Christopher Tolkien at it again....

[davem]

The Copyright notice in the books states that it is prohibited to reproduce, store or transmit in any form, by any means, electronic, mechanical, photocopying, recording or otherwise, without permission of the publishers.

Any copyright holder could prevent public reading of their work if they wanted. Again, its interesting to read in Carpenter's biography & elsewhere of Tolkien's 'inspirations' - we all know about The Kalevala, The Eddas, Beowulf & The Mabinogion, etc, but he was also 'inspired' by more contemporary works thoughout his life - from Andrew Lang's Fairy books, William Morris' works & Wyke-Smith's Marvellous Land of Snergs http://www.tolkiencollector.com/snergs.htm - read this piece because I think its important to see how much Tolkien drew on the stories he & his children grew up with.

However,while Tolkien was 'inspired' by the works of earlier writers, those who follow him are 'ripping him off'. Copyright is certainly being pushed by a number of holders, to be extended both in time & in what is actually covered. What cases like these do is not simply stop the 'offenders' (the writers of Hilary's bio & Hillard as well as those who run camps like this one) but they also attempt to scare others out of doing the same thing - or even risking becoming a target. And its always small groups or organisations who get targeted by large copyright holders in order to set an 'example'.

This is certainly not something that the Tolkien Estate is alone in doing, & its not the worst, but it does seem to be getting worse. If control of the Estate at some point in the future falls into the hands of individuals who do care only about exploiting Tolkien's works for money then we could find it becomes less & less tolerant of any use of Tolkien's work that they don't benefit from. If they set up an official Tolkien Forum, with either membership fees, or which earns a lot from advertising they may decide that sites like this one infringe their copyright & send out a cease & desist letter - & I doubt the Barrow Wight would have enough cash to fight them in court over whether the Downs constitutes 'fair use' (& different countries have different definitions of 'fair use' - actually it doesn't legally exist in the UK as far as I'm aware).

[davem]

Well, you've probably all seen this already via TORn

http://www.hollywoodreporter.com/thr...dispute-184053 "JRR Tolkien Estate Settles Dispute Over Novel Featuring Tolkien As Character "

After the Tolkien estate learned of the book, it sent Hilliard a cease-and-desist letter, threatening a lawsuit if he didn't cease publishing the novel and destroy all copies.
According to the settlement, the book will now be released with a modified reference to Tolkien on the cover and will also include the disclaimer, "This is a work of fiction which is neither endorsed nor connected with The JRR Tolkien Estate or its publisher."
As a result of the settlement, Hilliard is dismissing his lawsuit in Texas.
"The settlement terms are confidential, but the agreement adequately addresses the Estate's concerns about Mr. Hillard's book," says Aaron Moss, attorney for the Tolkien Estate.

So the Estate have gone from

" threatening a lawsuit if he didn't cease publishing the novel and destroy all copies."

to

"a modified reference to Tolkien on the cover and will also include the disclaimer, "This is a work of fiction which is neither endorsed nor connected with The JRR Tolkien Estate or its publisher."

Which looks to me very like the Estate backing down after Hillard called their bluff. Clearly they never had a leg to stand on legally but expected Hillard to back down in the face of their threats. Maybe others who have been on the receiving end of their bullying should stand up to them as well?

[Bêthberry]

Originally Posted by davem

Well, you've probably all seen this already via TORn

No, as a matter of fact, on the new Middle-earth social network.

Maybe others who have been on the receiving end of their bullying should stand up to them as well?

Every legal case depends on the details, where, despite sayings to the contrary, God may not always be, as I've never thought of him as a barrister/solicitor but more on the judicial end of things.

Seriously, each case may depend on a different matter. This one was so clearly a situation of a legitimate historical fiction that obviously the Estate didn't have much to stand on. Also, it probably helped matters considerably that the case was set to be heard in North America, which has a substantially different legal milieu, and where the author would be quite a long arm's away from British retribution.

[davem]

Shocking to me that the Estate have cowed others with the threat of legal action - I think its fairly obvious that if the children's camp had also called the Estate's bluff they would have lost there too. The authors/publisher of the Hilary Tolkien bio would maybe find they too had a stronger position than they think.

Actually, the most shocking thing here is that the Estate must have known they were in the wrong & were just attempting to bully this author into destroying his book. Unfortunately, as has been pointed out elsewhere, the Tolkien Estate are not alone in behaving in this way. The Estate tried to get a book destroyed by threatening an author with legal action & if he hadn't been brave enough to stand up to them that book would have been destroyed even though it didn't infringe in any way.

Its not a 'great' book - its a fun, lightweight piece, with some interesting ideas scattered throughout it - but this guy wrote it, stayed within the law, & was threatened with being dragged through the courts unless he destroyed it.

[Mnemosyne]

So, does that mean I can publish my fan fiction in a for-profit venue? I mean, given what I've heard of this novel (and now that it's squeaked out clean, I should probably read it) it starts with the premise that Middle-earth, its races, and its history are all real, but doesn't use any of Tolkien's actual characters, except for the fictional Tolkien who translated the whole... I'll have to ditch a couple of side characters and side scenes, but otherwise I'm only stealing the races and the setting.

Or do I have to insert myself discovering the material evidence for the stories I've already written to make it squeak by the Estate?

[Nerwen]

Originally Posted by Mnemosyne

So, does that mean I can publish my fan fiction in a for-profit venue? I mean, given what I've heard of this novel (and now that it's squeaked out clean, I should probably read it) it starts with the premise that Middle-earth, its races, and its history are all real, but doesn't use any of Tolkien's actual characters, except for the fictional Tolkien who translated the whole... I'll have to ditch a couple of side characters and side scenes, but otherwise I'm only stealing the races and the setting.

Or do I have to insert myself discovering the material evidence for the stories I've already written to make it squeak by the Estate?

I think– though I haven't read the book in question, so I'm not sure – that actually setting something in Middle-earth itself would be going a bit further than Stephen Hilliard did. Anyway, as this case never went to court we don't know who would've won– so I hardly think it sets a precedent.

On that note, Davem, it's not clear to me Hilliard "called the Estates's bluff" or "stood up to them" at all. Surely if that had been so, either they'd have gone on to sue each other as threatened, or the Estate would have backed off altogether? After all, if Hilliard and his publishers had wanted to put these disclaimers on the book, wouldn't they have done so to begin with?

[davem]

Originally Posted by Nerwen

On that note, Davem, it's not clear to me Hilliard "called the Estates's bluff" or "stood up to them" at all. Surely if that had been so, either they'd have gone on to sue each other as threatened, or the Estate would have backed off altogether? After all, if Hilliard and his publishers had wanted to put these disclaimers on the book, wouldn't they have done so to begin with?

The Estate's demand was that the book be withdrawn, all copies destroyed & they threatened legal action against Hilliard if he didn't comply immediately. He counterfiled (or whatever the term is) & the result is that the book will remain available with a disclaimer (I don't see therefore how you can say that he didn't stand up to them).

http://www.guardian.co.uk/books/2011...n-legal-battle

In a letter to Hillard, the estate's lawyers, Manches, said: "At no time have our clients granted permission to use the name and personality of JRR Tolkien in the novel, nor would they in any foreseeable circumstances." It claims "unlawful commercial advantage" has been taken of the estate's "valuable rights", and argues that Hillard's book "trivialises the name, personality and reputation of the late professor".....The Tolkien estate is headed by the author's son, Christopher, as literary executor. Its lawyer, Steven Maier, said: "I can't comment on the present case in too much detail … However, the Tolkien estate will always take action to protect its intellectual property rights.

I think the fact that the novel will remain available indicates very clearly which side 'won' & which side 'lost'. If the Estate really believed they could have won they would have continued with the action - the novel itself has not been changed in any way, yet that was the issue. If Hilliard hadn't stood up to them & backed down his novel would not be available & every copy destroyed. He did stand up to them & his novel is still around. The Estate didn't get what they wanted. It also seems like the Estate not giving "permission to use the name and personality of JRR Tolkien in the novel, nor would they in any foreseeable circumstances" had nothing to do with the price of fish (as we say in the Shire).

[Nerwen]

Well, davem, you may see it in terms of "winning" and "losing"– even though, as I already pointed out, no actual court case took place– but it looks to me like they reached a compromise– which is what settling out of court means, after all.

Really, I don't see what there is for you to get so excited about. But then, hey, I never do.

[Nerwen]

I just believe it's a trifle premature to erect any statues to Hilliard the Great, Defender of Free Speech. You are talking as though there had actually been a dramatic court case, ending in a landmark victory for Stephen Hilliard on behalf of creators of derivative works everywhere. This did not occur.

What has likely happened here is that both sides were sort of testing the boundaries, and in the end neither felt confident enough to hold their ground. (Or possibly some of it was for show, anyway.) So while this dispute may have been settled, I don't see that it helps much to resolve any of the murkier questions around copyright.

[davem]

Originally Posted by Nerwen

What has likely happened here is that both sides were sort of testing the boundaries, and in the end neither felt confident enough to hold their ground. (Or possibly some of it was for show, anyway.) So while this dispute may have been settled, I don't see that it helps much to resolve any of the murkier questions around copyright.

Reading between the lines of this statement by Hilliard http://www.prlog.org/11478976-new-de...ettlement.html it seems he thinks he won:

“In the Mirkwood story, certain forces resorted unsuccessfully to lawyers to try to banish the tale. I am happy to report that this is a case of life mirroring fiction”, says Hillard.

If this is 'life mirroring fiction' then it seems Hilliard won this one - the lawyers in the book, as 'mirrored by life' were 'unsuccessful'. And he also notes:

"A sequel, which explores the fate of Tolkien's unfinished works, is planned for publication in 2012."

So, more of the same next year. Don't know why you say neither side felt confident of victory - as I said, the Estate demanded the book be destroyed but in the end it is still around, &

The only changes to the book are a modest font size adjustment on the front cover and a one-line disclaimer on the back cover. HIllard added, "There are no changes to the text of the book. This vindicates the right of the public to read fictional treatments of public figures,

When we read terms like 'unsuccessful' & 'vindicates' in this context, & that all that the Estate has gotten out of their demand that the book be destroyed because it infringed their 'ownership rights' is "a modest font size adjustment on the front cover and a one-line disclaimer on the back cover" then I can't see how its possible to claim neither side won here.

[davem]

http://www.digitaljournal.com/pr/317959

“When I began this publishing house, I had no idea that the question of whether one could libel the dead was still moot,” Ms Robinson comments about the recent, now settled, libel case lodged by the estate of J.R.R. Tolkien against Steve Hillard, the American author of fiction novel "Mirkwood" as reported in The Guardian.

“Coming from an academic background, I can attest that for those who research history, academic works are a mixture of fact and conjecture. Indeed, if we can no longer imagine how historical figures may have made the decisions they made during their lifetimes or delve into the aspects (both good and bad) of their lives, then history as a discipline is dead,” she states.

The Tolkien case has been of particular interest to the managing director of Knox Robinson Publishing as the ruling had the potential to set a precedent for or against an author’s rights to create fictional works involving real people and the powers of an estate to control the use of names and reputations in works of fiction or even historical accounts. And although the case has now been settled, the door to litigation has been opened and more cases could follow. Several of the titles Knox Robinson intends to release this year contain fictionalizations of actual historical figures....

“Historical fiction is not just another form of personal expression; the genre offers a perspective on the past that academic or even popular history cannot provide. Fictional representations can breathe life into the past and foster an organic link with the present through a common language. Historical memory in societies past was maintained through story-telling, a recognizable and easily understood medium that helped give meaning to existence as well as entertained. To inhibit or suppress the creation of fictionalized accounts of persons or events, whether past or present, would undermine an age-old form of human expression and close the door to a valuable means to interpreting life. Had the Tolkien estate succeeded in suppressing the fictional variant of the paterfamilias, it would have opened the door to further interference in the free exchange of ideas and images in the literary world. It would have been especially threatening to the growing industry of historical fiction, since authors would be hesitant to create works that might be subject to litigation.”

Mary Anne Lane is also an author at Knox Robinson and her book "Blood Banner", the first book in a trilogy on the Landsknechts, is scheduled for release in December. She agrees with Ostryzniuk’s assessment. “Not being able to use people from history in books would damage the world of literature because recent history could not be written,” she comments. “No war films could be made, nor books written about it. No cowboy films could be shown, no courtroom dramas. That means no 'They Died With Their Boots On', no 'Inherit the Wind', no 'Valkyrie'.”

Worth contemplating how dangerous a victory for the Tolkien Estate could have been. This was much bigger than whether an author could write a novel with Tolkien as one of the characters. The damage that could have resulted (for authors of both fictional & non-fictional works) could have been extreme.

[The Squatter of Amon Rûdh]

I don't suppose that Christopher Tolkien, or any other trustee of the Tolkien Estate, actually reads everything that mentions even his own name, let alone JRRT's. The trustees leave that to the Estate's legal representatives (Manches of Oxford, I believe), whose advice I expect they follow in most cases.

Now, the basis of davem's annoyance seems to be that the Tolkien Estate can and does rigidly control the production and dissemination of all material by and closely related to J.R.R. Tolkien, including his image, languages and, apparently, favourite typefaces. I can't really blame them for wanting to do this, and to be honest I can't really fault the law for allowing them to do so. The point of libel laws is to prevent people from disseminating false written reports of our personalities and conduct, and the Tolkien estate is trying, by controlling the use of Tolkien's image, to maintain that protection for JRRT posthumously as I should like to do for my own family. It shouldn't be enough to transplant the false report into a loosely fictional environment and claim artistic freedom. As for controlling the use of material produced by JRRT, well that's nice and simple. JRRT isn't around to exercise that control, but the copyright still exists, legally in the hands of his heirs and successors. If there were no protection of copyright, publishers could simply take manuscripts they were sent, print them commercially and keep all of the profits. The authors would have to be content to see their names in print, while somebody else made a fortune from their work. In fact, it was something of this nature that started the whole Tolkien legal odyssey in the first place: I'm sure we've all heard of Ace Paperbacks. The basic principle seems to be that the Estate doesn't want to see people making money out of JRRT's name, image and ideas unless they get a cut of the profits and the project is one that they consider appropriate. If that means that I don't see (for whatever unfathomable reason) the verse Beowulf, then at least it also means that I won't have to read about a fist-fight in Balliol Quad between Tolkien and F.R. Leavis or Tolkien as the leader of an underground fascist group. Robot Tolkien would, I'm sure, be a great loss to us all, but I scarcely think that Manches are going to trouble themselves with him.

Since this work is to be published in the United States, U.S. law will apply rather than British, which I suppose is good news for those who like their literary criticism to be fictionalised. The Tolkien Estate would have far greater powers to prevent me from publishing works including Tolkien as a character. I'm not sure that I'd be happy doing that anyway: I didn't know him, and a fictonalised version of someone runs too great a risk of creating a new and inaccurate public perception of that person. Perhaps that is why the Estate is so keen to suppress such a use of JRRT, although I notice that the publication of Here There Be Dragons has gone ahead without their interference, and that a film is planned.

As for blurring the lines between fiction and reality, literary criticism and literature itself, well it's all a bit too much like playing to the gallery for my liking. There's nothing particularly groundbreaking in it - Tolkien's relative paucity of female characters was the subject of many early negative reviews, and I'm sure we must be into post-post-modernism at least by now. Such an approach runs the risk of creating poor criticism that is also dull literature, and failing to please even its own tiny target audience. Perhaps without the controversy of an attempted ban we'd be looking at yet another forgettable book in a long tradition of forgettable books.

[Anguirel]

Originally Posted by The Squatter of Amon Rûdh

If that means that I don't see (for whatever unfathomable reason) the verse Beowulf, then at least it also means that I won't have to read about a fist-fight in Balliol Quad between Tolkien and F.R. Leavis or Tolkien as the leader of an underground fascist group.

... although I notice that the publication of Here There Be Dragons has gone ahead without their interference, and that a film is planned.

Well, I would very much like to read about that fist-fight, although I reckon William Empson would definitely have emerged victorious...

I'd never heard of the work you just cited; have wikied, and it looks quite similar to this Mirkwood thing, but plus better book jokes and King Arthur; is it worth a look?

[davem]

Originally Posted by The Squatter of Amon Rûdh

Now, the basis of davem's annoyance seems to be that the Tolkien Estate can and does rigidly control the production and dissemination of all material by and closely related to J.R.R. Tolkien, including his image, languages and, apparently, favourite typefaces. I can't really blame them for wanting to do this, and to be honest I can't really fault the law for allowing them to do so.

Not really - what the Estate were attempting to do was prevent the use of a historical figure (JRR Tolkien) in a fictional work. If that is not to be allowed then you effectively end both historical fiction which uses real people as characters (ie everything from WWII novels which depict Churchill or a recent Doctor Who episode which featured Richard Nixon, & the like, would not be legal) or even non fiction works like Carpenter's Inklings & the invented 'typical' Inkilings meeting in the chapter Thursday Nights. You wouldn't be able to use any historical figure without the permission of their Estate.

The point of libel laws is to prevent people from disseminating false written reports of our personalities and conduct, and the Tolkien estate is trying, by controlling the use of Tolkien's image, to maintain that protection for JRRT posthumously as I should like to do for my own family.

But you can't libel the dead. And the Estate is not attempting to use libel, but 'copyright' - which doesn't (& never has) applied to a dead individual's personality or character. And whether or not you would 'like' to maintain such protection for your own family, legally you don't have that right.

It shouldn't be enough to transplant the false report into a loosely fictional environment and claim artistic freedom.

But legally it is enough.

The basic principle seems to be that the Estate doesn't want to see people making money out of JRRT's name, image and ideas unless they get a cut of the profits and the project is one that they consider appropriate.

Would you apply that same principle to the Estates of individuals you didn't like - should the heirs of Richard Nixon, Saddam Hussain or Myra Hindley have the right to prevent them being depicted in drama/drama-docs in ways that they didn't like?

I didn't know him, and a fictonalised version of someone runs too great a risk of creating a new and inaccurate public perception of that person. Perhaps that is why the Estate is so keen to suppress such a use of JRRT,

But again, you're missing the point - its not about what the Estate is keen to do, or what they'd like - its about the law & their rights under copyright. They don't have the right to demand what they did.

As for blurring the lines between fiction and reality, literary criticism and literature itself, ..... Such an approach runs the risk of creating poor criticism that is also dull literature, and failing to please even its own tiny target audience. Perhaps without the controversy of an attempted ban we'd be looking at yet another forgettable book in a long tradition of forgettable books.

Again, this is not about 'running risks' - & if it was I'd say the risks of such a 'ban' on the use of historical figures in fiction/Lit crit are infinitely greater - its about what's legal & what isn't. The Estate simply don't have the rights they were claiming - & nor should they. Set aside the fact that this is about JRRT - this is very simple - should a writer be able to use historical figures in fiction or not? If you oppose JRRT being used as a character in this book you ought equally to oppose any work of fiction - book/movie/TV series - which depicts historical figures.

[The Squatter of Amon Rûdh]

Originally Posted by Anguirel

I'd never heard of the work you just cited; have wikied, and it looks quite similar to this Mirkwood thing, but plus better book jokes and King Arthur; is it worth a look?

I have no idea, never having read it. Having read that synopsis, though, I expect that I will eventually.

[davem]

Perhaps the reason the Estate went for MirkWood & not 'Here there be Dragons' is that Mirkwood was self published & HTBD is published by Simon & Schuster (owned by CBS & one of the biggest publishers in the world). I suspect they knew S&S would stand up to them but expected Hillard to back down.

[The Squatter of Amon Rûdh]

Would you apply that same principle to the Estates of individuals you didn't like - should the heirs of Richard Nixon, Saddam Hussain or Myra Hindley have the right to prevent them being depicted in drama/drama-docs in ways that they didn't like?

Technically I can neither like or dislike any of those people, since I've never met them. Whether I approve of them or not doesn't change my distaste for misleading historical fiction about them. It would be easy, for example, to write a story in which Myra Hindley explains why she committed her crimes. It would be easy to have Saddam Hussein be forced to explain himself to the family of a murdered political dissident, but in the end those stories would have no real value, because they would reflect what the author would like those people to be, or wants the audience to think they were, rather than reality; whilst giving the appearance of reality by the use of real names and personas. Reality is always more challenging, and ultimately more beneficial to the observer, which is why the best historical fiction avoids painting too detailed a picture of any real figure. Even the Flashman books, which are deliberately outrageous, are based on solid research into all of the events and (long dead) characters portrayed, not just what George Macdonald Frazer thought would suit his purpose. If you use real people and events in a story you have a duty to them not to show them doing and saying things that they would never have done or said - you can't have Cecil Rhodes condemning imperialism, for example, or Richard the Lionheart extolling the virtues of England. One of the great advantages of history is that the events of the past have no overriding purpose or message; the facts seldom support any one view, and they make no account of sensibility or taste. The very nature of fictional writing ensures that it embodies one person's beliefs and opinions, and the very events bear out those opinions. To present the latter as the former is to present the author's opinions as historical reality, which is profoundly dishonest.

Not really - what the Estate were attempting to do was prevent the use of a historical figure (JRR Tolkien) in a fictional work. If that is not to be allowed then you effectively end both historical fiction which uses real people as characters (ie everything from WWII novels which depict Churchill or a recent Doctor Who episode which featured Richard Nixon, & the like, would not be legal) or even non fiction works like Carpenter's Inklings & the invented 'typical' Inkilings meeting in the chapter Thursday Nights. You wouldn't be able to use any historical figure without the permission of their Estate

The typical Inklings meeting was drawn from the actual words of the participants, drawn from their letters, diaries and other writings. Its purpose was to show what it might have been like at an Inklings meeting, not as a critique of the Inklings or how Humphrey Carpenter thought an Inklings meeting should have been conducted. It was therefore at worst a very well-researched and objective piece of historical fiction. There was nothing in it that could possibly offend the estates of the people involved unless they were offended by what their ancestors had actually said, which would be tough luck for them really. The purpose of Mirkwood is manifestly different. I can see why Tolkien's estate would like to stop its publication, and personally I can't understand why a literary critique can't be written and published as such. I doubt that the wider implications had occurred to them, to be quite honest; although some sort of standard for the presentation of reality in fiction ought to exist. In short, you can't libel the dead, but perhaps I'd have to read and watch a lot less drivel if you could.

Perhaps the reason the Estate went for MirkWood & not 'Here there be Dragons' is that Mirkwood was self published & HTBD is published by Simon & Schuster (owned by CBS & one of the biggest publishers in the world). I suspect they knew S&S would stand up to them but expected Hillard to back down.

Perhaps they liked Here There Be Dragons, but thought that Mirkwood was awful. I suspect you may be right, though. I can't blame them for trying, because I can't imagine that they would object to something sympathetic and this wasn't after all a factual account of Tolkien, but the product of a mind that had never known him personally. I'd feel differently if the Estate had tried to suppress embarrassing revelations about JRRT or, indeed, anyone else.

[davem]

Originally Posted by The Squatter of Amon Rûdh

It would be easy, for example, to write a story in which Myra Hindley explains why she committed her crimes. It would be easy to have Saddam Hussein be forced to explain himself to the family of a murdered political dissident, but in the end those stories would have no real value, because they would reflect what the author would like those people to be, or wants the audience to think they were, rather than reality; whilst giving the appearance of reality by the use of real names and personas. Reality is always more challenging, and ultimately more beneficial to the observer, which is why the best historical fiction avoids painting too detailed a picture of any real figure.

But should an author be banned from writing such stories - or punished if they do? Should the author of such fiction be dragged through the courts & risk losing their livelihoods & made bankrupt for such 'presumption'? Define 'reality' - & prove that it is more 'beneficial' (in fact, define 'beneficial' in this context...) Where I disagree with you is here is that you seem to want to restrict BY LAW! what an individual can do with his culture, what use he can make of the people who preceded him. Are you really saying that the story of the real 5th century warlord on whom King Arthur is ultimately based is actually more beneficial than what Malory or the Gawain poet made of it? Should Malory have been forbidden to write the Morte d'Arthur because it was not historically acurate? Or was it permissible because Malory wove the 'real' Arthur into a 'romance'? And then why not the weaving of the real Tolkien into a romance?

you can't have Cecil Rhodes condemning imperialism, for example, or Richard the Lionheart extolling the virtues of England. One of the great advantages of history is that the events of the past have no overriding purpose or message; the facts seldom support any one view, and they make no account of sensibility or taste. The very nature of fictional writing ensures that it embodies one person's beliefs and opinions, and the very events bear out those opinions. To present the latter as the former is to present the author's opinions as historical reality, which is profoundly dishonest.

Yes - you absolutely can! And why should you not? If you make clear that you are weaving a fantasy & that you are not presenting the 'truth' - which Hillard clearly does. You seem to want to hog tie, to cripple the human imagination. Why should not Tolkien be a character in a fantasy. Copyright only prevents you reproducing his works, it does not, & should not, prevent you writing a fantasy about him flying to New York, or playing with the conceit that he didn't invent Middle-earth but merely translated the stories in the Red Book. Mirkwood is a fantasy novel which plays around with that conceit.

The purpose of Mirkwood is manifestly different.

Yes - its a fantasy novel.

I can see why Tolkien's estate would like to stop its publication, and personally I can't understand why a literary critique can't be written and published as such. I doubt that the wider implications had occurred to them, to be quite honest; although some sort of standard for the presentation of reality in fiction ought to exist.

Perhaps the Government could set up a committee to determine what authors can & cannot write. Artists are too dangerous & certainly too bloody cocky to be allowed to write what they want. Apparently there are people out there publishing books full of stuff they've just made up!

Perhaps they liked Here There Be Dragons, but thought that Mirkwood was awful. I suspect you may be right, though. I can't blame them for trying, because I can't imagine that they would object to something sympathetic and this wasn't after all a factual account of Tolkien, but the product of a mind that had never known him personally.

I can blame them. This would have been the thin end of a very nasty wedge. It wouldn't simply have prevented any unauthorised depiction of historical figures, it would also have put the kibosh on speculation about them & their motives. It would effectively hand total control of the person & character of a historical figure over to that person's estate & while that might prevent the individual being exploited or 'misrepresented' by an author, it would effectively mean that the individual could only be depicted in the way his/her estate approved of - if the estate 'own' the person & character they could even prevent factual depictions of the individual if they didn't approve of those facts or want them made public - which is effectively what has happened with Wheelbarrows at Dawn - they've used copyright to prevent facts being published.

[Anguirel]

Squatter, as ever supremely enjoyable prose, but it raises for me some questions about what you enjoy (feel free to regard them as impertinent):

are you pro-Sir Walter Scott? A pretty marginalised writer now but nonetheless I think a great one, whose admirers (Eliot, Tolstoy etc) more than make up for any quantity of present denigration. Of course, though, he is a serial violator of history, a prince of anachronism, a high priest of misconception

(so is Shak, but he's a) too obvious b) so famously hated by Tolk that I always feel awkward mentioning him outside the role playing forums)

I can't agree with your definition of fiction, which sounds more like propaganda. Good fiction shouldn't be agenda-led, should have little to do, primarily, with beliefs and opinions; it should be more to do with the desire to perform a skill; pleasing others, not yourself; and only pleasing yourself when you trust yourself to please others.

It's a frequent and I think really damaging fallacy that all good historical fiction is making the same claim to truth as good history. Shakespeare productions (argh I did it again, it slips out) set in 1930s Sicily aren't necessarily making a historical, so much as an aesthetic and artistic point, and a lot of historical fiction is like that, too. It doesn't mean it's all no-good lies; we've developed a little from Plato, despite what Professor Kirke says in The Lion the Witch and the Wardrobe; just far enough, even, to guess Plato might have been joking?

Finally, I'm interested by your stress on the importance of knowing Tolkien personally; does this mean you think the Estate loses its main card in a generation or so? (Of course this would be supported legally; I think books go out of copyright after, what is it, 65 years?)

Basically, I'm with davem in that I hate the idea of anyone hedging the freedom of the historical novel about with clearly defined rules. In fact I get more exercised about it as I think about it. We really shouldn't have super-injunctions on the past. That would be unutterably bad. It's bad enough that the Max Moseley ruling means very rich people can pulp stuff they think is written about them in the present (this recently happened to a novel by Rachel Cusk)

I ought to add that I have started to think of this little discussion as "davem at it again"...

[davem]

Seems to me some people have this Tolkien shaped blindspot as far as this discussion goes. Its being seen as a case of the Tolkien Estate (Good Guys) defending JRR Tolkien (Good Guy), & therefore 'real' fans ought to align themselves with them against their 'foes' - whether that's the authors of the Hilary Tolkien biography & Stephen Hillard (Bad Guys). To oppose the Estate & object to their behaviour in these cases is seen almost as a 'betrayal' of Tolkien himself (I suspect that's certainly Garm's position reading his comments). One ought not to even question the behaviour/choices of the Estate because they simply cannot be wrong due to their connection with JRR Tolkien.

This is not about whether JRR Tolkien should be used as a character in a fantasy novel. Its about whether a writer of historical fiction should be free to use historical persons in their fiction. Or whether in a non-fiction work its acceptable to speculate on an individual's actions/motivations & play 'what -if'. To argue that they should not (because you can't write a law purely to protect JRR Tolkien from being used in such a way - its everyone or no-one who get's that protection) would put an end to most historical fiction, much biography, & would in effect turn a real once living, breathing person into a commodity. And that in effect is what the Estate is attempting here - to reduce JRR Tolken to a product which they own & can sell on or withhold.

So, you don't like JRRT being presented in such a way, turned into a character - fine - as long as you take the same position regarding every other work of historical fiction which uses real people as characters. If you support the Estate in this then get rid of your Malory, your Shakespeare, your Tolstoy, your Titanic DVD (& your Doctor Who DVDs too), your King's Speech, Lawrence of Arabia, Frost/Nixon & All the President's Men - well, you get the point.

[Morthoron]

I wonder if other famous dead people can be trademarked. I would imagine if you chose the right corpse, it could be very profitable. Like Elvis, or Marilyn Monroe. Maybe even Shakespeare.

[blantyr]

Originally Posted by Morthoron

I wonder if other famous dead people can be trademarked. I would imagine if you chose the right corpse, it could be very profitable. Like Elvis, or Marilyn Monroe. Maybe even Shakespeare.

Just as an illustration that the above is done, the Associated Press reports Lisa Marie Presley selling Elvis estate... for about $100,000,000.

The heirs of a famous person do get control of the "name and image" to some extent. There is a new profession of being an agent for dead people, helping the heirs or estate profit off the heritage of the deceased. I don't know all the details, and it likely changes from country to country, but for some dead people a lot of money is involved.

[davem]

Bit by bit every element of our culture is being taken into private hands - even our shared history, which is effectively an attempt to stake a claim to our memories & what has made us what we are. History could then be re-written to suit the owners of the Copyright on it.

Still, as long as it stops some obscure Texan author being able to put JRR Tolkien in a novel that a few hundred people will read its worth it.....

(Puts on Helen Lovejoy voice: 'Won't somebody pleeease think of the Tolkien children!")

[Bêthberry]

If I were the Estate, I would be more inclined to take a good look at this:

filming Mordor in the tar sands

and this

a blog on the tar sands project using Jackson and Tolkien

which were outed as hoaxes on an Alberta newspaper:

One hoax to bind them

If I were Jackson I might also take a good look at how my name and stature is being used in someone else's political satire.

[The Squatter of Amon Rûdh]

The hoax is related to filming, which means that it's the studio's problem and nothing to do with Tolkien's estate. The only thing that worries me is that Peter Jackson might decide that Mordor would make a really good setting for three hours of completely new story (replacing extraneous rubbish like the conversation with Smaug) and that Alberta is the perfect place to shoot it.

As for the wider implications of the Estate's activities, I can admit to being completely wrong about their enforcement of the use of Tolkien's image and identity in fiction. I overreact occasionally to what look like attacks on Christopher Tolkien when the Tolkien Estate does something draconian. I dislike the conflation of Christopher Tolkien, the Tolkien Estate and the Estate's legal representatives, and I don't like the idea that the Estate aren't entitled to defend their rights against even their fans just because we buy the product. I'll admit, though, that I've been concerned by several of the Estate's activities of late, particularly in the suppression of Wheelbarrows at Dawn (which I can't imagine said anything damaging about anyone) and the assault on the Tolkien Society a few years back over the use of the Tolkien name. I am concerned that the Estate is making enemies of people who should rightly be its friends and its reasoning looks increasingly shaky. In the absence of further information, though, I shan't be blaming any one person.

As for the wider area of the use of factual people and events in fiction, I still hold that we ought to have progressed somewhat since Shakespeare's day. He did not have the artistic freedom to say what he liked, even if it was true; and I suspect that he would have said whatever pleased Queen Elizabeth anyway. Somebody has be a writer's patron. I object to people altering history for the sake of a good story, whilst still presenting the good story as history. That leads to all the dearly held national myths that keep people fighting wars five-hundred years after the original disagreement - which was like as not about who owned an egg. Shakespeare is only the worst offender in the English literary pantheon, followed no less ably by Scott and many, many others.

I'll address a couple of the examples, because I love to derail conversations by concentrating on minutiae. I'm sure that we're all in agreement that King Arthur isn't a real person. A mythological conflation of five or more different people is not an historical figure, and by the time Malory got his hands on him, such luminaries as Geoffrey of Monmouth and Chrétien de Troyes had already removed what little personality was left and replaced the man with an ideal. In fact, Malory invents surprisingly little of the modern Arthur myth, being content to retell the story he was told, which had already been exported from Wales to France and thence to England and everywhere else. Even if somehow one could trace all the threads of Arthur back past Gildas and into real history, there wouldn't be one man, but several, one of whom may have been called something that can be rendered in Latin as Artorius. I once even read a serious argument that Arthur was Cerdic. I'd say that's fair game; indeed, I'd say that's an invitation to imagine.

The King's Speech - a very enjoyable film - suffered to my mind from its incomprehensible character assassination of Archbishop Lang. The villain of the film was obviously George VI's speech impediment, with the Austrian bogeyman waiting in the wings, so there was no need to make one out of a man who built his clerical career on work in deprived inner cities. Titanic, the value of which resides solely in its reconstruction of the ship, repeated a myth that J. Bruce Ismay gave orders that caused the entire disaster, when contemporary inquests hostile to him proved no such thing. These instances perpetuate the myth that everything is the fault of one bad person who has something to gain, or that a hero will come along and save us from the bad people. If only either of those things were true.

I can't agree with your definition of fiction, which sounds more like propaganda. Good fiction shouldn't be agenda-led, should have little to do, primarily, with beliefs and opinions; it should be more to do with the desire to perform a skill; pleasing others, not yourself; and only pleasing yourself when you trust yourself to please others

I said that writing embodies the views of its writers, not that it's always intended to promote an agenda. Tolkien wrote books that embody a Christian world view, but he wasn't pursuing an agenda. Writing sympathetic character who embodies all that we dislike is, for example, not easy. It's even harder to write a wise character who gainsays plausibly our own deeply held beliefs, or to write an outcome that we consider implausible. It is impossible to escape from our beliefs and presuppositions about the nature of the universe and humanity's place therein, hence writers embody their outlook in their work even when they don't mean to do so.

And that's all I have time for this evening. I may be back to say more later.

[davem]

Originally Posted by The Squatter of Amon Rûdh

I dislike the conflation of Christopher Tolkien, the Tolkien Estate and the Estate's legal representatives, and I don't like the idea that the Estate aren't entitled to defend their rights against even their fans just because we buy the product. I'll admit, though, that I've been concerned by several of the Estate's activities of late, particularly in the suppression of Wheelbarrows at Dawn (which I can't imagine said anything damaging about anyone) and the assault on the Tolkien Society a few years back over the use of the Tolkien name. I am concerned that the Estate is making enemies of people who should rightly be its friends and its reasoning looks increasingly shaky. In the absence of further information, though, I shan't be blaming any one person.

But Christopher (+ Adam) effectively are the Estate. Unless you're arguing that Manches are basically doing what they like & acting without any authority then you have to accept that Christopher + Adam k now & approve of their actions. If we were talking about one incident I could put this down to over zealous lawyers (are there any other kind?). However, we're not simply talking about one incident. There was the Tolkien Society thing you mention, Wheelbarrows at Dawn (a mis use of the spirit of Copyright Law because a privacy law was not available (nor should a privacy law cover incidents that happened nearly a century ago - especially considering all parties concerned are long dead). This attempt to prevent publication of a fantasy novel which uses Tolkien as a character but clearly states that its all pretend & that the author is exploring the Translator Conceit which Tolkien himself came up with - is pushing the idea of 'copyright' way beyond the legal definition (& as lawyers they should have know that - they probably did but thought Hilliard would back down) The incident over the (non-profit making) children's summer camp is fairly contemptible as far as I'm concerned.

I object to people altering history for the sake of a good story, whilst still presenting the good story as history. That leads to all the dearly held national myths that keep people fighting wars five-hundred years after the original disagreement - which was like as not about who owned an egg. Shakespeare is only the worst offender in the English literary pantheon, followed no less ably by Scott and many, many others.

But what would you do to stop it? Braveheart (or that American movie from a few years back that showed the yanks capturing the Enigma machine) & the like are certainly annoying, but what't the alternative? Do you have the government dictating THE FACTS, & banning historical fiction? And would you trust them to do it? I heard a few years back that in US state schools children were being taught in history lessons that the Irish potato famine was caused by the British in a deliberate act of genocide. History is written by the winners (& other cliches....) Do you want censorship (even of fiction - in fact you'd finish off the genre of historical fiction at one fell swoop as no-one would be able to make anything up. In fact why stop there - why not get rid of the other annoying genre, SF - all that stuff about faster than light travel & alien civilisations - where's the evidence for them?)
[/QUOTE]

The human imagination works through stories & all stories are ultimately 'what-ifs'. You talk as if history was all hard facts that no-one disputed & that could be set out fair & square. Going back to Shakespeare & taking Richard III as an example. Everyone with an iota of common sense knows that Richard was a good king, decent bloke (for the time he lived) & nothing like the monster created by Shakespeare. However, there are still historians who will argue that he was pretty much as bad as Shakespeare presented him (Desmond Seward & Michael Hicks spring to mind). Of course, as we get closer to the present there is (usually) less dispute, but ....And of course, whatever Richard was really like Richard III is a work of genius & 'true', even if not factual (a vital distinction, IMO).

What Hilliard does in Mirkwood is take the Translator Conceit & the lack of central female characters in LotR & play around. There's no harm in it. Its a bit silly in parts, very silly in other parts & frankly dumb here & there. As I've stated, its a pot boiler. Its fun & carries you along. I wouldn't read it again, but if I can get the sequel for a couple of quid on the Kindle I'll probably buy it just to see what happens next.

[Alfirin]

An example I am fond of of "History must be the way we said it was". A few years ago, one of the documentary shows did a program where the reconstuced the actual appearance of historical individuals from thier death masks. One of the individuals they did was Abraham Lincoln. Since the reconstructions were being done in a very good computer, the show people decied to take advantage of that and also show something that no one had probably seen since Lincoln's death; what he looked like similing. As they pointed out, the somber faced Lincoln that most people grew up with was mostly a result of how long it too to take a photo back when he lived, and what a serios business photo's were considered. The histroical record point out that Lincoln was in fact famous for his jokes and wit (it was a big part of his appeal). When I went to read online assesments of the progam (including some by fairly well established historians) you'd be surprised how many took offense at thier doing so, saying that showing Lincoln smiling was "an insult to his dignity of image".
Honestly, sometimes I fear literature is going to end up the way Ray Bradbury predicted (not in the way he imagined it in Farenheight 451 the way he imagined it in some of his other stories, like "Usher II" in The Martian Chronicles) one where only the most objective form of reality is permitted and imagination and fantasy are effectively banned.

[Bêthberry]

Originally Posted by The Squatter of Amon Rûdh

The hoax is related to filming, which means that it's the studio's problem and nothing to do with Tolkien's estate. The only thing that worries me is that Peter Jackson might decide that Mordor would make a really good setting for three hours of completely new story (replacing extraneous rubbish like the conversation with Smaug) and that Alberta is the perfect place to shoot it.

Imagine him having to place an acknowledgement to the hoxers in the credits for helping him find Mordor.

However, this development by the hoaxers does not appear to be based so entirely on the film, as none of the characters in the photo look like the film characters. Is this appropriating Tolkien for their own political agenda?

tar and feathering Tolkien

I'm trying to understand how this political satire using Mordor is acceptable but the Calgary children's summer camp use of Rivendell is not.

[Boromir88]

Agree or disagree with the Estate's course of action there really is no need to paint the dispute into terms of good people vs. bad people, or winners and losers.

I will not buy or support Dan Brown's books, but can't put my opinion any better than Sardy:

I agree 100% that no book should ever be censored because of the beliefs, prejudices, sensibilities, perceived offense or even hurt feelings of any person or group.

I will let my money determine what I like reading, not any person, or group of persons, trying to use the legal system to stop publication of fiction. Funny enough, the Estate may have caused more attention on Hilliard's book with the threat of a lawsuit than if they simply just ignored it.

If I recall correctly, Dan Brown also has some sort of disclaimer on his books about being historical fiction and not meant to be taken as historical fact in any way.

Now onto Hilliard = winner, Estate lost! Eh, lawsuits typically start at the most extreme and severe charges as possible. That is the nature of lawsuits, trump up and tack on whatever case you can then let the lawyers reach a settlement. I can't speak for the Estate, but I can't see how it was reasonably believed they'd succeed in the "cease and desist" order. You design lawsuits to punch however hard you can, because most of them end with some sort of compromise and neither party getting all their demands. Same way with criminal charges, the reason you charge someone with a felony such a perjury, along with a misdemeanor like "misleading a federal investigation" is if the perjury charge is dismissed, the misdemeanor charge is much easier to prove and likely returned guilty.

In this case the Estate threatened severe action. It appears both parties' lawyers met, settled, and reached a compromise to add a disclaimer. I doubt either party got exactly what they wanted, but they were both happy enough with the settlement to no longer pursue court action. Anyway, that's the nature of lawsuits, you fire out however hard you can and then *hopefully* reach a suitable agreement by all parties. There's no reason to stand up and proclaim any great victory or that the Estate will (and should) stop trying to be such lawsuit-happy bandersnatches.

[davem]

Originally Posted by Boromir88

In this case the Estate threatened severe action. It appears both parties' lawyers met, settled, and reached a compromise to add a disclaimer. I doubt either party got exactly what they wanted, but they were both happy enough with the settlement to no longer pursue court action. Anyway, that's the nature of lawsuits, you fire out however hard you can and then *hopefully* reach a suitable agreement by all parties. There's no reason to stand up and proclaim any great victory or that the Estate will (and should) stop trying to be such lawsuit-happy bandersnatches.

Not exactly - what you're talking about is a situation where someone is charged & taken to court on criminal charges. This was a civil case where the Estate threatened to take Hillard to if he didn't withdraw his book & destroy all copies (I can't recall whether they asked for damages too). In this case he counter filed & effectively said 'Come & have a go, if you think you're hard enough'. At which point the Estate responded 'Er.....OK, tell you what ..just change the cover font a bit & put a line on the back cover saying the book isn't authorised, &, er, we'll say no more about it...'

Seems like the Estate expected the same response from Hillard as they got from the publishers of Wheelbarrows at Dawn & the owners of the children's camp - that he would just back down & do as he was told.

Simply put, - 1)I demand you pay me a million dollars or I'll drag you through the courts & bring down the whole weight of the Justice system on your head, 2) You refuse & tell me in no uncertain terms that you ain't paying a penny 3) We get together & have a 'discussion' & come to an agreement that you'll hand over $5.

Now, you could argue that we've come to a 'compromise' & there are no 'winners', but I don't know how many people would be convinced by that. Most of the reports I've read are of the opinion that if it had come to court the Estate would have lost as copyright simply doesn't cover the person & character of a dead individual, only their works. Its also highly questionable whether the Estate would have won the Camp Rivendell case, & I reckon that a decent lawyer could have won the case for Wheelbarrows at Dawn too. And perhaps if the Tolkien family don't agree with the actions Manches are taking they should look for new lawyers to represent them.

[davem]

http://sacnoths.blogspot.com/

John Rateliff on a recent documentary about Tolkien by Joseph Pearce.

It's not the facts but the interpretation where this piece falls down for me. The argument is not just that Tolkien is a Catholic writer -- a self-evident truth -- but that a Cathl0centric point of view is the only valid one through which to interpret his work. To try to build his case, Pearce resorts to heavy allegorization of the evidence. Thus he asserts that "Tolkien's Melkor is merely another name for Satan" and "merely different words for the same thing: Melkor IS Satan". The Lord of the Ring himself is "Sauron, the greatest of Satan's servants"..... one long scene (some fifteen minutes, out of a total running time over only about an hour) dramatizes the famous walk in which Tolkien and Lewis debated whether myths cd convey truth, which ended in Tolkien's assertion that Xianity was the one true myth. While v. well done, it contains two fairly major distortions. It presents Tolkien as doing almost all the talking while Lewis listens attentively, offering up a few respectful questions from time to time. This bears no resemblance to any account of Lewis as a conversationalist I've ever seen. It also portrays this as a dialogue, completely omitting Hugo Dyson, the third participant in that debate -- and assuming Dyson (a devout Xian but deeply bigoted against the Catholic church) held his tongue and had no influence on Lewis's decision to rejoin the Anglican church rather than become Catholic upon his return to Xianity is an iffy proposition.

Those changes can be defended on the grounds of dramatic license (after all, we only have Tolkien's account of this meeting, which doesn't include any indication of what Dyson said). But the second is far more problematic. Pearce has the actor playing Tolkien** repeat a passage from a 1958 letter to Deborah Webster Rogers: "I am a Christian (which can be deduced from my stories), and in fact a Roman Catholic." But this is deeply deceptive, for the very next sentence goes on add "The latter 'fact' perhaps cannot be deduced". That is, Tolkien felt that his Xianity was obvious to an attentive reader but his Catholicism was not, and Pearce seems to be manipulating the evidence to hide this fact.

This is a 'documentary' & Pearce (a Catholic Priest) would certainly, hand on heart, tell you that he was only stating the 'facts' about Tolkien in this documentary. Rateliff disputes that - & he certainly demolishes Pearce's interpretation. In this scene referred to above it seems Pearce has taken words wrote in one context & has him saying them in another, he changes a three-way conversation to one in which Tolkien pontificates & single-handedly brings Lewis back to the faith.

Is this acceptable? Anyone watching this 'documentary' could well take the events & interpretation contained as being 'factual', when clearly Pearce's intention is to strip Tolkien down to a CATHOLIC writer, who wrote Catholic stories which can only be appreciated when read as Catholic allegories (& probably only fully understood if the reader is a Catholic too - you certainly get that sense from reading Pearce's books on Tolkien).

So, is the 'documentary' any more acceptable than Hillard's novel? Both have Tolkien doing/saying things he never did (or distort things he did do & spin their meaning in Pearce's case). Yet Hillard (even before the Estate got involved) had included a clear statement that Mirkwood was a fantasy novel & that he was using Tolkien as a character, doing things he never did in real life. Pearce didn't make any such statement - because Hillard wants the reader to be under no illusion that the story they are reading is just that - a made up thing. Pearce, on the other hand is attempting to convince the viewer that his made up thing is not made up at all.