JRR TolkienTORn friend,  Brian Tither, who has studied Old and Middle English and Old Icelandic at Victoria University NZ, has sent this response to our post on Making Sense of the latest Tolkien Lawsuit.

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

By:  Brian Tither


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.


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.

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