Christopher Tolkien at it again....

[The Squatter of Amon Rûdh]

I don't suppose that Christopher Tolkien, or any other trustee of the Tolkien Estate, actually reads everything that mentions even his own name, let alone JRRT's. The trustees leave that to the Estate's legal representatives (Manches of Oxford, I believe), whose advice I expect they follow in most cases.

Now, the basis of davem's annoyance seems to be that the Tolkien Estate can and does rigidly control the production and dissemination of all material by and closely related to J.R.R. Tolkien, including his image, languages and, apparently, favourite typefaces. I can't really blame them for wanting to do this, and to be honest I can't really fault the law for allowing them to do so. The point of libel laws is to prevent people from disseminating false written reports of our personalities and conduct, and the Tolkien estate is trying, by controlling the use of Tolkien's image, to maintain that protection for JRRT posthumously as I should like to do for my own family. It shouldn't be enough to transplant the false report into a loosely fictional environment and claim artistic freedom. As for controlling the use of material produced by JRRT, well that's nice and simple. JRRT isn't around to exercise that control, but the copyright still exists, legally in the hands of his heirs and successors. If there were no protection of copyright, publishers could simply take manuscripts they were sent, print them commercially and keep all of the profits. The authors would have to be content to see their names in print, while somebody else made a fortune from their work. In fact, it was something of this nature that started the whole Tolkien legal odyssey in the first place: I'm sure we've all heard of Ace Paperbacks. The basic principle seems to be that the Estate doesn't want to see people making money out of JRRT's name, image and ideas unless they get a cut of the profits and the project is one that they consider appropriate. If that means that I don't see (for whatever unfathomable reason) the verse Beowulf, then at least it also means that I won't have to read about a fist-fight in Balliol Quad between Tolkien and F.R. Leavis or Tolkien as the leader of an underground fascist group. Robot Tolkien would, I'm sure, be a great loss to us all, but I scarcely think that Manches are going to trouble themselves with him.

Since this work is to be published in the United States, U.S. law will apply rather than British, which I suppose is good news for those who like their literary criticism to be fictionalised. The Tolkien Estate would have far greater powers to prevent me from publishing works including Tolkien as a character. I'm not sure that I'd be happy doing that anyway: I didn't know him, and a fictonalised version of someone runs too great a risk of creating a new and inaccurate public perception of that person. Perhaps that is why the Estate is so keen to suppress such a use of JRRT, although I notice that the publication of Here There Be Dragons has gone ahead without their interference, and that a film is planned.

As for blurring the lines between fiction and reality, literary criticism and literature itself, well it's all a bit too much like playing to the gallery for my liking. There's nothing particularly groundbreaking in it - Tolkien's relative paucity of female characters was the subject of many early negative reviews, and I'm sure we must be into post-post-modernism at least by now. Such an approach runs the risk of creating poor criticism that is also dull literature, and failing to please even its own tiny target audience. Perhaps without the controversy of an attempted ban we'd be looking at yet another forgettable book in a long tradition of forgettable books.

[Anguirel]

Originally Posted by The Squatter of Amon Rûdh

If that means that I don't see (for whatever unfathomable reason) the verse Beowulf, then at least it also means that I won't have to read about a fist-fight in Balliol Quad between Tolkien and F.R. Leavis or Tolkien as the leader of an underground fascist group.

... although I notice that the publication of Here There Be Dragons has gone ahead without their interference, and that a film is planned.

Well, I would very much like to read about that fist-fight, although I reckon William Empson would definitely have emerged victorious...

I'd never heard of the work you just cited; have wikied, and it looks quite similar to this Mirkwood thing, but plus better book jokes and King Arthur; is it worth a look?

[The Squatter of Amon Rûdh]

Originally Posted by Anguirel

I'd never heard of the work you just cited; have wikied, and it looks quite similar to this Mirkwood thing, but plus better book jokes and King Arthur; is it worth a look?

I have no idea, never having read it. Having read that synopsis, though, I expect that I will eventually.

[davem]

Perhaps the reason the Estate went for MirkWood & not 'Here there be Dragons' is that Mirkwood was self published & HTBD is published by Simon & Schuster (owned by CBS & one of the biggest publishers in the world). I suspect they knew S&S would stand up to them but expected Hillard to back down.

[The Squatter of Amon Rûdh]

Would you apply that same principle to the Estates of individuals you didn't like - should the heirs of Richard Nixon, Saddam Hussain or Myra Hindley have the right to prevent them being depicted in drama/drama-docs in ways that they didn't like?

Technically I can neither like or dislike any of those people, since I've never met them. Whether I approve of them or not doesn't change my distaste for misleading historical fiction about them. It would be easy, for example, to write a story in which Myra Hindley explains why she committed her crimes. It would be easy to have Saddam Hussein be forced to explain himself to the family of a murdered political dissident, but in the end those stories would have no real value, because they would reflect what the author would like those people to be, or wants the audience to think they were, rather than reality; whilst giving the appearance of reality by the use of real names and personas. Reality is always more challenging, and ultimately more beneficial to the observer, which is why the best historical fiction avoids painting too detailed a picture of any real figure. Even the Flashman books, which are deliberately outrageous, are based on solid research into all of the events and (long dead) characters portrayed, not just what George Macdonald Frazer thought would suit his purpose. If you use real people and events in a story you have a duty to them not to show them doing and saying things that they would never have done or said - you can't have Cecil Rhodes condemning imperialism, for example, or Richard the Lionheart extolling the virtues of England. One of the great advantages of history is that the events of the past have no overriding purpose or message; the facts seldom support any one view, and they make no account of sensibility or taste. The very nature of fictional writing ensures that it embodies one person's beliefs and opinions, and the very events bear out those opinions. To present the latter as the former is to present the author's opinions as historical reality, which is profoundly dishonest.

Not really - what the Estate were attempting to do was prevent the use of a historical figure (JRR Tolkien) in a fictional work. If that is not to be allowed then you effectively end both historical fiction which uses real people as characters (ie everything from WWII novels which depict Churchill or a recent Doctor Who episode which featured Richard Nixon, & the like, would not be legal) or even non fiction works like Carpenter's Inklings & the invented 'typical' Inkilings meeting in the chapter Thursday Nights. You wouldn't be able to use any historical figure without the permission of their Estate

The typical Inklings meeting was drawn from the actual words of the participants, drawn from their letters, diaries and other writings. Its purpose was to show what it might have been like at an Inklings meeting, not as a critique of the Inklings or how Humphrey Carpenter thought an Inklings meeting should have been conducted. It was therefore at worst a very well-researched and objective piece of historical fiction. There was nothing in it that could possibly offend the estates of the people involved unless they were offended by what their ancestors had actually said, which would be tough luck for them really. The purpose of Mirkwood is manifestly different. I can see why Tolkien's estate would like to stop its publication, and personally I can't understand why a literary critique can't be written and published as such. I doubt that the wider implications had occurred to them, to be quite honest; although some sort of standard for the presentation of reality in fiction ought to exist. In short, you can't libel the dead, but perhaps I'd have to read and watch a lot less drivel if you could.

Perhaps the reason the Estate went for MirkWood & not 'Here there be Dragons' is that Mirkwood was self published & HTBD is published by Simon & Schuster (owned by CBS & one of the biggest publishers in the world). I suspect they knew S&S would stand up to them but expected Hillard to back down.

Perhaps they liked Here There Be Dragons, but thought that Mirkwood was awful. I suspect you may be right, though. I can't blame them for trying, because I can't imagine that they would object to something sympathetic and this wasn't after all a factual account of Tolkien, but the product of a mind that had never known him personally. I'd feel differently if the Estate had tried to suppress embarrassing revelations about JRRT or, indeed, anyone else.

[davem]

Originally Posted by The Squatter of Amon Rûdh

It would be easy, for example, to write a story in which Myra Hindley explains why she committed her crimes. It would be easy to have Saddam Hussein be forced to explain himself to the family of a murdered political dissident, but in the end those stories would have no real value, because they would reflect what the author would like those people to be, or wants the audience to think they were, rather than reality; whilst giving the appearance of reality by the use of real names and personas. Reality is always more challenging, and ultimately more beneficial to the observer, which is why the best historical fiction avoids painting too detailed a picture of any real figure.

But should an author be banned from writing such stories - or punished if they do? Should the author of such fiction be dragged through the courts & risk losing their livelihoods & made bankrupt for such 'presumption'? Define 'reality' - & prove that it is more 'beneficial' (in fact, define 'beneficial' in this context...) Where I disagree with you is here is that you seem to want to restrict BY LAW! what an individual can do with his culture, what use he can make of the people who preceded him. Are you really saying that the story of the real 5th century warlord on whom King Arthur is ultimately based is actually more beneficial than what Malory or the Gawain poet made of it? Should Malory have been forbidden to write the Morte d'Arthur because it was not historically acurate? Or was it permissible because Malory wove the 'real' Arthur into a 'romance'? And then why not the weaving of the real Tolkien into a romance?

you can't have Cecil Rhodes condemning imperialism, for example, or Richard the Lionheart extolling the virtues of England. One of the great advantages of history is that the events of the past have no overriding purpose or message; the facts seldom support any one view, and they make no account of sensibility or taste. The very nature of fictional writing ensures that it embodies one person's beliefs and opinions, and the very events bear out those opinions. To present the latter as the former is to present the author's opinions as historical reality, which is profoundly dishonest.

Yes - you absolutely can! And why should you not? If you make clear that you are weaving a fantasy & that you are not presenting the 'truth' - which Hillard clearly does. You seem to want to hog tie, to cripple the human imagination. Why should not Tolkien be a character in a fantasy. Copyright only prevents you reproducing his works, it does not, & should not, prevent you writing a fantasy about him flying to New York, or playing with the conceit that he didn't invent Middle-earth but merely translated the stories in the Red Book. Mirkwood is a fantasy novel which plays around with that conceit.

The purpose of Mirkwood is manifestly different.

Yes - its a fantasy novel.

I can see why Tolkien's estate would like to stop its publication, and personally I can't understand why a literary critique can't be written and published as such. I doubt that the wider implications had occurred to them, to be quite honest; although some sort of standard for the presentation of reality in fiction ought to exist.

Perhaps the Government could set up a committee to determine what authors can & cannot write. Artists are too dangerous & certainly too bloody cocky to be allowed to write what they want. Apparently there are people out there publishing books full of stuff they've just made up!

Perhaps they liked Here There Be Dragons, but thought that Mirkwood was awful. I suspect you may be right, though. I can't blame them for trying, because I can't imagine that they would object to something sympathetic and this wasn't after all a factual account of Tolkien, but the product of a mind that had never known him personally.

I can blame them. This would have been the thin end of a very nasty wedge. It wouldn't simply have prevented any unauthorised depiction of historical figures, it would also have put the kibosh on speculation about them & their motives. It would effectively hand total control of the person & character of a historical figure over to that person's estate & while that might prevent the individual being exploited or 'misrepresented' by an author, it would effectively mean that the individual could only be depicted in the way his/her estate approved of - if the estate 'own' the person & character they could even prevent factual depictions of the individual if they didn't approve of those facts or want them made public - which is effectively what has happened with Wheelbarrows at Dawn - they've used copyright to prevent facts being published.

[Anguirel]

Squatter, as ever supremely enjoyable prose, but it raises for me some questions about what you enjoy (feel free to regard them as impertinent):

are you pro-Sir Walter Scott? A pretty marginalised writer now but nonetheless I think a great one, whose admirers (Eliot, Tolstoy etc) more than make up for any quantity of present denigration. Of course, though, he is a serial violator of history, a prince of anachronism, a high priest of misconception

(so is Shak, but he's a) too obvious b) so famously hated by Tolk that I always feel awkward mentioning him outside the role playing forums)

I can't agree with your definition of fiction, which sounds more like propaganda. Good fiction shouldn't be agenda-led, should have little to do, primarily, with beliefs and opinions; it should be more to do with the desire to perform a skill; pleasing others, not yourself; and only pleasing yourself when you trust yourself to please others.

It's a frequent and I think really damaging fallacy that all good historical fiction is making the same claim to truth as good history. Shakespeare productions (argh I did it again, it slips out) set in 1930s Sicily aren't necessarily making a historical, so much as an aesthetic and artistic point, and a lot of historical fiction is like that, too. It doesn't mean it's all no-good lies; we've developed a little from Plato, despite what Professor Kirke says in The Lion the Witch and the Wardrobe; just far enough, even, to guess Plato might have been joking?

Finally, I'm interested by your stress on the importance of knowing Tolkien personally; does this mean you think the Estate loses its main card in a generation or so? (Of course this would be supported legally; I think books go out of copyright after, what is it, 65 years?)

Basically, I'm with davem in that I hate the idea of anyone hedging the freedom of the historical novel about with clearly defined rules. In fact I get more exercised about it as I think about it. We really shouldn't have super-injunctions on the past. That would be unutterably bad. It's bad enough that the Max Moseley ruling means very rich people can pulp stuff they think is written about them in the present (this recently happened to a novel by Rachel Cusk)

I ought to add that I have started to think of this little discussion as "davem at it again"...

[davem]

Seems to me some people have this Tolkien shaped blindspot as far as this discussion goes. Its being seen as a case of the Tolkien Estate (Good Guys) defending JRR Tolkien (Good Guy), & therefore 'real' fans ought to align themselves with them against their 'foes' - whether that's the authors of the Hilary Tolkien biography & Stephen Hillard (Bad Guys). To oppose the Estate & object to their behaviour in these cases is seen almost as a 'betrayal' of Tolkien himself (I suspect that's certainly Garm's position reading his comments). One ought not to even question the behaviour/choices of the Estate because they simply cannot be wrong due to their connection with JRR Tolkien.

This is not about whether JRR Tolkien should be used as a character in a fantasy novel. Its about whether a writer of historical fiction should be free to use historical persons in their fiction. Or whether in a non-fiction work its acceptable to speculate on an individual's actions/motivations & play 'what -if'. To argue that they should not (because you can't write a law purely to protect JRR Tolkien from being used in such a way - its everyone or no-one who get's that protection) would put an end to most historical fiction, much biography, & would in effect turn a real once living, breathing person into a commodity. And that in effect is what the Estate is attempting here - to reduce JRR Tolken to a product which they own & can sell on or withhold.

So, you don't like JRRT being presented in such a way, turned into a character - fine - as long as you take the same position regarding every other work of historical fiction which uses real people as characters. If you support the Estate in this then get rid of your Malory, your Shakespeare, your Tolstoy, your Titanic DVD (& your Doctor Who DVDs too), your King's Speech, Lawrence of Arabia, Frost/Nixon & All the President's Men - well, you get the point.

[davem]

Originally Posted by The Squatter of Amon Rûdh

Now, the basis of davem's annoyance seems to be that the Tolkien Estate can and does rigidly control the production and dissemination of all material by and closely related to J.R.R. Tolkien, including his image, languages and, apparently, favourite typefaces. I can't really blame them for wanting to do this, and to be honest I can't really fault the law for allowing them to do so.

Not really - what the Estate were attempting to do was prevent the use of a historical figure (JRR Tolkien) in a fictional work. If that is not to be allowed then you effectively end both historical fiction which uses real people as characters (ie everything from WWII novels which depict Churchill or a recent Doctor Who episode which featured Richard Nixon, & the like, would not be legal) or even non fiction works like Carpenter's Inklings & the invented 'typical' Inkilings meeting in the chapter Thursday Nights. You wouldn't be able to use any historical figure without the permission of their Estate.

The point of libel laws is to prevent people from disseminating false written reports of our personalities and conduct, and the Tolkien estate is trying, by controlling the use of Tolkien's image, to maintain that protection for JRRT posthumously as I should like to do for my own family.

But you can't libel the dead. And the Estate is not attempting to use libel, but 'copyright' - which doesn't (& never has) applied to a dead individual's personality or character. And whether or not you would 'like' to maintain such protection for your own family, legally you don't have that right.

It shouldn't be enough to transplant the false report into a loosely fictional environment and claim artistic freedom.

But legally it is enough.

The basic principle seems to be that the Estate doesn't want to see people making money out of JRRT's name, image and ideas unless they get a cut of the profits and the project is one that they consider appropriate.

Would you apply that same principle to the Estates of individuals you didn't like - should the heirs of Richard Nixon, Saddam Hussain or Myra Hindley have the right to prevent them being depicted in drama/drama-docs in ways that they didn't like?

I didn't know him, and a fictonalised version of someone runs too great a risk of creating a new and inaccurate public perception of that person. Perhaps that is why the Estate is so keen to suppress such a use of JRRT,

But again, you're missing the point - its not about what the Estate is keen to do, or what they'd like - its about the law & their rights under copyright. They don't have the right to demand what they did.

As for blurring the lines between fiction and reality, literary criticism and literature itself, ..... Such an approach runs the risk of creating poor criticism that is also dull literature, and failing to please even its own tiny target audience. Perhaps without the controversy of an attempted ban we'd be looking at yet another forgettable book in a long tradition of forgettable books.

Again, this is not about 'running risks' - & if it was I'd say the risks of such a 'ban' on the use of historical figures in fiction/Lit crit are infinitely greater - its about what's legal & what isn't. The Estate simply don't have the rights they were claiming - & nor should they. Set aside the fact that this is about JRRT - this is very simple - should a writer be able to use historical figures in fiction or not? If you oppose JRRT being used as a character in this book you ought equally to oppose any work of fiction - book/movie/TV series - which depicts historical figures.