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Tolkien Estate Says No Historical Fiction For JRR

Soulskill posted more than 3 years ago | from the do-not-meddle-in-the-affairs-of-greedy-lawyers dept.

Books 337

An anonymous reader writes "Apparently the estate of JRR Tolkien isn't just overprotective of his works, but of himself as well. The estate is in a bit of a legal spat with the author of a fictional work that includes JRR Tolkien as a character, and in part discusses his works. The estate is claiming that this infringes on Tolkien's publicity rights, but if that's the case, would it make almost all 'historical fiction' illegal?"

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337 comments

do-not-meddle-in-the-affairs-of-greedy-offspring (5, Insightful)

intellitech (1912116) | more than 3 years ago | (#35274142)

That's really what it comes down to. The lawyers are just doing the bidding of Tolkien's offspring.

Re:do-not-meddle-in-the-affairs-of-greedy-offsprin (2, Informative)

christurkel (520220) | more than 3 years ago | (#35274298)

Ah you must mean Christopher Tolkien. He's been sucking off the teet of his father for decades.

Re:do-not-meddle-in-the-affairs-of-greedy-offsprin (2, Insightful)

PCM2 (4486) | more than 3 years ago | (#35274518)

You could say that about anyone who inherits his dad's hardware store. It's not as if all Christopher Tolkien has been doing has been firing off lawsuits. In all likelihood nobody would have ever seen The Silmarillion were it not for him. How different would Middle-Earth fandom be then?

Re:do-not-meddle-in-the-affairs-of-greedy-offsprin (2, Insightful)

Anonymous Coward | more than 3 years ago | (#35274738)

You could say that about anyone who inherits his dad's hardware store...

Except the hardware store would need to continue to be well run. Your analogy simply isn't good. The actual truth seems to be that current, over-extended, copyrights are just like family fortunes. In my opinion, wealth should be earned, not entitled. Indeed, I'd postulate that many of the world's problems are rooted in the undeserved transfer of the world's wealth.

Re:do-not-meddle-in-the-affairs-of-greedy-offsprin (2, Insightful)

PCM2 (4486) | more than 3 years ago | (#35275052)

Except the hardware store would need to continue to be well run.

Define "well run"? Christopher Tolkien has published some fifteen volumes of serious Tolkien scholarship, which is more books than J.R.R. himself published in his lifetime.

In my opinion, wealth should be earned, not entitled.

So if your father spends his whole life working his ass off in a coal mine to put food in his children's mouths, then dies of black lung disease when you're fourteen, his savings should all go to the state and your mom should have to go door-to-door looking for a job, huh? What is the incentive to earn wealth if you're not entitled to use it how you wish -- including making your family comfortable? Even Warren Buffett, who is not generally in favor of big inheritances, has said he will leave his children enough money to do whatever they want (just "not nothing").

Re:do-not-meddle-in-the-affairs-of-greedy-offsprin (1)

Culture20 (968837) | more than 3 years ago | (#35274744)

In all likelihood nobody would have ever seen The Silmarillion were it not for him. How different would Middle-Earth fandom be then?

Only a select few would refer to Mithrandir by all his twenty three names.

Re:do-not-meddle-in-the-affairs-of-greedy-offsprin (1)

MightyMartian (840721) | more than 3 years ago | (#35274936)

Please do be more specific about this one.

yes (-1)

Anonymous Coward | more than 3 years ago | (#35274146)

yes

Bill Gate would love that (1)

Anonymous Coward | more than 3 years ago | (#35274152)

To be able to ban the sale of Pirates of the Silicone Valley.

Re:Bill Gate would love that (2, Funny)

Anonymous Coward | more than 3 years ago | (#35274170)

Pirates of the Silicone Valley

Isn't that a porn movie?

Assuming: Pirates of Silicon Valley. And the answer is no. Gates loves that movie, it makes him look like a business genius. Jobs is the one who comes off as a fucktard.

Re:Bill Gate would love that (2, Funny)

Anonymous Coward | more than 3 years ago | (#35274558)

"Jobs is the one who comes off as a fucktard."

So it's historically accurate?

Re:Bill Gate would love that (1)

d0g_solitude (1994870) | more than 3 years ago | (#35274688)

"Jobs is the one who comes off as a fucktard."

So it's historically accurate?

Yes. Because Apple has always lagged behind the market, and has never invented anything original or successful.

Re:Bill Gate would love that (1, Insightful)

Anonymous Coward | more than 3 years ago | (#35274806)

"Jobs is the one who comes off as a fucktard."

So it's historically accurate?

Yes. Because Apple has always lagged behind the market, and has never invented anything original or successful.

Ah yes, They invented the computer, the mp3 player, the portable video player, touch screen phones, and touch screen tablets.

Jobs is as much of a hack as that cough he's got in his cancer ridden throat. But I gotta admit, he knows business, and he caters to idiots.

Re:Bill Gate would love that (1)

domatic (1128127) | more than 3 years ago | (#35274280)

Pirates of "Silicone Valley"? What's that? An I.T. themed porno?

No historical fiction? (3, Interesting)

camperdave (969942) | more than 3 years ago | (#35274178)

No historical fiction? Would that include Irregular things like Web Comics [irregularwebcomic.net] ?

Sorry Public Figure (5, Insightful)

Hangtime (19526) | more than 3 years ago | (#35274192)

Tolkein was/is a public figure, feels like there isn't much to stand on here especially if its fiction and portrayed as such. Seems like this fall well within the fair use realm.

Re:Sorry Public Figure (2)

houstonbofh (602064) | more than 3 years ago | (#35274312)

And publicity for the work they are trying to stop. Fail squared. :)

Re:Sorry Public Figure (1)

westlake (615356) | more than 3 years ago | (#35274986)

Tolkein was/is a public figure

I am not so sure about that.

A public figure is someone who has actively sought, in a given matter of public interest, to influence the resolution of the matter. In addition to the obvious public figure---a government employee, a senator, a presidential candidate---someone may be a limited-purpose public figure. A limited-purpose public figure is one who (a) voluntarily participates in a discussion about a public controversy, and (b) has access to the media to get his or her own view across. One can also be an involuntary limited-purpose public figure --- for example, an air traffic controller on duty at time of fatal crash was held to be an involuntary, limited-purpose public figure, due to his role in a major public occurrence.

Who Is A Public Figure [eff.org]

I don't know how quite how you frame an academic and author like Tolkien as the center of any great "public" controversy or event.

I think you do have a problem if you mimic the distinctive cover designs and typefaces of Tolkien's books. The cynic in me dislikes the notion of using fictionalized biography to shore up your literary criticism.

70 years + is too damn much (5, Insightful)

mbone (558574) | more than 3 years ago | (#35274196)

More evidence that the copyright term is much too long.

Re:70 years + is too damn much (1)

Anonymous Coward | more than 3 years ago | (#35274230)

Thats a problem, not this problem. This is one of fair use.

Re:70 years + is too damn much (4, Insightful)

bieber (998013) | more than 3 years ago | (#35274252)

It's both. This should be legal under fair use and the copyrights should have expired a long, long, long time ago.

Re:70 years + is too damn much (1)

bgalbrecht (920100) | more than 3 years ago | (#35274464)

When Tolkien was alive, the copyright term in the UK (where he was a citizen) was life+50. If they hadn't added another 20 years to the term, his works would still be under copyright until 2024.

Re:70 years + is too damn much (1)

h4rr4r (612664) | more than 3 years ago | (#35274498)

Which does not change that fact that it is too long. If you guarantee someone a paycheck for their own life + 50 you are already reducing their need to produce further works. No amount of future protection will make JRR Tolkien rise from his grave and write more novels.

Re:70 years + is too damn much (4, Interesting)

theVarangian (1948970) | more than 3 years ago | (#35274388)

The estate is claiming that this infringes on Tolkien's publicity rights, but if that's the case, would it make almost all 'historical fiction' illegal?

More evidence that the copyright term is much too long.

The Right of Publicity can be defined simply as the right of an individual to control the commercial use of his or her name, image, likeness or other unequivocal aspects of one's identity.

Maybe I'm missing something really obvious but I was always under the impression that publicity and privacy rights are separate from copyright. This lawsuit is bloody ridiculous and I hope the Tolkien estate loses but as far as I can tell it has very little to do with copyright law.

Re:70 years + is too damn much (2)

h4rr4r (612664) | more than 3 years ago | (#35274442)

This individual is no more, he cannot protect this right anymore than he can rise from the grave and eat brains.

Re:70 years + is too damn much (1)

stephathome (1862868) | more than 3 years ago | (#35274942)

Are you sure? Are you absolutely certain that Tolkien is not in fact a zombie?

Re:70 years + is too damn much (0)

Anonymous Coward | more than 3 years ago | (#35274982)

I was just reading about this, actually. The Right of Publicity is generally considered to be a property right, not a personal right, so it can be inherited.

Re:70 years + is too damn much (3, Interesting)

icebike (68054) | more than 3 years ago | (#35274394)

But this story suggests this is not a copyrights issue, but rather a "publicity rights" issue.

the Tolkien estate, ... alleged that it had a property right to commercially exploit the name and likeness of J.R.R. Tolkien. The estate also alleged that the cover art and typefaces in "Mirkwood" were similar to Tolkien's work to a degree that it would provoke unfair competition.

They are inventing a new right, apparently out of whole cloth, but certainly not based on copyright law.
One can't copyright one's existence, and thereby prevent, say, a biography, a news report, or tabloid coverage.

Privacy + trademark = right of publicity (1)

tepples (727027) | more than 3 years ago | (#35274666)

They are inventing a new right, apparently out of whole cloth, but certainly not based on copyright law.

As I understand it, it's not entirely whole cloth: it comes out of the intersection of privacy and trademark.

Re:70 years + is too damn much (1)

camperdave (969942) | more than 3 years ago | (#35274686)

One can't copyright one's existence, and thereby prevent, say, a biography, a news report, or tabloid coverage.

But what if you write an autobiography? Are you not then a character in your own book, making other biographies a derivative work?

Re:70 years + is too damn much (1)

nbehary (140745) | more than 3 years ago | (#35275004)

One can't copyright one's existence, and thereby prevent, say, a biography, a news report, or tabloid coverage.

But what if you write an autobiography? Are you not then a character in your own book, making other biographies a derivative work?

No. I suppose maybe, if the other biographies were completely based off the autobiography. Even then though, it doesn't work. If they copy word for word it's a copyright violation. Being a non-fiction work, there's really no way to argue derivativeness. In fiction, you can run into using problems using characters and setting. Not in a biography.

It's like saying the first person to write about anything owns any right to write about it.

Re:70 years + is too damn much (2)

phantomfive (622387) | more than 3 years ago | (#35274956)

This isn't a copyright issue. Even if there were no such thing as copyright, this lawsuit would still exist because it's based on a different law, so it is evidence of nothing about copyright.

It's about Right of Publicity [wikipedia.org] . If you're not bored reading my comment yet, it says that no one can commercialize your persona without your permission. This is a good thing: if it didn't exist, Nike wouldn't have to pay Michael Jordan to use his name, and neither would anyone else. Now, it's probably being taken too far here. I don't know of any case where Right of Publicity has been used to keep someone from being used as a character in a book, but then IANAL so whatever.

Weeds Seasons 1-5 DVD Boxset in maxdvdshop.com (-1)

Anonymous Coward | more than 3 years ago | (#35274198)

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Aspect Ratio : 1.78:1

Sound Mix :Dolby Digital

Language :English with removable subtitles

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Director: Jenji Kohan
Screenshots from Weeds Seasons 1-5 DVD Boxset in maxdvdshop.com
http://www.maxdvdshop.com/weeds-seasons-15-dvd-boxset-p-69.html

Re:Weeds Seasons 1-5 DVD Boxset in maxdvdshop.com (2, Funny)

Genda (560240) | more than 3 years ago | (#35274282)

Apparently you misread...
That's "TOLKIEN" not "TOKING"... one involves the manifest results of the epic imbibing of hallucinogenic substances and the other pot. I hope that clears things up.

Name change (4, Interesting)

Spazmania (174582) | more than 3 years ago | (#35274234)

Just change the character's name to R.J.R. Token (Ronald John Token), clearly explain on the cover the Token is a fictional character inspired by J.R.R. Tolkien and then tell the estate to get stuffed.

Re:Name change (1)

jappleng (1805148) | more than 3 years ago | (#35274586)

They shouldn't need to do that, it's a parody and they are free to do as they please if it has no commercial gain. Basically anyone writing fanfic could get sued if this was not possible. Even then, unless there are registered Trademarks and patents involved, it would be hard to make a case even if it were a for-profit parody. $0.02

Re:Name change (0)

Anonymous Coward | more than 3 years ago | (#35275014)

They shouldn't have to.

"The Estate Of" (3, Insightful)

Anonymous Coward | more than 3 years ago | (#35274246)

How come there isn't an Estate of George Washington? Is every dead person entitled to a perpetual corporate entity?

Re:"The Estate Of" (1)

Restil (31903) | more than 3 years ago | (#35274866)

There's a big difference between "filed a suit" and "won a lawsuit for". Until someone follows through to the end and gets this issue more or less written into law, the chilling effect will continue. As far as I know, publicity rights end when you die. You can publish about the dead all you like, and it doesn't become an issue unless you're defaming someone who's currently alive.

-Restil

Re:"The Estate Of" (1)

sltd (1182933) | more than 3 years ago | (#35274908)

Well, Thomas Jefferson has something like that. There's a foundation that's in charge of the historical site (Monticello) that handles all the IP nonsense surrounding the house. Then, a few years ago, his descendants made a huge scandal over whether they were going to recognize the children of Sally Hemmings as "legitimate" descendants. Maybe it isn't exactly the same, but it doesn't seem to be too much of a stretch.

my Tolkien account (4, Insightful)

FuckingNickName (1362625) | more than 3 years ago | (#35274290)

Once upon a time there was this fairly cool guy called JRR Tolkien who wrote some popular books. Then he had some descendants who were leeching cunts. The lawyers on all sides lived happily ever after. The end.

This is OK because it's not fiction, right?

Re:my Tolkien account (2)

icebike (68054) | more than 3 years ago | (#35274408)

Pay up. Fact or fiction isn't the issue.

They are claiming a right to manage their own publicity. I have no idea where they got the idea such a right exists, but according to the summary and TFA, that is exactly what they care claiming.

Re:my Tolkien account (1)

ScentCone (795499) | more than 3 years ago | (#35274522)

They are claiming a right to manage their own publicity. I have no idea where they got the idea such a right exists

The notion of "right to publicity" has ample precedent. It's used every day, and it's why you can't use a picture of Steve Jobs in your own advertisement or product without getting his permission.

Re:my Tolkien account (2)

icebike (68054) | more than 3 years ago | (#35274614)

But you can write a book or an article about Steve Jobs, and you can write w work of fiction that includes Steve Jobs as a central character.
This is done every day of the week.

Re:my Tolkien account (2)

ScentCone (795499) | more than 3 years ago | (#35274838)

I didn't say you couldn't. I was replying to the notion that "right of publicity" was some new concept that Tolkien's estate had synthesized out of whole cloth. It's not. Whether or not it's a good fit in this case is a separate discussion.

Re:my Tolkien account (1)

cHiphead (17854) | more than 3 years ago | (#35274620)

Like hell I can't, ask TMZ not to post a pick of a sickly Steve Jobs with some hookers and we'll see how that stacks up.

Re:my Tolkien account (1)

ScentCone (795499) | more than 3 years ago | (#35274826)

You're (deliberately, I expect) failing to make the distinction between editorial and commercial use of someone's likeness. This stuff is very well established.

Re:my Tolkien account (1, Informative)

PCM2 (4486) | more than 3 years ago | (#35274532)

They are claiming a right to manage their own publicity. I have no idea where they got the idea such a right exists, but according to the summary and TFA, that is exactly what they care claiming.

You can't market a soft drink called Cock-Cola whether you claim it's a parody or not. Also, it's pretty common these days for celebrities to trademark their own names -- Sarah Palin did it the other day. This is all so they can manage their own publicity.

Re:my Tolkien account (1)

h4rr4r (612664) | more than 3 years ago | (#35274676)

Cock-Cola you probably could get away with, since it is another word. Trademarking your name does not protect you from parody or being in the new. For instance I can say Sarah Palin is a moron who should perhaps see if she can get her own daughter to keep her legs shut before suggesting that as a solution to teen pregnancy.

Re:my Tolkien account (2)

PCM2 (4486) | more than 3 years ago | (#35274728)

You could probably get away with making a picture of a can of Cock-Cola, but I guarantee you could not sell an actual can of soda with that name, especially if you modeled the trade dress after Coca-Cola. Ceci n'est pas une pipe, but whether you call it a parody or not, that can really is a can of soda, and that's what Coca-Cola's trademark protects. (And, actually, I'm sure they've filed trademarks protecting a variety of other uses.)

In the other case, yes, you could say Sarah Palin is a moron. What you could not do, though, is follow her around to all her various public appearances, observe what she orders for lunch, then publish The Sarah Palin Cookbook.

Re:my Tolkien account (1)

JonySuede (1908576) | more than 3 years ago | (#35274836)

What if you call it The unauthorized Sarah Palin cockbook ?

Re:my Tolkien account (1)

JonySuede (1908576) | more than 3 years ago | (#35274902)

euh, I meant cookbook, damm you cock-cola !

Re:my Tolkien account (1)

Culture20 (968837) | more than 3 years ago | (#35274860)

Cock-Cola you probably could get away with, since it is another word.

You'e mad, Wongberger! That would never fly!

Re:my Tolkien account (1)

Charliemopps (1157495) | more than 3 years ago | (#35274842)

Well, I'd almost agree with you... BUT... The Tolkien estate sat on the rights to make a Lord of the Rings movie for decades. They were approached many times and turned it down many times. When they finally got the offer they accepted it really was the best telling of the story they could have gotten short of a huge 10 part series on HBO or something. You can argue weather or not you like the movies, but they turned down a lot of offers that really wouldn't have done the books justice but would have made them a lot of money... and there was no guarantee they'd ever get the offer they did. Up until it really happened I'd have doubted it would have ever gotten made.

Re:my Tolkien account (1)

nonguru (1777998) | more than 3 years ago | (#35274938)

That statement is grossly inaccurate. I think you'll find with a little checking that JRR Tolkien's sold the rights to the film over 40 years ago to settle a tax debt. The only thing the family have turned down is the opportunity to participate in the development or production (however they are happy to reap royalties based on the film). They have no control over any film rights associated with his writings and haven't had for decades.

Re:my Tolkien account (5, Insightful)

Darkness404 (1287218) | more than 3 years ago | (#35275010)

Except for the fact that there should be no Tolkien estate owning the rights to it. The idea that someone's heirs can say what you can and can't do with a piece of fiction written over 55 years ago written by someone who died 38 years ago is ridiculous. Copyright needs to be much, much, much more limited. When you look at the history of literature, all of it has been shaped through remixing and reusing ideas and stories of those who wrote before.

I'd like to see the original complaint (4, Informative)

PCM2 (4486) | more than 3 years ago | (#35274306)

The Scribd document contains the text of Hilliard's court filing, but not what the Tolkien Estate said in its original cease-and-desist letter. It says it includes a copy of the Tolkien Estate's letter as Exhibit B, but there is no Exhibit B in the Scribd document. Until we can see the original language used in the cease-and-desist, it's hard to say whether there might be any valid complaint there. I get the gist of line 17 of this document, which amounts to "I can say whatever I want because of the First Amendment," but that's not strictly true, and it's usually a bad idea to go straight for the Constitution as your first line of defense. Case law could easily support the Tolkien Estate's position.

I'm sure there will be countless posts about the evils of intellectual property law, but I, for one, see no reason why this complaint and counter-complaint should not be weighed in the courts.

Re:I'd like to see the original complaint (3, Informative)

shutdown -p now (807394) | more than 3 years ago | (#35274322)

I wouldn't really be surprised about any such claims coming from Tolkien Estate specifically - anyone who is seriously involved in fandom around Tolkien's works knows how litigious they can be, and how insane [theregister.co.uk] their demands often sound.

Re:I'd like to see the original complaint (2, Interesting)

PCM2 (4486) | more than 3 years ago | (#35274472)

Actually, your link talks about a lawsuit filed not by the Tolkien Estate, but by the companies that own the film rights to the books. That certainly seems like a stretch.

But what the lawsuit in TFA is about is the Tolkien Estate's claim that it owns publicity rights to Tolkien's name. To what extent is that true? I don't know. I mean, imagine: Say your father died a few years ago, and someone who lived up the street from you when you were a kid writes a novel in which your father is a character, and your father is portrayed as a pedophile and serial rapist. You argue that this is a complete fabrication, but the author shrugs and says, "What can I say, it's fiction. I'm exploring the ramifications for the neighborhood if your father had been a rapist. Obviously people shouldn't take this as a work of scholarship." Wouldn't you at least wish you had some recourse to stop publication of that book? Do you have recourse? Again, I don't know. Is it more ambiguous for Tolkien because he's a public figure -- or does that mean the case is more clear-cut, and that his estate has the right to control how he's portrayed in media? Would Hilliard's book really have been published if the Lord of the Rings wasn't such a hot property these days? And if not, then isn't Hilliard capitalizing on Tolkien's legacy financially? I think there are issues worth arguing here.

Re:I'd like to see the original complaint (1)

VAElynx (2001046) | more than 3 years ago | (#35274760)

No matter what the use, this is still invalid. As long as you of course include the remark that it is a product of fiction, any use of real characters within art should be perfectly OK Or you think Stalin's grandson should sue the arse off Westwood Studios for producing C&C series?

Parody is protected, at least in the US (1)

Anonymous Coward | more than 3 years ago | (#35274316)

Parody is protected, so just make Tolkin, Toking, and turn him into an old doobie smoking proto-hippie.

Re:Parody is protected, at least in the US (0)

Anonymous Coward | more than 3 years ago | (#35274752)

Slander is not. The court will have to decide whether making up fictions about the real author [hollywoodreporter.com] deserves the legal protections granted for literary critique, parody and the like.

Stephen Hilliard is going to court in an attempt to release "Mirkwood, A Novel About J.R.R. Tolkien," to be published by Cruel Rune. The 450-page book is described as taking place from 1970 through near-present day in the United States and features six characters -- five fictional and Tolkien himself. "Mirkwood" is portrayed as both a piece of fiction as well as an exercise in "literary criticism."

Maybe you can already tell, in my opinion, historical fiction is idiotic. Honest people try to be clear about whether we're talking about real, factual events or about fiction. Hilliard seems to be trying to do the opposite. The purpose of the First Amendment is to protect political speech, particularly criticism of the government. Telling lies about others then hiding behind "freedom of speech" is not what the Founders meant.

Re:Parody is protected, at least in the US (1)

ColdWetDog (752185) | more than 3 years ago | (#35274934)

Parody is protected, so just make Tolkin, Toking, and turn him into an old doobie smoking proto-hippie.

Been There. Done That. [amazon.com]

Oh no, not my erotic fan fiction! (4, Funny)

Jailbrekr (73837) | more than 3 years ago | (#35274318)

Eyeing the half dead orc, J R R Tolkien discreetly scanned the surrounding for those who might be watching. Once satisfied that the two were alone, he made quick work of his pants. Mounting the orcs lacerated leg, Tolkien muttered "Oh yes, my precious, your leg shall be mine. Oh yes". The orc said nothing and simply stared in quiet horror. His eyes said everything that could possibly be said.

Re:Oh no, not my erotic fan fiction! (1, Funny)

GuruBuckaroo (833982) | more than 3 years ago | (#35274328)

Where's my '+1 Arousing' mod?

Re:Oh no, not my erotic fan fiction! (0)

Anonymous Coward | more than 3 years ago | (#35274538)

In my pants!

Re:Oh no, not my erotic fan fiction! (2)

SCPRedMage (838040) | more than 3 years ago | (#35274554)

Probably right next to my '-1 Vomiting' mod...

Meh, it's okay... (1)

Anonymous Coward | more than 3 years ago | (#35274616)

...Honestly, it'd be better if you had Tolkien singing a Hobbit-esque song as he goes about his business of Orc rapin'.

Re:Oh no, not my erotic fan fiction! (1)

identity0 (77976) | more than 3 years ago | (#35274828)

I think I preferred the Tolkien/CS Lewis slash fiction.

Kids these days gore up everything, it's because of 4chan isn't it?

Dead people have publicity rights??? (2)

sribe (304414) | more than 3 years ago | (#35274382)

Seriously, do they? I never knew that. I never knew that publicity rights could be inherited. Maybe I'm wrong, or maybe the estate is 100% full of it and thought they could pick on some who would just give up immediately.

Seriously, according to the article this is not about copyright, which does persist after death and can be inherited. Publicity rights? Good grief...

Re:Dead people have publicity rights??? (2)

PCM2 (4486) | more than 3 years ago | (#35274670)

So I can make movies with a digitally-simulated model of James Dean as my lead actor, and nobody has any say in the matter? Or forget movies: TV commercials, that's where the real cash is.

Re:Dead people have publicity rights??? (2)

vgerclover (1186893) | more than 3 years ago | (#35274834)

Ahem... [youtube.com]

Re:Dead people have publicity rights??? (3, Informative)

PCM2 (4486) | more than 3 years ago | (#35274914)

You make my point perfectly. Pause the video right at the very beginning. You'll see text at the bottom stating not only that "Gene Kelly" is a trademark, but that the images are copyright the Gene Kelly Image Trust. If Gene Kelly's estate wanted to put the kibosh on the whole project, it could have.

Re:Dead people have publicity rights??? (1)

h4rr4r (612664) | more than 3 years ago | (#35274840)

Why not?

He is dead, he cannot be harmed by your actions.

Re:Dead people have publicity rights??? (1, Insightful)

PCM2 (4486) | more than 3 years ago | (#35274944)

He is dead, he cannot be harmed by your actions.

No? What if it was commercials of a computer-simulated Martin Luther King, urging everyone to vote Republican?

What if it was a porno featuring Marilyn Monroe doing a "2 boys 1 cup" with Bobby and JFK? Should none of their families and loved ones have any say in the matter?

Are we ghouls, that we can exhume the bodies of the dead for whatever purpose we choose? Do historical figures have no right to their own legacy at all?

Re:Dead people have publicity rights??? (1)

C0R1D4N (970153) | more than 3 years ago | (#35274918)

I suppose if you want to inspire mass boycotts of your product and strikes by SAG who'll refuse to work on shows sponsored by you.

Re:Dead people have publicity rights??? (1)

Anonymous Coward | more than 3 years ago | (#35274782)

Seriously, do they? I never knew that. I never knew that publicity rights could be inherited. Maybe I'm wrong, or maybe the estate is 100% full of it and thought they could pick on some who would just give up immediately.

Seriously, according to the article this is not about copyright, which does persist after death and can be inherited. Publicity rights? Good grief...

Are you a lawyer? Do you specialize in this kind of law? If so, then you should probably get some education about being incompetent. If not, then maybe you should not be surprised at your ignorance, and work to correct it rather than get exasperated.

Or just ask you this, imagine you have a family member who dies. Do you want somebody making money off of their identity? Maybe you do, but many people don't.

Re:Dead people have publicity rights??? (0)

Anonymous Coward | more than 3 years ago | (#35274906)

Are you a lawyer? Do you specialize in this kind of law? If so, then you should probably get some education about being incompetent. If not, then maybe you should not be surprised at your ignorance, and work to correct it rather than get exasperated.

Or just ask you this, imagine you have a family member who dies. Do you want somebody making money off of their identity? Maybe you do, but many people don't.

I'm not the original poster but wanted to respond (mostly because it applies so specifically to me). My daughter was murdered in 2006 and as a result I'm now in law school (in my last semester) and am focusing on IP issues.

Unfortunately most States don't prohibit the use of a dead person's name / image / etc. It's only while the person is still alive that the Courts (or actually the Legislatures) care about their rights to privacy. Arguably, living relatives could claim that they have privacy rights - to include not having to contend with the trauma of their dead loved ones being used for commercial purposes by some asshats - and that those rights are being infringed upon but that's not a slam-dunk argument.

California is pretty unique in that they do offer statutory protection but it's only for deceased "personalities" - not your everyday dead person. The rationale is that it's to protect the commercial interest that the Estate has in the dead personality. Pretty crappy if you ask me - our society does not treat the dead (especially victims) well at all. I guess they need to start voting!

Anyway - just wanted to add my two cents - I agree that we (as a society) should have some degree of control over how and when we're confronted with our deceased loved ones but unfortunately our legislatures don't appear to agree; as a result it's often allowed.

Heaven's War: Another work featuring Tolkien (0)

Anonymous Coward | more than 3 years ago | (#35274390)

It's a fun comic book about the usual good vs evil stuff, kinda.

Tolkien is not a central character in it, but he's definitely in there, on the side of all that is Good too.

You can check out the reviews at http://www.amazon.com/Heavens-War-Micah-Harris/dp/1582403309 to get a feel for it.

I can't wait until (0)

Anonymous Coward | more than 3 years ago | (#35274404)

Someone makes an "Untergang" of Hitler denouncing these leeches.

'historical fiction' ? (1)

lbalbalba (526209) | more than 3 years ago | (#35274454)

Well, I hate to inflame on me the hate of all Slash.dot posters.. But ... Shouldn't all 'historical fiction' at least require the permission of the persons involved (or the people/institution representing that person) ? I mean, what makes you think that *you* have the right to include 'real' people into your fake fictional works ? Really ?

Re:'historical fiction' ? (0)

Anonymous Coward | more than 3 years ago | (#35274674)

Fine.
The next time one of the Rambo/Red Dawn-sort of US movies will come out, have the directors get a permission from the Communist Party of Russian Federation.
Because, like, the CPSU (and its descendants) can manage their own publicity.

Re:'historical fiction' ? (1)

lbalbalba (526209) | more than 3 years ago | (#35274700)

Fine. The next time one of the Rambo/Red Dawn-sort of US movies will come out, have the directors get a permission from the Communist Party of Russian Federation. Because, like, the CPSU (and its descendants) can manage their own publicity.

I have absolutely no problems whatsoever with 'factual' works... Just with 'fictional/imaginary' works ... Just saying ...

Re:'historical fiction' ? (0)

Anonymous Coward | more than 3 years ago | (#35274820)

Errr, Rambo wasn't a documentary film you know....

Re:'historical fiction' ? (1)

timeOday (582209) | more than 3 years ago | (#35274732)

I mean, what makes you think that *you* have the right to include 'real' people into your fake fictional works?

What makes me think I have the write to arrange some letters from the alphabet in a certain way? The audacity!

Surely the burden of proof is on those who want to restrict such rights.

Re:'historical fiction' ? (1)

lbalbalba (526209) | more than 3 years ago | (#35274762)

Surely the burden of proof is on those who want to restrict such rights.

Hahahaha! No. If you dream up fictional stuff on someone/something, and pretend that it is 'factual', then the burden of proof of that is on you, pal.

Re:'historical fiction' ? (1)

h4rr4r (612664) | more than 3 years ago | (#35274898)

Not one is pretending it is factual. Besides I can say anything I want about anyone, they then must prove I should not be allowed to say it, via slander or other laws.

Re:'historical fiction' ? (2)

ReedYoung (1282222) | more than 3 years ago | (#35274862)

I mean, what makes you think that *you* have the right to include 'real' people into your fake fictional works ?

Indeed. Mixing fact and fiction is quaintly known in civilized societies as lying. Making up a genre called "historical fiction" doesn't change the simple fact that Hilliard is being dishonest -- saying things about a real person that he knows are untrue. If his sincere intent was "literary criticism [hollywoodreporter.com] " as his lawyers now claim, then he would have written an essay, not a novel. They're entirely different categories of prose and I hope the court can appreciate that "fictionalizing" events of real people's lives is not literary critique, it's literally lying. And if any of the made-up events are in any way insulting, it's slander.

Re:'historical fiction' ? (1)

h4rr4r (612664) | more than 3 years ago | (#35274876)

What makes you think you have the right to control what I put in my fictional works?

Just then Lincoln shot big bird with his ray gun and all the children were covered in a shower of feathers and candy.

Why should I not be allowed to write the above?

You ARE allowed to write the above. (1)

ReedYoung (1282222) | more than 3 years ago | (#35274940)

That's too absurd to be mistaken for a real event. The problem is with writing untrue things that could reasonably be interpreted as assertions of fact.

Am I a character of my own creation? (1)

Fractal Dice (696349) | more than 3 years ago | (#35274584)

It would feel odd if my real life character had less legal protection than a fictional character I create.

Re:Am I a character of my own creation? (1)

lbalbalba (526209) | more than 3 years ago | (#35274600)

It would feel odd if my real life character had less legal protection than a fictional character I create.

A 100 % percent agreed...

How about? (1)

no-body (127863) | more than 3 years ago | (#35274590)

If patent- and copy rights would just end with the originator of the work - if s/he dies, all becomes public domain.

It sure would drive innovation and what are heirs/patent-right owners actually contributing? They just rub their hands - how lucky I am to have this ancestor or made the investment.

Dreaming on...

Re:How about? (0)

Anonymous Coward | more than 3 years ago | (#35274996)

what a cool world that would be - just kill that guy who is in your way with his patent or copyright, and the deal is done!

That would lead to a lot of assassinations. (1)

ReedYoung (1282222) | more than 3 years ago | (#35275018)

BP for example would immediately hire assassins to murder all clean energy researchers. http://hardware.slashdot.org/story/11/02/19/1555243/Oil-Companies-Patent-Trolling-Biofuel-Production [slashdot.org] But I do appreciate the basic sentiment, that one accomplishment should not become a perpetual free ride. I would just err on the side of protecting the rights of individual innovators against work that could be slanderous, or laws that make murder a good investment.

How about, only individual humans can own intellectual property, not corporations or any other collectives? I think corporate "intellectual" property is a much more important problem than squabbles among artists of various kinds.

You should try it (1)

gmuslera (3436) | more than 3 years ago | (#35274642)

worked for Mark Twain in Riverworld, even if is science fiction instead of historic one. And, btw, Tolkien should had been around there too.

I have no sympathy for Hilliard (1, Insightful)

Anonymous Coward | more than 3 years ago | (#35274664)

From the Hollywood Reporter article [hollywoodreporter.com] :

Stephen Hilliard is going to court in an attempt to release "Mirkwood, A Novel About J.R.R. Tolkien," to be published by Cruel Rune. The 450-page book is described as taking place from 1970 through near-present day in the United States and features six characters -- five fictional and Tolkien himself. "Mirkwood" is portrayed as both a piece of fiction as well as an exercise in "literary criticism." Hilliard hints that the book will take issue with the lack of female characters in Tolkien's works, including "The Hobbit" and "The Lord of the Rings" series.

If you want to do literary criticism then critique the actual literature. Wannabes write "historical fiction" when they want to make a quick couple million slandering the name of somebody who earned his fame.

Not the first author (0)

Anonymous Coward | more than 3 years ago | (#35274718)

Salinger's people threatened to sue over his name use in Field of Dreams. Salinger was a character in the book Shoeless Joe but the name was changed to Terrence Mann for the movie. http://njjewishnews.com/kaplanskorner/2010/01/29/j-d-salinger-terence-mann-and-field-of-dreams/

California Civil Code: Deceased Personalities (4, Informative)

Anonymous Coward | more than 3 years ago | (#35274776)

  In addition to trademark and unfair competition issues the complaint includes: "(t)he Estate claims that it holds the rights of publicity to exclude others from the use of the name and personality of J.R.R. Tolkien in a fictional novel, and those rights include the right to preclude Hillard from authoring and Cruel Rune from publishing Mirkwood."

California has an unusually strong statute for "deceased personalities": California Civil Code Section 990 Deceased Personality's Name, Voice, Signature, Photograph, or Likeness in Advertising or Soliciting [findlaw.com]

Although it prohibits some commercial uses of a "deceased personality" there's an exception for "(a) play, book, magazine, newspaper, musical composition, film, radio or television program, other than an advertisement or commercial announcement ... " [emphasis added] From the complaint it's not clear what their argument is then re. "the rights of publicity" referred to in the complaint ...

IANAL

hi how re you (0)

Anonymous Coward | more than 3 years ago | (#35274804)

thank you for information

Google reklamlar [ortadogureklam.com]

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