How much control an author should have once a book leaves her hands is a fundamental question for copyright law. It arises in lots of contexts, but nowhere more directly than when a different author creates a sequel, a parody, or an homage and the original author objects.
This, of course, was the case with The Wind Done Gone, a work that a court ultimately found to be a parody of Margaret Mitchell’s classic novel and therefore permissible under copyright’s fair use exception. It was also the case with Sixty Years Later: Coming through the Rye, which was a kind of sequel or extension of the story of Catcher in the Rye. In that case, J.D. Salinger (and, finally, his estate) were successful in stopping publication in the United States because the judge — in a decision I lamented frequently on this site — held that it was not a parody and therefore a potential copyright infringement.
Now comes the news that the estate of J.R.R. Tolkien is trying to prevent the publication of two new books based on the Lord of the Rings. One is an English translation of a Russian work that is told from the perspective of Sauron and his forces, who lost the battle Mordor and failed to stop the destruction of the ring; it is called The Last Ringbearer and is available as a free PDF download. The other is a work (called Mirkwood) very similar to the Catcher sequel because it features both characters from LOTR and Tolkien himself, claiming to be a combination of fiction and literary criticism. These works raise the usual questions of whether allowing this level of control actually serves any social interest, or if we would be better off permitting these sequels and letting the marketplace decide what is good and what is unworthy of attention.
The blog TechDirt has written twice about this issue, and their suggestion that the Last Ringbearer case is very similar to that dealing with the Wind Done Gone strikes me as correct. After all, each was a retelling of a classic story from the point of view of a neglected or despised character; surely if one is fair use, so should the other one be. But the second case is not this simple; the issue being raised is not copyright infringement at all, apparently, but a right of publicity claim on behalf of J.R.R. Tolkien.
The right of publicity is basically a right to prevent others from making money using your name, likeness or (sometimes) voice. It is a right created most commonly by state law, and those laws vary somewhat. In most jurisdictions, a right of publicity survives even after the individual is dead and can be enforced by his or her estate. That is the case with the Tolkien estate, who is attempting to use the Tolkien’s right of publicity to prevent the distribution of this second, quasi-literary critical book. They apparently sent the publisher a cease and desist letter, and the publisher has responded with a court action seeking a declaratory judgment.
I want to focus on two issues raised by the unique facts of this case.
First, the right of publicity is an unusual approach, and it is one that seems designed to avoid a fair use defense (since there is no claim of copyright infringement, as there was from Salinger and Mitchell in those two cases). The potential power of publicity rights to suppress unwelcome attention and competition seems even greater than copyright. If it violates Tolkien’s right to control publicity for someone else to write a novel/criticism about hobbitts, wizards, orcs and JRR himself, could it not also be a violation to write a more serious critical secondary work about the original Trilogy if the estate disapproved? Here we approach the real threat to free speech and to scholarship that is latent in this kind of publicity right challenge to a new book. Scholarly works that displeased an estate (perhaps the James Joyce estate as well as that of Tolkien) would not even be able to lean on the slim reed (as it has become) of fair use; in its filing for a declaratory judgment on the issue, the putative publisher of Mirkwood: a Novel About J.R.R. Tolkien relies directly on a First Amendment argument.
Second, with these two books we are very close to the issue of fan fiction, especially in the case of The Last Ringbearer since it is being given away for free. Indeed, fan fiction works based on LOTR are not at all uncommon; the site fanfiction.net list almost 45,000 such works amongst its collection. I spoke about fan fiction at a symposium at Hofstra University last fall, and I learned preparing for that talk that there are strict norms amongst fan fiction writers against both plagiarism and selling one’s efforts, which are intended, usually, as acts of respect. There is no evidence that these norms have been violated by the Russian sequel, but it may still become an issue, mostly because of the attention turned on it by the review in Slate linked above.
Fan fiction is often not very good, but it is spontaneous creativity that springs from love for a particular work of creative art, whether it is a novel, movie or TV show. These works should not be seen as infringements, and they should not have to rely on obscurity in order to exist. If a work of fan fiction actually turns out to be good enough for a wider audience to want to read it — The Last Ringbearer may be such a work — society is better off for its creation and there is no loss to Tolkien or his heirs if we let the new work thrive alongside the original classic. Neither the purpose of copyright law nor the interests protected under rights of publicity are really harmed by such works, and copyright’s purpose is arguably advanced.
[The slides from my presentation on fan fiction are available here]