Tolkien Estate In Legal Spat With Author Of Historical Fiction; Will Publicity Rights Kill Off Historical Fiction?
from the overprotective dept
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.