicone Valley
Isn't that a porn movie?
Assuming: Pirates of Silicon Valley. And the answer is no. Gates loves that movie, it makes him look like a business genius. Jobs is the one who comes off as a fucktard.
No historical fiction? Would that include Irregular things like Web Comics?
When our name is on the back of your car, we're behind you all the way!
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.
More evidence that the copyright term is much too long.
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.
Moderating "-1, Disagree" is simple censorship. Have the guts to post your opinion.
How come there isn't an Estate of George Washington? Is every dead person entitled to a perpetual corporate entity?
Apparently you misread...
That's "TOLKIEN" not "TOKING"... one involves the manifest results of the epic imbibing of hallucinogenic substances and the other pot. I hope that clears things up.
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?
Ah you must mean Christopher Tolkien. He's been sucking off the teet of his father for decades.
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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.
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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.
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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...
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?
Breakfast served all day!
"Jobs is the one who comes off as a fucktard."
So it's historically accurate?
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.
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
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" 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.
"I can't imagine how things could get any worse!" (some guy) "That could just be failure of imaginatioÂn on your p
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 it how you wish -- including making your family comfortable? 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").
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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.
--
$tar -xvf
Only a select few would refer to Mithrandir by all his twenty three names.
And this is different from current reality how?
#DeleteChrome
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."
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 father's tab they still have a much greater likelihood of having a better life than 90 percent of the hardest working amongst the lower class. Frankly, they deserve nothing unless they used the resources handed to them efficiently, and that would mean applying themselves in something worth a shit. 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. Leaving your offspring intellectual property is just a step away from leaving them titles such as "Baron" or "King", etc.
That brings me to an interesting point, / . is just "the ramblings of socially-inept, technology-literate news-mongers".
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.
Breakfast served all day!
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 continued sales of his work across the world along with a percentage of some major movies and associated merchandising which made then *very* rich indeed."
Quoth: "What is the incentive to earn wealth if you're not entitled to use it how you wish -- including making your family comfortable?"
To spend it yourself? Besides, money was *never* the motivation for Tolkien. He worked on it for decades before making a penny. It was a labour of love.
bang goes my karma... again...
Geeze Guys, I think you're missing the main point here - the legal action isn't over publishing rights to Tolkien's works, it's to use his likeness in a novel. It's akin to the estate of George Washington taking legal action against any author who has ever written a novel featuring their ancestor. Making money off the published works of a relative is one thing.. holding the world at ransom over using his name or likeness? That's bullshit. If that were the case, no new work of fiction (or non fiction) would ever be able to reference real people(or *their likeness*) without paying royalties. That's screwed.
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.
OK, but suppose your dad isn't a writer, he's a carpenter. And suppose he builds himself a fabulous house, with his own hands. Every nail he hammers himself. This is an awesome house. And then he dies. By your logic, should your mom, you, and the rest of his offspring be allowed to live in a house that they had nothing to do with? Not only that, but your dad didn't even wholly invent the work himself -- the house sits on land, which was here long before your dad ever was. It gets power, water, and sewer from the city services -- so the house is kind of public property, really. It was OK for your dad to live in it for a while why he was alive, but when there are homeless people on the streets, why shouldn't you have to work to put a roof over your own head, the way your dad did?
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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.
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.
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 savings are for. Talk to your financial planner and start saving.
It doesn't hurt to be nice.
It's a shame the way the estate treats his works as a revenue stream rather than an opus to be built upon.
Wait... so, say, Frank Herbert's Dune series as "an opus to be built upon"... this is a good thing?
Leave Tolkien's works well enough alone, I say. Christopher Tolkien's life's work has mostly been about cataloging, organizing, reconstructing, and re-presenting his father's original papers and fragments, and providing his own insights as one of the few people who were close enough to the source material to really have anything to add. If he had decided instead to pump out two or three trilogies filling in the years between The Hobbit and The Lord of the Rings, I wouldn't defend him at all.
You say Tolkien's estate treats his works "as a revenue stream." The other way to look at it would be that Tolkien's estate vigorously defends his original works and prevents derivative works from appearing precisely because Tolkien's work is something to be preserved and cherished, not mercilessly capitalized upon. (Christopher Tolkien himself was vocal about his skepticism that movies of The Lord of the Rings could truly preserve the intent of his father's work.)
Year after year, countless people are pounding on the doors of the Tolkien estate to make products based on JRRT's work. Should we fault the estate for only authorizing the best of them, and litigating against the rest? For an example of what happens when "derivative works" run amok, look no further than the Star Trek franchise.
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That analogy is absurd. With copyright, we're talking about the design of the book being protected, not the physical object.
A better analogy would be that you (and the rest of his offspring) should no longer be allowed to charge other people for the right to build houses based on the plans that he drew up. Those designs were created by standing on the shoulders of all those who designed houses before it. Thus, they should be protected for a very limited period of time, and in no case more than twenty years after the creator's death (and only then if the creator did so on death's door).
No one is arguing that you should not be able to have the physical fruits of your parents' labor, merely that you should not be allowed to continue to profit almost indefinitely off of their ideas.
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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 is just another in a long chain of abuse of wealth, power and a broken copyright regime.
-Esme
And I don't think anyone has a problem with Christopher Tolkien having a copyright on his dad's stuff Christopher released, especially considering he had to do a hell of a lot of editing and whatnot.
The clock on unreleased works doesn't actually start ticking until released, anyway. Of course Christopher is entitled to that copyright, even if he did nothing. Copyright is incentive to publish works, he published a work that wasn't published, we aren't here to run around judging how much work it took, he gets a copyright.
The problem is twofold:
a) With copyright's irrational 'X years after death', this will result in a lot of stupidity. If Chris lives another 30 years, the copyright for LoTR will expire 70 years before the copyright on the Silmarillion, published only 20 years later, does.
Copyright needs to be for a set amount of time, period, and have nothing to do with how long anyone lives. That idea is just crazy. If we want to 'help their children', well, first off, 'children' do not need support for 75 years, and secondly, that's accomplished simply by having copyright be inheritable. I'd even be fine without taxing it. (Which we don't.)
And can I point out the inherent insanity of 'helping' orphaned dependents by having the clock start ticking on copyright's expiration? Even if the clock takes near-forever to run out, that really doesn't make sense in any logical manner.
b) Copyright is way too long to start with. Lord of the Rings should be public domain now. Hell, the Beatles should be. The Silmarillion should be bumping up against expiration if not already expired. 40 years is more than long enough to incentive people to make stuff.
If corporations are people, aren't stockholders guilty of slavery?
You are talking about right of attribution, not copyright. That's actually a seperate thing from copyright (But included as part of copyright law)...you can lose the copyright on something but have the right to claim authorship. (In fact, you also have the right to demand that your name is removed from something...I keep waiting to see William Shakespeare's heirs running around demanding his name get removed from bad performances of his plays.)
If you want to demand that living artists remain credited, even after their copyright is expired, no one has a problem with that at all. That's a fine law.
And no one's going to take your music away. You'll always be able to play it, no one can stop that.
However, at a certain point, you also don't get to stop other people from playing it.
Or, to put it another way, as an incentive for making it, society gives you the sole right to perform it (or allow others to do so) for a fixed amount of time. And that's it. Somehow, thanks to Disney, this 'fixed amount of time' has absurdly been extended to what could be 150 years, depending on how long someone lives.
Also, I'm pretty certain that most people who want to reduce copyright do not want it to 10 years. Usually people talk about 28 years, which is just long enough for something to enter the collective consciousness and people to grow up with it and start basing stuff of it.
I, personally, would like to see 14 years 'by default' without registration, and then, after the 14 years, people have to pay a $100 filing fee or whatever and actually register it, and get another 14 years. Which would result in the vast majority of 'copyrighted things', which is stuff people made and don't even realize is copyrighted or that they own falling out of copyright at that point.
Actually, I'd like to give everyone two years free, and then have a $5 fee or something for the first 14, but for some reason everyone hates that, despite the fact that 'automatic free copyright' is demonstrably bad for the public domain. No one means to copyright, for example, their posts on slashdot. I understand that mistakes caused by not adding a copyright notice resulted in stuff being public domained that people didn't want, so we'll give people two years or something to catch that.
But people really, at some point, needed to be forced to make some effort to actually claim some sort of copyright. At the very least so the copyright doesn't enter some sort of limbo because the company went bankrupt or someone died and the heirs don't know about it, as happened to a large amount of computer games from the 80s and 90s, and 1950 and 1960 movies sitting in vaults decomposing.
And maybe, after the 28 or 30 years, have another 14 years possible, with a fee of $10000, which can be used to help promising artists.
If corporations are people, aren't stockholders guilty of slavery?