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

do-not-meddle-in-the-affairs-of-greedy-offspring

[intellitech]

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

Sorry Public Figure

[Hangtime]

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.

70 years + is too damn much

[mbone]

More evidence that the copyright term is much too long.

Re:70 years + is too damn much

[bieber]

It's both. This should be legal under fair use and the copyrights should have expired a long, long, long time ago.

Re:70 years + is too damn much

[theVarangian]

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.

Name change

[Spazmania]

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.

my Tolkien account

[FuckingNickName]

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?

Re:my Tolkien account

[Darkness404]

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.

Re:my Tolkien account

[MightyMartian]

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.

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.

Oh no, not my erotic fan fiction!

[Jailbrekr]

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.

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:'historical fiction' ?

[Homburg]

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."