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N.E. Brigand
Gondolin
Feb 19 2011, 9:34pm
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Lawsuit concerning book featuring Tolkien as character.
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Thanks to a post on the Mythopoeic Society e-mail list, I've just read this article in The Hollywood Reporter, which describes how Stephen Hilliard, in response to a cease-and-desist letter from the Tolkien Estate, has filed suit to protect publication of his book, Mirkwood, a Novel About J.R.R. Tolkien. The article includes the full text of Hilliard's complaint.
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Voronwë_the_Faithful
Doriath
Feb 19 2011, 9:41pm
Post #2 of 23
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While I am sympathetic to the Estate's position (I think there would be much better and more honest ways of criticizing Tolkien's work), I'm not sure how strong their legal position is. It is certainly true that there have been plenty of books in which real people were characters, even main characters, though it is rarely used as a devise to criticize an artist's work. I'll be watching this with interest to see how it plays out.
'But very bright were the stars upon the margin of the world, when at times the clouds about the West were drawn aside.'
www.arda-reconstructed.com
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geordie
Dor-Lomin
Feb 20 2011, 12:05am
Post #3 of 23
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As one commentator notes, this book is already up for sale on Amazon. I took a look - the first few pages are on display. At the end of the passage, we read:
'...this lion of letters trudged in fear for the first time since he was eighteen, at the battle of the Somme'.
It seems the author is not entirely au fait with Tolkien's life-story. Or that he is incapable of doing simple sums.
Or is it simply that he wants to get folks like us all a-twitter?
Ho-hum. Personally, I could not care less.
(This post was edited by geordie on Feb 20 2011, 12:06am)
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squire
Gondolin
Feb 20 2011, 1:27am
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"Tolkien is quoted only one time in the novel..."
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Mr. Hilliard's complaint maintains that he only "quotes" his J.R.R. Tolkien character once, and gives the quote "in its entirety":
These creatures live to me as I am creating them. Twere I to finish, they would become wooden, lacking in life. Thus, the tale must go on. It is, after all, one belonging to all who would but participate and find its first steps, beside a secret gate.
--- J. R. R. Tolkien, Letters
Here I am confused. This is very unlike the writing of Tolkien that I know - clumsy, poorly styled, and pretentious. Is it, in fact, a "quote" from the actual J. R. R. Tolkien, in his Letters as it says, that I've forgotten? Or is Hilliard saying that he only gives "voice" to his Tolkien character once in the entire novel, so that the above speech is Hilliard's, attempting to "sound like" Tolkien in his letters?
Although I don't exactly find the above example inspiring, I have to say I'm in favor of allowing an author to use Tolkien as a character in a novel. It is not the same as writing fan-fiction that attempts to impinge on the copyrighted works of the author. And who cares if, in such an historical novel, the author uses his characters to comment on the actual fiction of the real person his character is based on? That's just criticism, and whether it's based in a fiction or in a scholarly journal, the Tolkien Estate should have nothing to say about it.
Nor should they seriously be allowed to maintain that the reading public will mistake a novel for a biography, with the "opinions" expressed by a fictionalized Tolkien being taken for the actual opinions of the late Professor himself. By that standard, whatever changes were made to the general public's perception of The Lord of the Rings by the New Line films for adaptation reasons, have been a thousand times more "harmful" to Tolkien's legacy.
squire online:
RR Discussions: The Valaquenta, A Shortcut to Mushrooms, and Of Herbs and Stewed Rabbit
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geordie
Dor-Lomin
Feb 20 2011, 1:55am
Post #5 of 23
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'Twere' is deeply clumsy in this context//
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- in fact, 'tis entirely in the wrong tense. I think.
(This post was edited by geordie on Feb 20 2011, 1:58am)
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Kangi Ska
Gondolin
Feb 20 2011, 2:21am
Post #6 of 23
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...in fact, 'tis entirely in the wrong tense. Me thinks. 
Kangi Ska Resident Trickster & Wicked White Crebain
Life is an adventure, not a contest.
At night you can not tell if crows are black or white.
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Silverlode
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Feb 20 2011, 2:47am
Post #7 of 23
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.... of "It were", which makes no sense at all in this context. That sentence should simply begin "Were I..." The whole quote is awkward and doesn't sound at all like Tolkien, with the exception of the phrase "a secret gate", which is used in two versions of a hobbit walking song in LOTR.
Silverlode
"Of all faces those of our familiares are the ones both most difficult to play fantastic tricks with, and most difficult really to see with fresh attention. They have become like the things which once attracted us by their glitter, or their colour, or their shape, and we laid hands on them, and then locked them in our hoard, acquired them, and acquiring ceased to look at them.
Creative fantasy, because it is mainly trying to do something else [make something new], may open your hoard and let all the locked things fly away like cage-birds. The gems all turn into flowers or flames, and you will be warned that all you had (or knew) was dangerous and potent, not really effectively chained, free and wild; no more yours than they were you." -On Fairy Stories
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dernwyn
Forum Admin
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Feb 20 2011, 2:59am
Post #8 of 23
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I've just finished searching through Letters - and this "quote" is not in there.
So unless it belongs to some unpublished letter...
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
"I desired dragons with a profound desire"
"It struck me last night that you might write a fearfully good romantic drama, with as much of the 'supernatural' as you cared to introduce. Have you ever thought of it?"
-Geoffrey B. Smith, letter to JRR Tolkien, 1915
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Silverlode
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Feb 20 2011, 3:20am
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I think it was a (failed) attempt at copying his style. //
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Silverlode
"Of all faces those of our familiares are the ones both most difficult to play fantastic tricks with, and most difficult really to see with fresh attention. They have become like the things which once attracted us by their glitter, or their colour, or their shape, and we laid hands on them, and then locked them in our hoard, acquired them, and acquiring ceased to look at them.
Creative fantasy, because it is mainly trying to do something else [make something new], may open your hoard and let all the locked things fly away like cage-birds. The gems all turn into flowers or flames, and you will be warned that all you had (or knew) was dangerous and potent, not really effectively chained, free and wild; no more yours than they were you." -On Fairy Stories
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geordie
Dor-Lomin
Feb 20 2011, 8:30am
Post #10 of 23
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..but unlike our author here, I don't go in much for tushery. Zounds, egad, and all that.
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geordie
Dor-Lomin
Feb 20 2011, 8:33am
Post #11 of 23
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- and given his failure to work out Tolkien's age in 1916, (he wrote that JRR was 18 at the time of the Battle of the Somme), I don't reckon much on this bloke's accuracy.
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geordie
Dor-Lomin
Feb 20 2011, 8:48am
Post #12 of 23
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We haven't heard the other side's version of the story yet
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- the complaint was only filed last Thursday, I think. All we've had so far is the author's side of the story, as reported in the Hollywood reporter, and as printed in the official complaint which forms part of that report.
For myself, I'm going to wait and see before commenting on anything but the author's awful writing style (as shewn in the extract on Amazon), and his inability to do simple sums.
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Kyriel
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Feb 20 2011, 11:48am
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You do not want to go up against Christopher Tolkien and his lawyers!
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That guy is seriously, seriously intent on keeping his dad's legacy "in the family." He probably has a whole law firm on retainer. "Stand not between the Nazgul and his prey."
Those left standing will make millions writing books on the way it should have been. --Incubus
(This post was edited by Kyriel on Feb 20 2011, 12:11pm)
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grammaboodawg
Elvenhome
Feb 20 2011, 1:24pm
Post #14 of 23
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I don't pretend to understand legalities or how to sort out the "rights" and wrongs about issues like these; but I do know that for several years, anyone approaching anything "Tolkien" should expect some sort of scrutiny or confrontation by the "Estate". They are relentless in protecting this estate, so you'd think anyone intending to use anything Tolkien-esque would know to check first, or at least be ready for a challenge.
Someone like Hilliard, I would think, would already know that and dove in believing to be in the right... or welcoming the free publicity.
It'll be interesting to see how this all washes out.
 
I really need these new films to take me back to, and not re-introduce me to, that magical world.
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(This post was edited by grammaboodawg on Feb 20 2011, 1:25pm)
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Idril Celebrindal
Dor-Lomin
Feb 20 2011, 5:59pm
Post #15 of 23
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Allowing the estate of a famous person to prevent them from being featured in an unrelated literary work would have a chilling effect on historical novels, biographies, and the like. Much as I appreciate Christopher Tolkien's efforts to preserve his father's literary legacy and good name, I think he's overstepped his bounds.
Of course, the lame pseudo-Tolkien quote doesn't exactly inspire me to buy this book.
With caffeine, all things are possible.
The pity of Bilbo will screw up the fate of many.
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Gar-heard
Registered User
Feb 20 2011, 9:40pm
Post #16 of 23
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I would really like to see the contents of this cease-and-desist letter.
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The typeface, if anything, resembles that used by New Line for the films. I don't know who would currently own that copyright
To add a few more examples of Tolkien appearing in fiction: The Young Pattulo and A Memorial Service by J.I.M. Steward features a thinly disguised caricature of Tolkien as Dr J.B. Timbermill of Merton College.
The graphic novel Heaven's War by Micah Harris and Michael Gaydos has the Inklings, including Tolkien, do battle with infamous occultist Aleister Crowley.
That "quote" is a pretty good example of http://tvtropes.org/pmwiki/pmwiki.php/Main/YeOldeButcheredeEnglishe
While I think authors should be permitted to use real characters in a fictional setting as long as it is not clearly libelous, I have grave suspicions of someone who takes out a countersuit in Texas. I am something of a Liverpool supporter after all.
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Voronwë_the_Faithful
Doriath
Feb 22 2011, 1:03am
Post #17 of 23
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I've read the cease and desist letter
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The cease and desist letter is attached as an exhibit to the Complaint (and the First Amended Complaint, which was filed the day after the original Complaint). The author and publisher misrepresent the Estate's position in a number of ways. For instance, the Complaints (both the original complaint the amended complaint) state that "the Estate also alleged that the cover art and typefaces were similar to an unidentified piece of J.R.R. Tolkien’s work to a degree giving rise to a cause of action for unfair competition." In fact, the letter specifically identifies the 2008 Harper Collins edition of The Hobbit and the 2009 edition of The Legend of Sigurd & Gudrun as examples of works that have similar cover designs, and specifies the prominent use of Tolkien's name on the cover as an important factor which the Complaints fails to mention. The Complaints also fails to acknowledge that the letter cites specific legal authority such as Texas Property Code § 26.002, which states "PROPERTY RIGHT ESTABLISHED. An individual has a property right in the use of the individual's name, voice, signature, photograph, or likeness after the death of the individual." Instead, the Complaints cite Texas Property Code § 26.012, which states that "A person may use a deceased individual’s name . . . in . . . a . . . book" and that the book doesn't violate copyright laws. But the cease and desist letter doesn't allege that the plaintiffs can not use Tolkien name at all, nor does it allege that it violates copyright. What it alleges is that it violates the right of publicity held by Tolkien's estate because "the commercial appeal of the novel is dependant upon and inextricably linked with the name and personality of JRR Tolkien and that you are using the name of JRR Tolkien in connection with, and for the purpose of advertising, selling or soliciting orders of the book."
My initial reaction when I heard about this lawsuit was that while I was sympathetic to the Estate's concerns (particularly after reading the terrible excerpt of the book), they probably were on shaky legal grounds. Now that I have had a chance to look at it more closely, I am less sure about that. I think the case raises some very interesting and important issues, and that the Estate is justified in raising them. No one questions (or should question) the right to engage in literary criticism about an author's work. Nor should any question the right to use the name of deceased individual in a book. But the question of to what extent someone should be able to use or misuse someone else's name and personality in order to sell one's own work of fiction, is I think a very valid one, and one that I look forward with interest to see how it is resolved.
'But very bright were the stars upon the margin of the world, when at times the clouds about the West were drawn aside.'
www.arda-reconstructed.com
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squire
Gondolin
Feb 22 2011, 5:11am
Post #18 of 23
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...the Tolkien Estate's primary complaint seems to be that the novel's cover design inappropriately focuses on the J.R.R. Tolkien identity of one of its characters, to the point where the public may be misled into thinking the book is a work of, or about, the actual J.R.R. Tolkien. Is that correct?
If so, the recourse would seem to be a simple redesign of the book's cover and other advertising, letting the novel stand on its own based on the publisher's ability to publicize the book in the traditional way: author, plot, reviews, advertising. But then the court is being asked to supervise the graphics and design of an ad campaign - is that permissible or usual in the course of a lawsuit?
squire online:
RR Discussions: The Valaquenta, A Shortcut to Mushrooms, and Of Herbs and Stewed Rabbit
Lights! Action! Discuss on the Movie board!: 'A Journey in the Dark'. and 'Designing The Two Towers'.
Footeramas: The 3rd (and NOW the 4th too!) TORn Reading Room LotR Discussion; and "Tolkien would have LOVED it!"
squiretalk introduces the J.R.R. Tolkien Encyclopedia: A Reader's Diary
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Voronwë_the_Faithful
Doriath
Feb 22 2011, 2:42pm
Post #19 of 23
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I doubt that would satisfy the Estate, but it might satisfy the court
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I'm engaging in pure speculation here, so don't hold me to closely to this. 
Certainly part of the Estate's objection is the way the book is packaged and marketed. And I think it might be there strongest legal argument. But I suspect that their real objection is that Hillard is using the devise of inserting Tolkien into the novel as a character in order to place Tolkien in a false light. So I doubt that they would be satisfied with just a redesign of the cover and an agreement not to focus on Tolkien's name in the adverstising of the book, without changing the content of the book. But the court could certainly make that order.
One thing that occurs to me in writing this post is that while apparently none of the other characters in the book are Tolkien characters (which distinguishes this from the similar situation some time ago when J.D. Salinger successfully enjoined publication of a Catcher in the Rye "sequel" that included him as a character), the title of the book appears to be taken from a place that (so far as I know) was invented by Tolkien: Mirkwood. That detail is not mentioned in the cease and desist letter, but I wouldn't be surprised if it comes up in the litigation.
I'll definitely be watching this to see what happens.
'But very bright were the stars upon the margin of the world, when at times the clouds about the West were drawn aside.'
www.arda-reconstructed.com
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sador
Gondolin
Feb 22 2011, 4:13pm
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"Mirkwood" is not Tolkien-invented.
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http://en.wikipedia.org/wiki/Myrkvi%C3%B0r
The same article even brings a quote by Tolkien himself, theorising about the origin of the name.
"Let me think!" - Aragorn.
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"We didn't hear anyone asking Éowyn if she wants this job; later we'll see that she definitely doesn't. Presumably she's happy to be of service now, though."
- Elizabeth.
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Voronwë_the_Faithful
Doriath
Feb 22 2011, 4:32pm
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I was hoping someone would do that research for me.
'But very bright were the stars upon the margin of the world, when at times the clouds about the West were drawn aside.'
www.arda-reconstructed.com
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Kyriel
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Feb 26 2011, 12:47pm
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He might do your homework for you, too. 
Those left standing will make millions writing books on the way it should have been. --Incubus
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visualweasel
Nargothrond
Mar 4 2011, 9:03pm
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The Wikipedia article says that William Morris was the first to use Mirkwood, thus anglicized, in The House of the Wolflings in 1888. (I think the novel was actually published in 1889, but that's beside the point.) This may be true, in the narrow sense that Morris was anglicizing this particular Norse forest, but Mirkwood was also used by Sir Walter Scott in Waverley seventy-five years earlier! So far as I know, that was actually the first use of Mirkwood, so spelled, in English. Just a piece of interesting trivia.
Jason Fisher
Lingwë - Musings of a Fish
The Lord of the Rings discussion 2007-2008 – The Two Towers – III.4 “Treebeard” – Part 1, 2, 3, 4, 5, 6
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