Tolkien Estate In Legal Spat With Author Of Historical Fiction; Will Publicity Rights Kill Off Historical Fiction?
from the overprotective dept
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.
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Filed Under: historical fiction, jrr tolkien, mirkwood, publicity rights, stephen hilliard
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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.
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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.
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Somehow I doubt that the fictionalized version will hurt Tolkien's sales. Maybe it will increase them.
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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*.
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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.
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Re: Historial Fiction
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Doesn't that pretty much cover it?
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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).
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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?
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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?
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Re: Reputation
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?
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Not sure how Tolkien could be put at any more "risk", you can't be dead twice.
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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. This is the digital age, so all it takes is one copy to be shared by millions. Let the courts figure that out.
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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)
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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. This is the digital age, so all it takes is one copy to be shared by millions. Let the courts figure that out.
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Regarding Tolkien's fictional appearances
Perhaps there's more to this than simply having Tolkien appear in a book and using the art style designed by Tolkien.
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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'. :-)
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How would he write anything without premeditating upon it?
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Reputation ?
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.
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