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The literary legacy that members of the Tolkien Estate want to protect

By:  Brian Tither

Introduction

I think that the reason why some members of the Tolkien Estate have sued Saul Zaentz and its subsidiaries over JRR Tolkien’s literary legacy is because of their overriding concern for protecting that legacy above all else. In particular I think that this is the intention of Christopher and Priscilla Tolkien, the surviving children of Tolkien. And as a former student of Tolkien’s academic speciality in Old and Middle English and Old Icelandic in New Zealand I personally support this intention after being frustrated at The Hobbit production being only valued for the other Hollywood productions and tourist dollars that it may bring into New Zealand. I am also frustrated at the way a lot of the people involved in the production seem to only value it for its enhancement of their individual film projects.

The literary legacy of JRR Tolkien

Tolkien was the Professor of Anglo Saxon at Oxford University in the years that Christopher and Priscilla and their deceased brothers John and Michael were children and Tolkien would come home and tell them stories based on the literature that he was teaching at Oxford. This came from Old Icelandic texts like Voluspa, which describes the rise and fall of Midgard, the Old Icelandic Middle-earth, where Tolkien got his names for his Dwarves, and The Saga of the Volsungs, where Tolkien got his ideas for Bilbo’s encounters with Gollum and Smaug from the God Loki taking off Andvari the Dwarf a ring which causes problems for its bearers and Sigurd’s slaying of Fafnir the dragon, which are supplemented by similar things in the Old English poem Beowulf. This was also supplemented by Tolkien getting his ideas for Beorn, which translates as ‘warrior’ from Old English and as ‘bear’ from Old Icelandic, and Bilbo Baggins, which translates as ‘dweller in a dwelling in a bag’ from Middle English and ‘dweller with a sword from ones in a bag’ from Old English, from characters such as Bodvar Bjarki, which translates as ‘the bear warrior’, and Hott Hjalti, which translates as ‘the small sword hilt’, from The Saga of King Hrolf Kraki, where Hott’s parents are described as living in what appears to be a house built in a hole in the ground.

Given that the name Hott and the Old English word holbytla for ‘hole-builder’ conflate together as hobbit, which means ‘small hole-builder’, and given the oral tradition that developed between Tolkien and his children, it is easy to see how Tolkien took it a step further with his children and got them to help him with creating a story from him one day writing down the words: ‘In a hole in the ground there lived a hobbit’. And from there the story developed as an oral tradition between them until Tolkien decided to write it down in a manuscript and this was published as The Hobbit some years later after he happened to show it to someone who recommended that he got it published. Then he wrote The Lord of the Rings, in which he referred to the mythology, later published as The Silmarillion, that he had been creating since before his children were born, while incorporating a character that he and his children devised from a doll that they owned, which they named Tom Bombadil.

The legacy of the Tolkien Estate

But the story of his children’s involvement did not stop there because Tolkien consulted Christopher on virtually every turn of The Lord of the Rings as he wrote it, while Christopher went on to become a university lecturer in Old and Middle English and Old Icelandic as well. Then when Tolkien passed away he had Christopher appointed as his literary executor and charged him to complete The Silmarillion, which Christopher did. And he also appointed him with John, Michael and Priscilla to take care of other estate matters as well.

This included taking care of matters regarding his selling off the film rights to the books to Saul Zaentz, which Tolkien did to cover the high inheritance taxes that the books accrued upon his death, all which grew out of his experiences with being swamped by the royalty taxes that he had to pay due to the sale of the books from the popularity that he did not anticipate for them. And this included the estate ensuring that Saul Zaentz and its subsidiaries did not step out of parameters that were set by Tolkien to protect the literary legacy of his works, which by implication stretched into his academic speciality to the original texts where he got his ideas from that have no copyright on them. And this experience grew out of seeing what Walt Disney did to the works of the Grimm’s Brothers the latter who Tolkien had a particular affinity for because the Grimm’s brothers also created philological principles, which Tolkien applied in his academia and works. Hence Tolkien did not want to see tangible things like this in his works being turned into intangible things like theme parks, which by implication extends into things like video games and gambling outlets such as slot machines.

And there is a need to protect this literary legacy if this literature is not to become something only valued by the money that people might make out of it at the expense of accessing that literature to many. And one of the things that I have been perturbed about as a student of Old and Middle English and Old Icelandic is experiencing both The Lord of the Rings and The Hobbit productions consulting linguistic and Old and Middle English and Old Icelandic experts for the purpose of developing the movies without considering how such expertise comes from the collective intellectual property of teachers and students in these specialities, even though such intellectual property was strangely fused with Hollywood action movie conventions in the films. And possibly this is why The Hobbit movies have so far not had such experts promoting them like The Lord of the Rings movies had, which probably made it expedient for the first trilogy of movies to be nominated for Oscars in categories like Best Director and Best Film, which they won on the third movie, while the second trilogy so far has not received any such nominations.

The valuation of the legacy in New Zealand

Meanwhile, as I said above, The Hobbit movies have been only valued as a means to bring more Hollywood productions and tourist dollars into New Zealand and it has been seen by people involved in the production as only a means to develop their individual film projects. The latter was made clear to me in October 2010 when allegedly there was industrial action going on which was allegedly having Warner Brothers considering moving the production elsewhere. The impression I got then from such individuals was that if the production went offshore it would severely jeopardise their projects, which was enhanced to me by someone who spoke at The Hobbit rally, which occurred a few days before Warner Brothers decided to keep the production in New Zealand. This person referred to how The Lord of the Rings production created a community of filmmakers, which has left me the impression that this community has been dependent on both that and The Hobbit production for its existence.

Consequently I have decided that I will only support the film projects of individuals involved in these productions if they demonstrate to me sufficient appreciation for the intellectual property that was drawn on for these productions. And for me the benchmark that has been set for that is that shown to me by a prominent New Zealand Maori writer, some of whose works have been turned into films, who supported the teaching of Old and Middle English and Old Icelandic at the New Zealand university that he used to work for. He also left me with the impression that the term ‘Middle-earth’ should not be used as a means for cultural groups to promote their culture to gain tourist dollars without acknowledging the culture that Middle-earth comes from as Tolkien acknowledged and intended it, who said Middle-earth was a use of the Middle English middel-erde, which derived from the Old English Middangeard and is thus related to the Old Icelandic Midgard.

Meanwhile, universities have had to cut their Old and Middle English and Old Icelandic courses even when they have had a reasonable number of students doing them due to a reallocation of university funding from a government who has used The Hobbit production so far for political gain. And I think that this is abysmal given the free promotion that The Lord of the Rings movies got from the New Zealand experts in these specialities through public lectures that they delivered like other experts in the specialities in other places in the world on the release of each movie, which if it had of been picked up on by The Hobbit production might have meant that the media surrounding the movies would have been less focussed on the apparent lack of material in the first Hobbit movie and the technology used, which not all the movie viewers were happy with.

The actual legacy in New Zealand

Also, for the New Zealand world premiere of the first Hobbit movie such experts could have highlighted how it was part of New Zealand’s culture and heritage that our education system produced Kenneth Sisam, a graduate of both Auckland and Oxford Universities, who was Tolkien’s New Zealand born tutor when Tolkien first started learning these specialities. Sisam introduced texts to Tolkien that Tolkien said that he had previously never heard of before, which included the Old English poem Crist, which had words in it translated as: ‘Hail Earendil, brightest of angels/ above the middle-earth sent unto men’. This led to the first draft of the poem of Earendil the mariner that Bilbo sings in Rivendell the night before the Council of Elrond in The Lord of the Rings, which, in turn, Tolkien wrote after his first year of having Sisam as his first tutor, which was the beginning point of his legendarium.

In addition, these New Zealand specialists could have also highlighted how Tolkien alluded in his valedictory address, when retiring from being Professor of English language and literature, to the contribution that New Zealanders (and Australians) made to the Oxford School of English and the close contest which he had with Sisam for Professor of Anglo Saxon. The latter was also referred to in an interview just before the first Lord of the Rings movie’s release with an English born former lecturer in the speciality at a New Zealand university who was at Oxford when Tolkien was Professor there at the time the book was published who said that most undergraduates thought that Sisam should have been Professor.

Conclusion

This lecturer also told my classmates and me that the undergraduates at Oxford formed the basis for the Hobbits in Tolkien’s legendarium, them being derived from the undergraduates living in study groups with a tutor and a servant called a scout who looked after their personal needs assigned to each group. That is, Frodo Baggins and his cousins were based on the undergraduates, Bilbo Baggins on the tutor and Samwise Gamgee on the scout. And hence, whereas The Hobbit was something derived by Tolkien from his telling of stories to his children based on his academia, The Lord of the Rings was derived from his actual teaching of that academia. And I experienced an evolved version of that at university from a former PhD graduate of Oxford who got some of her Bilbos to teach Sams like me our letters like Bilbo does for Sam in the book. And according to one of those Bilbos my classmates and I are the envy of many who learn these letters around the world for having had this lecturer as a teacher, which is a sure foot in the door for any of her Frodos into universities such as Oxford and Cambridge. And it is such legacies that Christopher and Priscilla Tolkien are concerned with protecting knowing full well that without it their father’s legendarium would not even exist.

Brian lives in Wellington New Zealand on the main drag to both Victoria University where he was he was taught Old and Middle English and Old Icelandic at undergraduate level by an Oxford University PhD graduate and the Embassy Theatre where the red carpet rolled out for all New Zealand premieres for The Lord of the Rings and The Hobbit movies. He goes under the pen name of Brian Boru, which refers to his family descent from a famous Gaelic warrior-king of a millenium ago called Brian Boroimhe who is part of a Gaelic literary canon that he also wants to study.

MAKING SENSE OF THE LATEST TOLKIEN LAWSUIT

By Douglas C. Kane

INTRODUCTION

As most here probably know, there is yet another litigation winding its way through the U.S. federal court system related to Tolkien’s Middle-earth subcreation.  This follows numerous past law suits and legal scuffles, including efforts by both the Tolkien Estate (the entity charged with protecting Tolkien’s literary legacy) and Middle-earth Enterprises (a division of the Saul Zaenz Company, which owns the film rights to The Lord of the Rings and The Hobbit and related rights, the exact scope of which is at the heart of this current litigation) to prevent third parties from making unauthorized use of the names, characters, places, and other material that they each respectively (and sometimes competingly) claim legal control over.  It also includes several past lawsuits against New Line, one by Peter Jackson himself, and others by actors and other individuals involved with the Lord of the Rings films who claimed that they were not paid the compensation that they were contractually due for their efforts on those films.  And, of course, it included the big one, the lawsuit by various individuals and entities related to the Tolkien Estate and Tolkien’s publisher against New Line alleging that the film company had failed to pay the royalties that it was due from the wildly successful films pursuant to the original agreement by which Tolkien had first sold the film rights, which was finally settled for an undisclosed (but clearly large) sum in September 2009.  That litigation was particularly of interest to fans of Tolkien and of Jackson’s Middle-earth films because, in addition to being about large sums of money, it also included a threat by the plaintiffs to stop further production on the films based on The Hobbit.  The settlement of that case removed that threat, and the current litigation does not threaten the productions in any direct way.  But it does have potentially dramatic long term ramifications regarding the future of the Tolkien-related universe.  The other big difference between this litigation and the previous Tolkien versus New Line case is that, unlike in that case in which it was all about whether New Line had failed to meet its legal obligations, in this case the two sides have competing claims against each other, each claiming that the other has acted in bad faith and infringed upon their rights.  The determination of who is right will go along ways towards defining what that future will be like.

The Claims

The lawsuit was initially filed on November 19, 2012 by the Tolkien Estate and related entities, as well as the publisher, Harper Collins and related entities (together referred to as “plaintiffs”, against Warner Brothers, New Line, and related entities (together referred to as “WB”) and most particularly Saul Zaentz and his Middle-earth Enterprises (usually referred to as “Zaentz” and together with WB referred to as “defendants”).  Interestingly, Christopher Tolkien is not a named plaintiff this time, but his sister Priscilla is, as a trustee of the Tolkien Trust. There is also entity entitled Fourth Age, Ltd., which was not a party to the last suit (it was actually formed in November 2011, well after that suit was settled). Although court records related to the lawsuit do not reflect this, according to U.K corporate records this entity actually changed its name on February 21, 2013, to Tolkien Estate, Ltd. Its directors include Tolkien family members Baillie Tolkien, Christopher Tolkien, Priscilla Tolkien, Simon Tolkien and Michael George Tolkien, as well as the Tolkien Estate attorney, Steven Andrew Maier.

Unlike the previous lawsuit, which alleged that New Line breached the original agreements selling the film rights by failing to make the royalty payments that those agreements require, the main complaint this time is copyright infringement.  There are two main activities that plaintiffs claim defendants infringe upon rights that plaintiff assert they still hold: (1) Lord of the Rings themed slot machines; and (2) online and downloadable video games. The basis of the claims is that the original agreement in which the film rights were sold only granted limited merchandising rights that cover “personal property that can physically be purchased,” and that these activities exceed the scope of those limited merchandising rights. The plaintiffs also claim that Zaentz has been infringing trademark rights. These disputes have been brewing for a long time, but apparently were brought to a head when one of the Estate’s attorneys received a “spam” email advertising the Lord of the Rings slot machines. Plaintiffs claim they have engaged in settlement discussions since 2010, to no avail, and that Zaentz has instead indicated that he intends to expand the merchandising.

The Counter-Claims

On January 18, 2013, Zaentz and WB each responded to the lawsuit by, in addition to denying the allegations, filing counterclaims for declaratory relief and for damages for breach of the implied covenant of good faith and fair dealing inherent in all contracts under U.S. law. They each subsequently filed amended counter-claims on March 11, 2013. These claims are essentially based on the argument that by filing their lawsuit, plaintiffs breached the implied covenant by repudiating the agreement granting the rights to defendants. Defendants cite correspondence going back to 1996 in which Harper Collins and the Estate’s attorney concede that Zaentz has the right to online video games based on The Hobbit and The Lord of the Rings. Perhaps most interesting, they cite a September 2010 “regrant” agreement in which the Estate confirms the rights held by Zaentz, and licenced to Warners/New Line. That must be the agreement that was referred to in Entertainment Weekly back in October 2010, in which Jackson was quoted as saying that one of the issues causing the delay in beginning production on the Hobbit films was negotiations with the Estate over rights issues. The interpretation of what that agreement actually says and means is clearly at the heart of this dispute.

The damages claim is based on the allegation that they entered into the “regrant” agreement in September 2010, and then the Estate immediately started complaining about actions that (at least in Zaentz and WB’s opinion), they had just agreed Zaentz and WB could do.  They assert that this “repudiation” of the agreement has prevented them from entering into “license agreements for online games and casino slot machines in connection with The Hobbit — a form of customary exploitation it previously had utilized in connection with the Lord of the Rings trilogy — which has harmed Warner both in the form of lost license revenue and also in decreased exposure for the Hobbit films.”

In November, the Tolkien estate and and its book publisher HarperCollins filed an $80 million lawsuit that claimed that Rings/Hobbit producers including Warner Bros. had infringed the copyright in the books and breached a contract by overstepping their rights.

Rings/Hobbit rightsholder Saul Zaentz Co. already made their own counterclaim that the Tolkien estate has breached an implied covenant of good faith and fair dealing by going down this road.

Now, it’s Warners’ turn.

The studio, represented by pitbull attorney Daniel Petrocelli, is now striking back at the Tolkien estate with amended counterclaims that alleges the Tolkien estate’s repudiation has cost Warners to miss out on millions of dollars of licensing opportunities. The studio demands damages for the alleged breach of contract.

[Read More]

Yet those fans who went on to immerse themselves in J.R.R. Tolkien’s wider lore will find inspiration. For the most part, director Peter Jackson does not exercise an extra heaping of artistic license. Rather, Jackson—reportedly something of a nerd himself—borrows from the larger Tolkien literature to create a rich Hobbit tableau.

“Jackson knows the lore pretty well and wanted to bring that larger material in there wherever he could,” said Michael Drout, an English professor at Wheaton College who founded the academic journal Tolkien Studies and edited the J.R.R. Tolkien Encyclopedia. It’s this so-called textuality—or texts behind texts behind other texts—that lends Tolkien’s work the air of reality, he said, and which Jackson seeks to capture in his films.

Jackson isn’t free to tap into any detail he wants from Tolkien’s wider works, however. “He had a very difficult task in that the movie rights extend only to The Hobbit and Lord of the Rings,” said John Rateliff, an independent Tolkien scholar and author of The History of the Hobbit. “He’s well aware that there’s a great deal more material set in that world, but contractually not allowed to use that material in the movies.”

[Read More]

From the source post:

“…here is how I heard that it played out. Universal asked Warner Bros. to approach the Tolkien family since the Tolkien’s trust WB with the success of the LOTR series. WB described how Universal was willing to work with JK Rowling and how the 2 of them (WB and JK) held Universal’s feet to the fire to uphold Rowling’s vision of the IP. And I believe that the Tolkien’s may have actually talked to JK Rowling. This was before Universal said a word to the Tolkien’s. So after WB stoked the fire, Universal entered the picture with an impressive plan.

As of now there is a lot of hammering out to go, but Universal has gotten a lot farther than Disney ever did.”

Tolkien aficionados would recall, of course, that the professor had a notoriously low estimation of the creative works of Walt Disney. Letter #13 in Letters of J.R.R. Tolkien makes his position clear:

“It might be advisable [...] to let the Americans do what seems good to them — as long as it was possible [...] to veto anything from or influenced by the Disney studios (for all whose works I have a heartfelt loathing).”

That’s not to say that Universal would fare any better with Tolkien Estate in any quest to create a Middle-earth theme park. The Estate is well-known to be wary of merchandising, and is currently engaged in a legal stoush with Warner Bros. and Saul Zaentz, alleging that the companies are merchandising beyond what was contractually agreed upon in the 1969 rights deal.

Micechat, a site that specialises in theme park news, claims Universal “is very close to acquiring the rights to develop and produce attractions based on the successful Lord of the Rings franchise of films”. So we might see whether there’s anything to this rumour quite soon.

Christopher Tolkien

You may have read recently that the Tolkien Estate has brought a lawsuit against Warner Bros., regarding Warner Bros.’ marketing rights for Lord of the Rings and Hobbit products.  Our friend Erik Wecks has written a great piece for Geek Dad at Wired.com, clarifying some of the issues at stake and suggesting why the Tolkien Estate may have felt the need to take such action.  For fans of Tolkien’s work, just how far is too far – when does a franchise become a sell out?  Check out the excellent article here.

“The original contracting parties thus contemplated a limited grant of the right to sell consumer products of the type regularly merchandised at the time (such as figurines, tableware, stationery items, clothing and the like). They did not include any grant of exploitations such as electronic or digital rights, rights in media yet to be devised or other intangibles such as rights in services,” says the 26-page complaint.

“Not only are gambling services outside the rights granted, but this exploitation of Tolkien’s well-loved work has offended and distressed Tolkien’s devoted fans, harming Tolkien’s legacy and reputation,” The Tolkien Estate said in a separate statement to Deadline.

[Read more]

The Qenya Alphabet is an edition of Tolkien’s charts and notes dealing with the circa-1931 version of the writing-system later called Fëanorian Tengwar. It includes 40 documents in which Tolkien’s examples of the scripts are reproduced using electronic scans of black-and-white photocopies of the original manuscripts.

Among the documents are explanations of the use of the script for representing English, both phonetically and also according to English spelling. These have charts of the theoretical values of the sounds represented by the letters, and various English words and texts written in the scripts.

There are also numerous specimen texts written by Tolkien in the Qenya Alphabet. There is a great variety of different styles, rounded and angular, and ranging from carefully formal writing to rapid cursive. This is the period when Tolkien made the samples of elvish script first published in the Silmarillion Calendar of 1978, which are now placed in their context within the conceptual development of the Tengwar.

As in previous editions of Tolkien’s earlier writing-systems published in Parma Eldalamberon, the editor has provided transcriptions of the examples texts along with commentary on their dating and historical background.

Parma Eldalamberon Issue Number 20 is a 160-page journal.

Publication Date: 3 August 2012
Cost: $35 per copy including postage and handling world-wide.

You can reserve a copy by ordering it now via PayPal at the following link: Paypal

Or send a check to:

Christopher Gilson 1240 Dale Avenue, No. 40 Mountain View, CA 94040
USA. * cgilson75@hotmail.com

Here’s the exclusive story from The Hollywood Reporter:

Author Steve Hillard has signed a deal with EMO Films to develop and secure financing for a film version of his novel Mirkwood, which centers around a fictional version of The Lord of the Rings authorJ.R.R. Tolkien.

Emo’s Joel Eisenberg and Timothy Owens will executive produce the project.

“The adaptation of Mirkwood will follow the template of the novel,” said Hillard, “but will delve considerably deeper into Tolkien’s little-known back story, such as his original plans to become a codebreaker in World War II up through the writing of his enduring works.”

[Read the Full Story]

In February, Hilliard went to the U.S. District Court in Texas seeking a declaration that he had a First Amendment right to publish Mirkwood, A Novel About J.R.R. Tolkien against the estate’s claims that such a book would infringe upon Tolkien’s name and likeness. The parties have now agreed on a plan that would allow the book to come out without further litigation. More..

“The J R R Tolkien Estate has been made aware of a statement by ADC Publications concerning its cancellation of its proposed publication “Wheelbarrows at Dawn” by Angela Gardner and Neil Holford.

ADC’s statement suggests that the publication has been cancelled as a result of the Tolkien Estate’s threats to take court action preventing the release of the book.

As this statement is highly misleading, the Tolkien Estate considers it important that the true facts be clarified for those concerned.

The book in question was presented by ADC as a biography of J R R Tolkien’s brother Hilary. However, the publication included numerous personal letters from J R R Tolkien to his brother and from other family members that were reproduced virtually verbatim.

The copyright in these private, unpublished letters belongs to the Tolkien Estate. As the guardian of these rights and of the privacy of the Tolkien family, both of which it takes great care to protect, the Estate quite properly declined permission for the letters to be reproduced in this way.

However, the Estate made clear to ADC that it had no issue with the publication of the book providing the material in question – affecting only 20 pages out of a total of some 300 – was removed.

Although ADC’s response was to agree to this, what it then did in practice was to paraphrase the letters, something that had been made clear from the outset would not resolve the issue.

Despite the Estate’s devoting considerable resource to helping ADC, not least by suggesting specific editorial changes which would meet its concerns, ADC then announced the cancellation of the book.”