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Are there more Tolkiens on this lawsuit than elves in Middle Earth?

j.r.r. tolkienlos angeles timesnew line cinemaopinion l.a.

Larry Lessig had a fascinating copyright idea in the other Times a while back, which gives an interesting perspective on this L.A. Times story about J.R.R. Tolkien's descendants' fight for some of the gross on the New Line Cinema "Lord of the Rings" adaptations. Writes Rachel Abramowitz:

Tolkien obviously isn't Peter Jackson, who directed the franchise, or Liv Tyler or Viggo Mortensen, who starred in it, or New Line Cinema, the studio that financed it, or Miramax, which owned the film rights for a second but couldn't get the movie made, or producer Saul Zaentz, who bought the rights in 1976. He's just the guy who dreamed up the cosmology, the whole shebang of hobbits and dwarfs, orcs, ents, wargs, trolls, whatnot. "Three rings for the Elven-kings under the sky, Seven for the Dwarf-Lords in their halls of stone, Nine for Mortal Men doomed to die, One for the Dark Lord on his dark throne." Those were old John Ronald Reuel Tolkien's words.

But he's dead, so why should Hollywood share any of the dough?

In reference to a far less lucrative literary franchise, here's a good reason why not.

I realize this puts me at odds not only with the Times but with the EU, Her Majesty and the U.S. Congress. But I find it offensive to common sense to argue that the heirs of J.R.R. Tolkien (who are as dismayingly numerous as Kennedys in the court filing) are entitled to a shilling for work in which they had no hand and which was completed in 1949.

I'm not evaluating the legal merits of their case, the questionable management of New Line Cinema, or the Tolkiens' contractual rights under a contract that was signed with United Artists in 1969 and passed to New Line (and now to Warner Bros.) by way of Zaentz and Miramax. (Though with these dramatis personnae, it's amazing there's a plug nickel left to fight over.) I am saying current copyright law is well outside the bounds of rationality. There should be no fight over rights on the literary property because on a logical planet, a 59-year-old literary property by a 35-years-dead author would be in the public domain.

Now to Larry Lessig, who proposed a seemingly rational solution back in May:

Following the model of patent law, Congress should require a copyright owner to register a work after an initial and generous term of automatic and full protection.

For 14 years, a copyright owner would need to do nothing to receive the full protection of copyright law. But after 14 years, to receive full protection, the owner would have to take the minimal step of registering the work with an approved, privately managed and competitive registry, and of paying the copyright office $1.

It's not clear how the Tolkien case would play out under this regime. "The Lord of the Rings," as I have heard the story, didn't hit its full popular stride (or is that schritt?) until the 1960s, and it's possible that the author, preoccupied with the commercial potential of "Smith of Wooten Major" or "Farmer Giles of Ham," might have neglected to do the necessary update. Interestingly this would probably have had the effect (all else being equal) of reducing the specific take for Peter Jackson's movies, because they would have been competing with dozens or scores of previous adaptations, not just Ralph Bakshi's.

But more likely, Lessig's proposal would merely move these sorts of battles a few years into the future. I don't see any way around the central problem: Copyright term is simply too long. It needs to be dated for some reasonable period from the date of creation (I've previously said 35 years, so I'll stick with that figure), and then it needs to end. If you're the author or the author's estate, you can keep trying to use your goodwill and/or familiarity with the franchise to keep making money on it, but you've got to fight for it like everybody else.

Which, ironically, Tolkien's heirs have proven quite capable of doing. Back when Peter Jackson was known mostly for "Heavenly Creatures" (his true masterpiece), here's how my old friend Tom Spurgeon described Christopher Tolkien's place in the universe of lucky inheritors:

The Caretaker

Caretakers are all about access. Their basic strategy is to place themselves between a beloved creation and a still-rabid audience and claim their involvement is an extension of the creator's wishes — even if the nature of those desires must be inferred from beyond the grave. Once duly recognized as a keeper of the flame, the caretaker can dispense missives from the promised land with the measured touch of a Mr. Bumble. The perfect situation for the caretaker is to be placed in charge of an open-ended franchise targeted at anal completists. Christopher Tolkien and Brian Herbert are exemplars of this type, with multi-volume releases of first drafts or brand-new novels taken, cross-their-hearts, from papa's real, honest, left-behind notes. If criticized as a profiteer, the caretaker emphasizes his or her connection to the successful parent's life work, particularly if it ends up in a deal for a project celebrating the parent-child relationship, such as a suite of fairy stories or album of lullabies. While embracing the parent's vision is the most reliable way to pursue strategy, offering complementary skills necessary to maintain that legacy can be just as effective. Hugh Hefner popularized the Playboy philosophy by living it; Christy Hefner helped legitimize it because she didn't.

So buy your advance tickets to Ang Lee's "The Silmarillion" now!

Crossposted at Jon Healey's Bit Player.


Comments () | Archives (4)

The comments to this entry are closed.

John Green

"I find it offensive to common sense to argue that the heirs of [a creative work] are entitled to a shilling for work in which they had no hand."

How do you feel about heirs to hotel empires, real estate magnates, and the like? Here are people who can have something they had no hand in creating willed to them, and they can will it to their heirs, and on and on. It can become their families legacy for generations.

If someone who created a fantasy land out of their imagination must give that land over to the people after a set amount of time, why does someone who acquired physical land they had no hand in creating get to keep it in perpetuity?

Tim Cavanaugh

Because physical property exists in physical space and can be passed along. Intellectual property doesn't and can't, and copyright is a legal-fiction monopoly that was invented to give the creator some ability to profit from his or her creation over a brief period of time. If Tolkien had started a middle earth theme park, or a chain of Hobbithole hotels, or a Tolkien merchandise corporation, his heirs would be free to pass that property along, down to the last generation. As it is, they have a Tolkien trust that they can continue to run and try to profit from.

Greg G

Copyright needs to extend 27 years or so past the death of a author/copyright holder to protect his/her children/heirs and then go to public domain, balance between public rights and individual rights.. All the rest of this diatribe is CAA CAA

Sean Peele

While the specific Tolkien Trust lawsuit referenced here appears to be addressing valid and legitimate claims that have not been honored, I hardly think that this is an appropriate springboard to lambast the Tolkien estate for pursuing what is their "inheritance." Physical or not, Middle Earth and everything that came with it started with someone who created the idea - in this case Christopher Tolkien's father. Without J.R.R. Tolkien there would not have been any Lord Of The Rings. This is a simple fact. Without the original idea, there would be nothing to protect. A published work, that subsequently led to a granting of movie rights from the creator of that work, while he was still alive, in exchange for what was considered acceptable terms to that creator, regardless of how many times it may have been sold, transferred etc. and is still a valid contract, is still a published work.

"Intellectual Property" is still something that exists, and the persons appointed to protect that, related or not, should have a right to protect it in whatever manner they see fit. If Tolkien was my father and left me the responsibility of caring for his estate, by means of inheritance, will, and verbal instruction while he was still alive, I would, as his son, want to honor that legacy to the best of my ability. To propose that the Tolkien Estate shouldn't have a red cent because of the age of the work the movies were based on is a flimsy argument towards the types of copyright freedoms you seem to endorse - where it is only appropriate to protect a person's creative efforts until they die or their right to control how their creative efforts are used "expires" and then fall into public domain, where anyone can use or misuse your ideas and you could do nothing about it, is the equivalent of saying that taking credit for your own work and being able to protect it's integrity, much less make a living off of it that you can pass on is somehow shameful and wrong. That just isn't an adequate argument, I don't care what color you paint it, or whatever spin you throw on it. If someone published your blog against your permission and then profited from it, you should be able to claim what is rightfully yours. If you truly believed in the idea you are promoting, you really should have no right to collect any kind of salary from your writing, much less be able to control what other people do with it, whether you were alive or not. You should be working for free, and your family should have to fend for themselves while you waste your life on a newspaper blog, as there is really no reason they should ever expect your work to support even you.

Try substituting the ideas of freedom, justice, or truth (which are not physical yet still exist) in place of the idea of an intellectual property and you will see how quickly your argument loses steam. Try not to lose sight of the fact that the country you are lucky to live in, where you have protections that enable you to have access to freedom, justice, and truth, was founded on honoring certain guiding principles, where a person like you can do or say as you like, and is entitled to whatever fair reward comes your way for doing so, and that country's laws are there to protect YOU as a citizen of that country.

Copyright law is there to protect the creator, plain and simple. The minute the protection disappears is when it becomes a free for all sort of collective creative anarchy, where there are truly no gains for anyone. The last time I checked, fair is fair. If you want to abandon that, go right ahead, but don't cut down those who choose to defend that right in an effort to legitimize your argument. Try coming up with a legitimate argument first, and then come up with legitimate reasons to defend it. I am sure you will gain more ground in your efforts, and might even be surprised to find that other people would be willing to support you, provided your argument was good enough.

The least you should get is a pat on the back for trying.



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