Tolkien Estate In Legal Spat With Author Of Historical Fiction; Will Publicity Rights Kill Off Historical Fiction?

from the overprotective dept

Mon, Feb 21st 2011 9:48am — Mike Masnick

And here we go with another really dumb publicity rights case, that may result in yet another book burning in the US. This one involves the notoriously overprotective estate of JRR Tolkien, the famed Lord of the Rings author. An author by the name of Stephen Hilliard has written a bit of historical fiction, that includes a bunch of historical characters and a fictionalized version of Tolkien. The book is supposed to be a historical novel and a form of literary criticism of Tolkien -- though I would imagine it's partly called that in order to aid with any potential "fair use" claims.

The Tolkien estate, of course, objects to the entire concept of the book, and sent a cease-and-desist letter to Hilliard, claiming that the book violated JRR Tolkien's publicity rights and "alleged that the cover art and typefaces in "Mirkwood" were similar to Tolkien's work to a degree that it would provoke unfair competition." That may be one of the more ridiculous assertions we've seen in a long time. "Unfair competition" to whom or what? Is anyone going to buy this novel and then say "well, that satisfies my need for Tolkien's work?" It seems like a pretty extreme argument, putting in the cease-and-desist just to pad out the threats part.

Hilliard decided to act first and filed for a declaratory judgment (full filing below), to preempt any lawsuit from the Tolkien estate. Hilliard claims that the threats from the Tolkien estate are against the First Amendment, and any copyright issues are protected fair use. It's worth pointing out, by the way, that the state of Texas, where Hilliard lives and where the lawsuit was filed, does have a publicity rights law, and it's one of a few states that allows those publicity rights to continue after death. That said, I'm not sure Texas' law would apply to Tolkien, seeing as Tolkien lived in the UK for most of his life (he was born in South Africa, apparently).

Either way, this seems like yet another ridiculous attempt by an author's estate to ban a book in the US. This follows on the (eventually failed, after initial) attempt to ban The Wind Done Gone -- an alternative take on Gone with the Wind -- and the (successful) attempt to ban Coming Through the Rye -- an unauthorized sequel to Catcher in the Rye. I'm still immensely troubled by the banning of the latter book, as it seems to go against basic First Amendment principles on almost every account. So, this case should certainly be worth watching as well. It seems like Hilliard has an even stronger case than with the Coming through the Rye book, since there doesn't seem to be any assertion of Hilliard using any of Tolkien's copyrighted characters -- which was what the judge got hung up on in the earlier case.

But a bigger point is that this is, once again, highlighting one of the serious problems with publicity rights -- especially when it comes to publicity rights on deceased authors. Historical fiction is a very popular genre, but a ruling against this book could suggest that historical fiction is not allowed without approval from the estates of every real person mentioned in the book! That kind of result would be patently ridiculous. Hopefully, the court will quickly strike down the Tolkien estate's attempt to ban a book in the US.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: historical fiction, jrr tolkien, mirkwood, publicity rights, stephen hilliard

33 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 21 Feb 2011 @ 10:00am

Historical fiction is a very grey area, because it can put the reputation of the actual person at risk. Effectively, the fiction could be more or better received than reality, and kill the existing reputation of the person in question.

I find many of the "true story of" movies and TV shows that are only "based on real life happenings" create the potential for great harm to the person in question.

If you want to do the history of Tolkien, do it honestly as straight history facts. If you want to write a critical piece about the writer, do it that way. I think it is pretty dishonest to hide behind a "historical drama" tag because what you really want to do is re-write the author's history, probably to make him look bad. It is like trying to get a license to lie.
[ link to this | view in chronology ]
- Pixelation, 21 Feb 2011 @ 10:07am
  
  Re:
  "Historical fiction is a very grey area, because it can put the reputation of the actual person at risk. Effectively, the fiction could be more or better received than reality, and kill the existing reputation of the person in question."
  
  It doesn't have to be historical fiction for this to happen. Look at the tabloids every day and you'll see it. Peoples reputations should rarely be placed above others right to free speech.
  [ link to this | view in chronology ]
  - Anonymous Coward, 21 Feb 2011 @ 10:15am
    
    Re: Re:
    ...and the tabloids often end up in court, defending the undefendable, and paying the price for it.
    [ link to this | view in chronology ]
    - Pixelation, 21 Feb 2011 @ 10:31am
      
      Re: Re: Re:
      That's more the exception than the rule.
      
      Somehow I doubt that the fictionalized version will hurt Tolkien's sales. Maybe it will increase them.
      [ link to this | view in chronology ]
      - Anonymous Coward, 21 Feb 2011 @ 11:48am
        
        Re: Re: Re: Re:
        It isn't about sales. It's about reputation, which remarkably is worth more than money, even to a dead person.
        [ link to this | view in chronology ]
        
        Mike Masnick (profile), 21 Feb 2011 @ 11:53am
        
        Re: Re: Re: Re: Re:
        It's about reputation
        
        You have no control over your own reputation. Not sure why you would pretend otherwise.
        
        Separately, a *fictional* books should not impact your reputation, as it's *fiction*.
        [ link to this | view in chronology ]
        
        Paul (profile), 21 Feb 2011 @ 7:01pm
        
        Re: Re: Re: Re: Re:
        How exactly can anything in this world be worth anything to a dead person?
        [ link to this | view in chronology ]
- MrWilson, 21 Feb 2011 @ 10:19am
  
  Re:
  You can't blame a work for what ignorant people choose to believe. It's called historical fiction for a reason.
  
  But if you're going to argue that all depictions of historical persons should be straight history facts, you can't write about anybody because all history will be debated by someone.
  
  The loss belongs to whoever chooses to believe a fictional account, not the dead person or their reputation.
  
  Reality is a consensus fiction. Nobody truly perceives it as it is or agrees with everyone else. Biographers get their facts wrong. Autobiographers embellish or omit to save face. Witnesses to crimes and accidents don't remember accurately exactly what happened. And people will even debate what video footage of an event "clearly" shows.
  [ link to this | view in chronology ]
  - Kamrom, 27 Feb 2011 @ 3:09pm
    
    Re: Historial Fiction
    So, what, now Sandow's estate, Samuel Clemmens estate and Oscar Wilde's estate can all sue cartoon network because it depected them as a superscience groupo fighting to protect a super machine from Tesla and the Avon Ladies from within a airship?
    [ link to this | view in chronology ]
- Anonymous Coward, 21 Feb 2011 @ 10:22am
  
  Re:
  "This is a work of fiction. Names, characters, places, and incidents are products of the author's imagination or are used fictiously and are not to be construed as real. Any resemblance to actual events, locales, organizations, or persons, living or dead, is entirely coincidental."
  
  Doesn't that pretty much cover it?
  [ link to this | view in chronology ]
- Richard (profile), 21 Feb 2011 @ 10:25am
  
  Re:
  Historical fiction is a very grey area, because it can put the reputation of the actual person at risk. .....I think it is pretty dishonest to hide behind a "historical drama" tag because what you really want to do is re-write the author's history, probably to make him look bad. It is like trying to get a license to lie.
  
  Bye bye Shakespeare then.
  
  Many of his plays are historical fiction - and Richard III certainly did damage the historical reputation of its subject by portraying him as a hunchback (with no historical justification).
  [ link to this | view in chronology ]
  - Anonymous Coward, 21 Feb 2011 @ 10:47am
    
    Re: Re:
    But Shakespeare is long dead and so are his historical subjects. It's unfair to the more recently deceased. Someone should pass a law on what can and can not be written about dead people. Perhaps some politicians in the United States? I'm sure they won't run into any problems.
    [ link to this | view in chronology ]
    - Richard (profile), 21 Feb 2011 @ 10:57am
      
      Re: Re: Re:
      At the time the plays were written the historical characters were not that long dead - and were extremely relevant to current political events. A descendant of Richard's usurper was on the throne. Shakespeare himself was of course still alive at the time - (it is rather necessary for the writing process!)
      [ link to this | view in chronology ]
      - Anonymous Coward, 21 Feb 2011 @ 11:54am
        
        Re: Re: Re: Re:
        Tupak released music after he died. How do you know that Shakespeare didn't continue writing plays after he died?
        [ link to this | view in chronology ]
        
        MrWilson, 21 Feb 2011 @ 12:58pm
        
        Re: Re: Re: Re: Re:
        Shakespeare clearly didn't continue to write after he died because he didn't have an incentive to write more since there weren't strong enough copyright laws at the time!
        [ link to this | view in chronology ]
        
        Paul (profile), 21 Feb 2011 @ 7:07pm
        
        Re: Re: Re: Re: Re: Re:
        I don't know about Shakespeare, but if you listen closely at Bach's grave you can still hear the scratching....
        
        Apparently though long dead, he is still decomposing...
        
        Wait, does this mean that all jokes that include historical figures are potentially against the law? Should I be worried about Bach's great great great great great great great nephew's wrath?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 21 Feb 2011 @ 7:19pm
        
        Re: Re: Re: Re: Re: Re: Re:
        Bach and his good friend, Ham Sandwich, walk into a bar and the bartender says, "Sorry, we don't serve food here."
        [ link to this | view in chronology ]
    - harbingerofdoom (profile), 21 Feb 2011 @ 11:11am
      
      Re: Re: Re:
      yup because the only way that the world, ney the universe itself, manages to function on a daily basis is due to the laws that have been passed.
      
      could you imagine what the universe would be like if we had not passed the law of gravity or many of the laws of physics?
      [ link to this | view in chronology ]
    - mirradric, 22 Feb 2011 @ 2:26am
      
      Re: Re: Re:
      I'll argue that doing so can be even more damaging to their reputations since there will be even less people who know the truth then.
      [ link to this | view in chronology ]
- btr1701 (profile), 22 Feb 2011 @ 1:49pm
  
  Re: Reputation
  > Effectively, the fiction could be more or better received than reality, and kill the existing reputation of the person in question.
  
  When the person in question has been dead for almost 40 years, they're pretty much beyond caring about their reputation.
  
  How long should we have to wait before someone can be depicted in a book or film? What about Mozart? Has he been dead long enough or did "Amadeus" cross a line? Or what about film "JFK"? Regardless of what you think about the conspiracy theories, should the family of someone depicted in that film be able to muzzle anyone's ability to tell that story?
  
  Or Julius Caesar? Or Alexander? Are their reputations still at issue or can we pretty much ignore that nonsense and do as we will?
  [ link to this | view in chronology ]
- wereisjessicahyde (profile), 27 Feb 2016 @ 9:04pm
  
  Re: Huh?
  "Historical fiction is a very grey area, because it can put the reputation of the actual person at risk"
  
  Not sure how Tolkien could be put at any more "risk", you can't be dead twice.
  [ link to this | view in chronology ]
Josef Anvil (profile), 21 Feb 2011 @ 10:32am

Ummmm Not Sure about this
I have to ask... just how can Coming Through the Rye be banned? I mean I get that a judge can keep the author from selling his work, but what if he just gives it away?

I don't think there is a law that says you can't make a derivative and give it away. This is the digital age, so all it takes is one copy to be shared by millions. Let the courts figure that out.
[ link to this | view in chronology ]
- Marcus Carab (profile), 22 Feb 2011 @ 7:29am
  
  Re: Ummmm Not Sure about this
  I don't think there is a law that says you can't make a derivative and give it away
  
  A common misconception. Sadly, making money has nothing to do with it: you are still liable for infringement. If you aren't profiting from your work then you are much less likely to actually be sued when the motivation is financial - but in the case of Salinger's estate (and previously Salinger himself), they are rabidly protective of his work whether or not money is involved (having even blocked things like school plays in the past)
  [ link to this | view in chronology ]
Josef Anvil (profile), 21 Feb 2011 @ 10:32am

Ummmm Not Sure about this
I have to ask... just how can Coming Through the Rye be banned? I mean I get that a judge can keep the author from selling his work, but what if he just gives it away?

I don't think there is a law that says you can't make a derivative and give it away. This is the digital age, so all it takes is one copy to be shared by millions. Let the courts figure that out.
[ link to this | view in chronology ]
abc gum, 21 Feb 2011 @ 11:12am

Bored of the Rings
[ link to this | view in chronology ]
- Anonymous Coward, 21 Feb 2011 @ 11:27am
  
  Re:
  Good book.
  [ link to this | view in chronology ]
Al Harron, 21 Feb 2011 @ 11:12am

Regarding Tolkien's fictional appearances
I feel the need to point out that Tolkien has appeared as a fictional character before, in James A. Owen's "The Indigo King," with no objections from the Tolkien estate.

Perhaps there's more to this than simply having Tolkien appear in a book and using the art style designed by Tolkien.
[ link to this | view in chronology ]
Prashanth (profile), 21 Feb 2011 @ 12:35pm

You forgot: there's another new story coming out about an author who has rewritten the Lord of the Rings stories from the perspective of Sauron and the "bad guys". Basically, according to Sauron, et al., Gandalf is just a ruthless old murderer (or something along those lines) who can't stand the progress and mechanization of the empire and believes it will "unfairly compete" (how ironic) with ancient magic, so he and the others go forth and wipe it out. It seems like this new book is also being vigorously challenged by the Tolkien estate as well.
[ link to this | view in chronology ]
- RS, 27 Feb 2011 @ 2:30pm
  
  Re:
  [ link to this | view in chronology ]
pooky83, 21 Feb 2011 @ 3:17pm

Anonymous Coward said: "'This is a work of fiction. Names, characters, places, and incidents are products of the author's imagination or are used fictiously and are not to be construed as real. Any resemblance to actual events, locales, organizations, or persons, living or dead, is entirely coincidental.'

Doesn't that pretty much cover it?"

Except that in THIS case, it is NOT entirely coincidental and are not products of the author's imagination. His inclusion of Tolkien as a character was completely premeditated.

Just sayin'. :-)
[ link to this | view in chronology ]
- Anonymous Coward, 21 Feb 2011 @ 7:21pm
  
  Re:
  You say premeditated, the statement says imagined. Potaytoes and tomahtoes.
  
  How would he write anything without premeditating upon it?
  [ link to this | view in chronology ]
Ed C., 21 Feb 2011 @ 9:42pm

I apparently need to update my will before I publish my book, because I'll be damned if the "executors" of my estate leech off my work years after I'm gone.
[ link to this | view in chronology ]
retepvosnul, 21 Feb 2011 @ 10:26pm

Reputation ?
Perhaps the estate needs to consider the impact itself has on the reputation of it's sugar daddy. It is fair to say that if a fictional rendition of Tolkien could potentially influence his reputation, then surely his own real personal institutionalized presence on Earth would.
In that case it is hard to see why the estate would think it beneficial attributing and projecting such ethically questionable characteristics onto Tolkien, Adding litigious bully and free speech censoring to an all ready extensive list containing, amongst others, long winded, boring and mediocre.
[ link to this | view in chronology ]