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