Jonathan Crowe

My Correct Views on Everything

In Defence of the Tolkien Estate

Much online consternation about the Tolkien Estate threatening legal action to halt sales of a self-published novel by Steve Hillard. Mirkwood: A Novel About J. R. R. Tolkien stars Tolkien himself as “a man haunted by the very myths he rewove into his famous works. […] In 1970, Professor Tolkien makes a little-known visit to America — and sets in motion the stirring of dark and ancient powers embodied in a cache of ancient documents. Destinies are altered, legends become real, and two heroines must race for their lives in vastly different worlds.”

Much of the online commentary follows Hillard’s argument in defence: that the Tolkien Estate cannot prevent someone from writing about historical figures — that there is no trademark or copyright on Tolkien’s name. Think about all the historical fiction — to say nothing of the alternate history! — that could not be written if a Bad Precedent Like This Were Set. Emily Asher-Perrin on Tor.com:

[I]f this case actually came out in favor of Tolkien’s estate, where would it end? Is the Jackson family going to sue Quantum Leap for insinuating that Sam taught little Michael how to moonwalk? How about Chuck Berry? We know that Marty McFly didn’t actually give him the idea for “Johnny B. Goode” or his new rock’n’roll sound, so he’s clearly got a case there.
And we should definitely stop making films and books about the Founding Fathers. I’m guessing the musical 1776 will be the first one on the stands. How dare they confuse people into thinking that the Declaration of Independence was signed after the whole Continental Congress had finished bursting into song!

But reading the Guardian’s coverage more closely, I think this is more about publicity rights than trying to trademark Tolkien’s name, or giving the estate a veto over works about Tolkien.

Publicity rights mean the right to control how your name and image are commercialized: it means no one else can make money off your name, your likeness, or your works — no Harry Potter merchandise that isn’t approved by J. K. Rowling and that doesn’t pay her compensation. In a nutshell: Thou shalt not make money off my work without giving me my cut.

The problem here, I think, is the book’s cover, and how it’s being marketed. “The estate claims that the book jacket’s design — a tree illuminated by rays of light above three figures — is ‘strikingly similar’ to Tolkien publications,” says the Guardian. To say nothing of the typeface, or the fact that Tolkien’s name is prominently displayed on the cover. A buyer might well be confused into thinking that this was either authorized, or somehow part of Tolkien’s legendarium. Its marketing is certainly targeted at Tolkien’s fan base — who else would buy this?

Now a biography or a scholarly work about Tolkien would also be marketed toward Tolkien’s fan base, and no one would argue that the estate would have the right to block publication in those cases. But according to the Guardian article, the estate is arguing that this particular case has crossed a line. Whether or not the estate is right may well have to be decided by a court — but I don’t think the estate is completely out of its collective mind here. Not necessarily right, but not completely and obviously wrong, either.