The author and publisher of a book in which JRR Tolkien appears as a character has filed a lawsuit in federal court asking for a declaration from the court that it doesn’t need permission from the estate to produce the novel.
According to the plaintiffs’ complaint for declaratory judgment (PDF) filed in the Western District of Texas, last month the estate sent a cease and desist letter asserting that it and it alone has the “property right to commercially exploit the name and likeness” of Tolkien; in legal jargon, these are commonly known as “publicity rights.” The estate asked that the author stop publishing the books, destroy all copies that exist, and pay damages.
In response, the author and publisher have turned to a federal district court for clarity on the issue, hoping to preempt a lawsuit by the estate and asking the court to tell the estate that its permission is not necessary for the publication of the book.
The novel in question is Mirkwood by Stephen Hillard and published by Cruel Rune LLC, It features six characters, one of whom is Tolkien; the other five are fictional. The plaintiffs note that the title page explicitly states that the book is a work of fiction and that “[a]ny resemblance to actual persons, living or dead, events or locales, save those allowed by fair use, is entirely coincidental.” The book is also presented as a critical analysis of some of Tolkien’s works such as The Lord of the Rings series and The Hobbit.
In support of their position, the plaintiffs point to several other books who have featured real people in fictional accounts, including Virginia Woolf in Michael Cunningham’s The Hours and Lee Harvey Oswald in Don DeLillo’s Libra. Indeed, note the plaintiffs, Tolkien himself has appeared as a character in previous novels Here There Be Dragons by James Owen and Looking for the King – An Inklings Novel by David Downing.
The estate of Tolkien also had an issue with the cover art of the book, which “depicts a scene of multiple trees dominated by a single tree illuminated by rays of light towering over three unidentified characters seen from behind.” According to the plaintiff’s complaint, a standard font is used for the M, R, and O of the title as well as for the author’s name and the phrase “A Novel About JRR Tolkien” while the other letters of Mirkwood “are of a nonstandard font not taken from any J.R.R. Tolkien work.”
The estate asserts that the cover “resembles the style of the cover art, typefaces and overall get-up” of J.R.R. Tolkien’s work so much that it would create unfair competition.
What do you think about such a fictional portrayal of a real person? Is this novel a violation of the publicity rights of Tolkien, who has been deceased for nearly 40 years?