UPDATED: Tolkien estate censors badge that contains the word "Tolkien"

Update: I was wrong. Writing on behalf of the Tolkien estate, Steven Maier, partner at the Oxford law firm of Manches LLP, says, "Zazzle has confirmed that it took down the link of its own accord, because its content management department came across the product and deemed it to be potentially infringing."

Not content to censor a book that combines literary criticism and fiction by including JRR Tolkien as a character, the Tolkien estate has shut down Adam Rakunas, who makes and gives away buttons that have the word Tolkien on them:

Back in the late 2009, I got into a Twitter conversation with Madeline Ashby about geek culture, fandom, and a bunch of stuff like that. Madeline wrote, "While you were reading Tolkien, I was watching Evangelion." I thought this was an excellent encapsulation of the divide in SF/F/Whatever fandom, and thus took to Zazzle to make little buttons with her quote. I bought a bunch, handed them out at a few conventions, then I had a kid and promptly forgot all about it.
Until today, when Zazzle emailed me to say they were pulling the buttons for intellectual property right infringement.
And guess who complained about their rights being infringed?
I've tried to come up with something more to say about this, but I'm too angry and confused and tired to say anything more than I did in the title of this post. Have fun milking your dad's stuff, Christopher Tolkien!

The Tolkien estate has long had a censorious bent -- a writer I admire was forced to put a series of books that in no way infringed upon Tolkien's copyrights out of print because the estate threatened to make her publisher's life a living nightmare (not naming names, because the writer has chosen not to go public with the story). The professional descendants making millions off a long-dead writer have become a serious impediment to living, working writers -- and readers. If this isn't the greatest proof that extending copyright in scope and duration screws living creators and impedes the creation of new works, I don't know what is.

The JRR Tolkien Estate Can Go Fuck Itself (via Futurismic)

I write books. My latest is a YA science fiction novel called Homeland (it's the sequel to Little Brother). More books: Rapture of the Nerds (a novel, with Charlie Stross); With a Little Help (short stories); and The Great Big Beautiful Tomorrow (novella and nonfic). I speak all over the place and I tweet and tumble, too.

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fenester

Not a lawyer, but I play one in my nightmares. As others pointed out, it seems hard to fit this into copyright. Trademark is possible. In that case, if it is TM’d, spelling it differently doesn’t matter. If it sounds the same it’s considered the same as the TM. Haven’t learned about Right of Publicity yet. The fact it’s being sold (and not, say just a banner statement on your personal blog) is a consideration too, more leeway is given for non-commercial speech.
First amendment. Also, NOT confusing as to source origin…. I mean it says in effect I was NOT reading Tolkein…how do you get to “people will think this is endorsed by the estate of JRRT” from there? With money and lawyers.
Anonymous

Normally I give the Tolkien Estate the benefit of the doubt, but this is preposterous.

That said, if Chris Tolkien was truly milking his father’s legacy, surely he would’ve pulled a Brian Herbert and started writing his own fan-fiction disguised as “authorized sequels”? Printing and collating his father’s notes and words is one thing, but at least he isn’t inflicting “The Return of the Shadow, Book VI” on us.

Besides, printing History of Middle-earth and Unfinished Tales can’t possibly compare in sales to The Hobbit and the Original Trilogy anyway, since only diehard Tolkien fans are going to get those two. Certainly not The Legend of Sigurd and Gudrun, excepting some poor souls thinking this was a new Middle-earth tale. Not really much of a milking session.
darue

so the easy answer is to ignore the letter.
Anonymous

This is just a fucking tragedy. There’s just no sugar coating this level of bullshit.
Coal

I was just about to write an enormous cheque out to the estate, but if the cheque is going to infringe on their copyright then I’d best play safe and keep the money myself.
osmo

Can’t he just put them over on some button company that don’t give much of a rats ass or is situated in a country where suing someone over something like this would be considered “missusing the courts time”?
Anonymous

Is it even possible to copyright a last name?
Galadriel

The Tolkien estate over-reaches themselves constantly. It’s not a new crackdown, it’s an ongoing crackdown.

Every so often they find me and try to order the site to take down my stuff–BECAUSE I AM USING MY OWN DAMN NAME. So far, my argument that none of my stuff is reasonably within Tolkien trademarks has prevailed, but it’s been a headache on occasion.

Their takedown demands don’t always have anything to do with reality, just with grabbing as hard as they can.
Church

In before “That’s not censorship!”
marukosu

Wow. I wonder how long it will take for “Tolkien is an ass” to reach first spot on Google autocomplete?
Anonymous

Hows about:

Christopher will demand a TOKEN payment for this badge.
fataltourist

Ok, we should all create Zazzle accounts and make items with Tolkien printed on them. “I dare you to censor the Tolkien out of this”
Josefrancisco

Well said, funny given the nature of his apocalyptic visions of destruction by new techs.

Idea: Lets make a way around the spelling part and use it, but to tell you the true, if we stop using it and mentioning his books and name maybe no one would know about him and the money coming to their blood suckers will dry out.
Anonymous

Copyright does not cover a person’s name so the estate cannot be claiming protection under that basis.

The trademark registration “Tolkien” expired in Europe on 4th February 2010 so they cannot claim protection on that specific term on that basis.

Looks like the estate may have been acting unlawfully in that they may have committed the tort of interference in a contract.
Anonymous

Tolkien? More like Toll Kin.
Church

Just spell it “Tolkein.” 90% of people won’t notice.

New button: “Nobody reads Christopher Tolkien.”
sluggo

Methinks if you spelled Tolkien wrong, you would not only sidestep the issue, but also turn the button into the One Button–a Button with such great power, it not only trolls the Estate, but also every ‘Tolkein’ fan who lays eyes upon it. It also would reference the spelling skills of Evangelion fans.

I think that’s known as a win-win-win situation.
franko

to reiterate, this is CHRISTOPHER tolkien who’s always been behind this kind of thing. i think the rest of the family would be more open-minded.
darue

so when are they going to force Palantir Technologies to change it’s name?
dancentury

That’s ridiculous. I hope the button make can fight this and win without expenditure. Is he covered under parody laws?

BTW, Bleach is better than both LoTR and NGE. So there. Bleach is better than Star Wars.
Church

OK, I’m about ready to write some C. Tolkien slashfic. I’m thinking Barbara Streisand as his dominatrix, but I’m open to suggestions.
Saint Fnordius

I think someone needs to make a button that states “I had a cool button, but the Tolkien Estate sued me for infringement”.

That or “Mervyn Peake is still cooler than [NAME CENSORED BY THE TOLKIEN ESTATE]“
querent

Should we put Christopher Tolkien in the same boat as Brian Herbert?

And dancentury, you’re nuts. Not to hate on bleach, but you’re nuts.
Stooge

If this isn’t the greatest proof that extending copyright in scope and duration screws living creators and impedes the creation of new works, I don’t know what is.

Copyright has nothing to do with it unless or until a court says Tolkien is right. If I wrote you a C&D telling you to stop sending zombies after me, would you see it as proof of the need to amend zombie-related legislation?
zebbart

I’d like to make an “OBEY Tolkein” button, but I’d get sued by two copyright trolls.
Anonymous

How many times must a man get killed before he’s finally dead…
R.I.P. Tolkien
wookiedingleberry

Not free as in ‘free beer’ but free as in how free we are to behave like assholes.
Bloodboiler

Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien

Bring it on Christopher. I’ll beat some sense to your 86 year old head with your dad’s boring books.
The Life Of Bryan

The beauty of eternal copyrightâ€¦ thanks, Disney, we werenâ€™t actually using our culture anyway.
carborundum

Maybe we could persuade a certain family that the shire is an infringing urban homestead…
EscapingTheTrunk

Madeline Ashby, here. First, I’d like to thank Adam for considering my little tweet a legitimate piece of cultural criticism, and defending it so vigourously. Second, he’s not the only one — I’m giving a talk March 16 at the Merril Collection in Toronto on this very subject, and the people of the Toronto Public Library system wouldn’t have asked me if they weren’t on some level interested.

I’ll probably expand upon this at my blog (linked by David Nickle above), but it suffices to say that what I find ironic about this little drama is how it illuminates the divide that Adam and I were tweeting about. Simply put, GAINAX (the studio whence Eva came) would never pull this shit. Ever. If anything, they’re on the extreme opposite end of the spectrum — they rejoice in fan-made products related to their licenses, while shamelessly promoting endless iterations of similar products based on those licenses. It’s a dynamic that’s always fascinated me, and it’s completely different from the aggressive takedown mentality that the Tolkien estate apparently adheres to.
Anonymous

I have a friend named Tolkin. Better warn him…
Deidzoeb

Can someone explain where I could find info about the actual rights of publicity for dead celebrities in the US? There’s a certain deceased guitar god that I’d like to include as a fictional character, and I don’t understand how his relatives in Washington can claim to hold his rights of publicity when he died in London and his last US residence was in NY. (Dammit, I’m giving away too much. That could be anybody!)

Seems like this happens all the time with fictional stories about real characters. Abraham Lincoln, Vampire Hunter. Cryptonomicon describes people like Turing who lived until the middle of the 20th century, interacting with clearly fictional characters. Does it depend on how litigious the estate is, or the laws of the exact state where the person died? How can anyone write a historical novel using characters dead less than 100 years?

*vexed*
- Anonymous
  
  –Something similar say, to “Jim Morrison’s Adventures in the Afterlife”? http://www.publishersweekly.com/978-0-312-20654-3
- Church
  
  Good question, since it varies worldwide and statewide within the US. WikiP is a good place to start: http://en.wikipedia.org/wiki/Personality_rights
Anonymous

This is hardly the Tolkien’s first rodeo; The Tolkiens have a long and very interesting history of litigation. I’d like to refer you to the 2007 case, Carrie v. Tolkien.

There, Royd Tolkien posted a libelous comment on a blog owned by the author of a book critical of Tolkien’s son, Fr. John Tolkien. The author/blogger sued Tolkien, but ultimately lost because the Queen’s Bench bought R. Tolkien’s argument that the author/blogger had “consented” to the libelous comment’s publication by failing to immediately delete it. By operation of British law, the author/blogger was saddled with enormous fees as a result of losing his action.

(See, http://theipblog.blogspot.com/2009/01/dont-defame-my-blog-i-know-what-to-do.html)
GuidoDavid

Trollkien
M

That’s OK–I don’t mind “not reading Tolkien” to “not buying from Amazon” (as a result of their Wikileaks response). There’s lots of other stuff in the world.
Anonymous

Funny but they are preventing him from using it for exactly the reason he is using it: exploitation! Leroy Jenkins!!!
brasspen

I’m a member at large of the board of the Friends Of The Merril and I approve this message.
Festus

As a lifelong Tolkein reader, and someone who has read through all the volumes edited by Christopher Tolkein, I must say that many of the comments in this thread are ignorant and overly aggressive.

Whatever the merits or demerits of defending the Tolkein “brand” in the original article, the idea that Christopher Tolkein is “milking his dad’s stuff” is totally bogus. If it weren’t for Christopher, we would not have all kinds of great work that never made it into print during JRR’s lifetime. If it weren’t for Christopher we would not have the amazing books of material that JRR wrote essentially for himself as background material. That stuff is precious!

Further, there is a deeper issue evident in many of the comments. One of the many ways our society demeans authors is by ignoring the key work of editors and collaborators. I say this as an author and as a sometime editor. Yet many of the great academic and popular authors had collaborators or editors who made their work possible and made it shine. I am thinking of historians like James (and Mary!) Beard. We denigrate the collaborator and the editor and that is wrong. Christopher Tolkein is not “milking his father’s stuff” (shame on you, nameless blogger).
- Adam Rakunas
  
  Hi, there. This is Adam Rakunas, the nameless blogger (and, Cory or some other BB editor, would you mind editing the post so it uses my name instead of calling me “a guy”? Seeing how you posted my entire post, and it’s under a CC By-NC-ND license. Thanks!).
  
  Yes, I’d say Christopher Tolkien is milking his father’s work. No matter how much effort he’s put into editing, he had his father’s notes, unfinished manuscripts and reputation as raw material. Getting the Silmarillion published? Okay, I’ll grant him that. Unfinished Tales? Pushing it. Twelve volumes of the History of Middle-Earth? Hm, I think I hear the cows. The Children of Hurin and Sigurd and Gudrun? Pull up a stool, Bessie, ’cause it’s milking time!
  
  As for the anon commenter who accused me of exploitation: I put these buttons on Zazzle because it was only place I could think of that would churn out buttons in time for me to pass around the World Fantasy Convention in 2009. The version in the picture didn’t have Madeline’s URl; I changed it because the quote is hers, and she deserved the attribution. If I recall, Zazzle wouldn’t let me put on a mark-up of zero; so, in the end, I (or, rather, Madeline) made a whopping $.63. EXPLOITATION!
  
  Madeline’s quote is a valid piece of cultural criticism. What the Tolkien estate did and continues to do is wrong and stupid and small-minded. I’ve written the EFF to see if this is the kind of thing they’d be interested in pursuing, especially since I think it will have a chilling effect. We’ll see how it goes.
  - Antinous / Moderator
    
    Unfinished Tales? Pushing it.
    
    Actually, Of Tuor and his Coming to Gondolin is my favorite bit of Tolkieniana. But the other hundred volumes of notes on cocktail napkins does go on a bit.
  - AnthonyC
    
    I really like JRR Tolkien’s work. And I think Christopher Tolkien did a good thing by getting his dad’s other stuff published. The Silmarillion is actually the only book I’ve ever read three times.
    
    But most of the other posthumous publishing are crud. Rough drafts, and the like. There are a few gems, but hardly enough to fill a dozen volumes. Not worth the time of anyone but a Tolkien biographer.
    
    This can’t be a trademark issue. Even if the name is trademarked, the button was using the name to reference the rightful owner, and since there is no reasonable possibility of thinking the button was endorsed by the Tolkien estate. It can’t be copyright, since you can’t reasonably have copyright over your name (it isn’t an expression of an idea of any kind). I’d never heard of rights of publicity before reading these comments. Now I have some reading up to do!
    
    And @Adam, good luck finding a button company that won’t cave so easily, if you go that route.
- chawke
  
  Despite my previous comment, tongue in cheek of course – I agree with you Festus – thank-you for reminding us of this.
- EeyoreX
  
  “If it weren’t for Christopher, we would not have all kinds of great work that never made it into print during JRR’s lifetime. If it weren’t for Christopher we would not have the amazing books of material that JRR wrote essentially for himself as background material.
  
  You say that as if it was a good thing rather than shameless exploitation. How curious. I’m pretty certain that Christophers dad got to publish the stuff he saw fit to publish.
  
  Seriously, this morbid unsaitiable facination with half-digested apocrypha is the main reason why us more casual readers can’t abide Tolkeinheads.
- Anonymous
  
  “If it weren’t for Christopher, we would not have all kinds of great work that never made it into print during JRR’s lifetime.”
  
  I really hope you’re not counting The Silmarillion as a “great work”..? O_o
- Church
  
  “One of the many ways our society demeans authors is by ignoring the key work of editors and collaborators.”
  
  No, that’s one of the many ways we demean editors and collaborators.
  
  Especially post-mortem ‘collaborators.’
Brainspore

Tolkien’s kin taking Tolkein tokens? Are they tokin’?
David Nickle

I wonder how things will go when Madeline Ashby delivers her talk of the same title at Toronto’s Merrill Collection of Science Fiction, Speculation and Fantasy in Toronto March 16. Will the all-seeing Eye of Sauron blink at a talk given in a Canadian public library collection devoted to works like LOTR? Ms. Ashby wonders too.

http://madelineashby.com/?p=850
pjcamp

Butbutbutbutbutbut . . . . we have to protect The Rat!

The Giant Rat of Disney!\
Mister44

Wow. That is bullshit.

Tell them you meant Bob Tolkien and STFU.

http://www.facebook.com/people/Bob-Tolkien/1637053136
Anonymous

God, this is pathetic and lulzy.

As far as structured, rhymed and lyric poetry, I’d rather read Robert Alter’s translation of the Book of Job. As far as fantasy verse, I’ll take Lewis Carroll.

Really, though, Tolkien was just a reactionary, a brilliant and lyrical propagandist for Tory fantasies of Britannia-gone-by. He was the English countryside’s Wagner: romantic defender of the Homeland and the Folk against outside disruption, taking a patriotic stand in the war between Good and Evil and exalting Great Heroes. The Lord of the Rings is a cycle that Mani and Zarathustra would have been proud of. Judging from the exoticism dripping from his depictions of lands outside of the Shire, he was something of a colonialist as well.

Tolkien and C.S. Lewis can go stuff themselves, and Tolkien’s estate as well.
- Antinous / Moderator
  
  Have you actually read LOTR? Because it mostly seems to be about rapprochement between the races and how the little, squashy guys from nowhere turn out to be the heroes. Tolkien lauds the principles of compassion and turning your back on corrupting power.
Anonymous

In the spirit of Neil Gaiman, and mostly to see how long it lasts until the estate comes knocking at my door, here’s some ‘J.R.R. Tolkien is Not your Bitch’ T-shirts :-)

http://www.cafepress.com/Rons_Shop.512040163
DWittSF

Everybody’s Tolkein at me,
can’t hear a word they’re sayin’
only an echo from my mind.

Time to sue the Estates of Harry Nilsson / Fred Neil for infringement?
Rivka

I think this is all part of a massive crackdown by the Tolkien Estate. I run a Lord of the Rings fansite, where we sell some Tolkien related t-shirts on the side, and they’ve removed just about all of the shirts. I’m not quite sure how a generic image of a wizard is a violation of the Tolkien Estate’s copyright, but whatever.
chawke

I wonder if Tesla’s estate has an issue with the Sanctuary’ series – you know, Amanda Tapping’s (of SG1) project.

Anytolkien, I think Grand Moff Christopher should Tolkien himself. Also, slightly off topic, Congressman Santorum should…oh never mind the bullocks, here’s the Tolkien Pistols.

I’ve got big Tolkiens
I’ve got big Tolkiens
And they’re such big Tolkiens
Dirty big Tolkiens
And he’s got big Tolkiens
And she’s got big Tolkiens
But we’ve got the biggest Tolkiens of them all

And my Tolkiens are always bouncing
My ballroom always full
And everybody cums and cums again
If your name is on the guest list
No one can take you higher
Everybody says I’ve got
Great Tolkiens of fire
Anonymous

@Festus, I was under the impression that he spelled it “Tolkien” and not “Tolkein”. Or, did I miss another in-joke?
Gilbert Wham

Persuade people to read Peake instead (I love doing this to LOTR fans), on the grounds that it’s contemporary with, and far better written than LOTR (and features the same rise of New Things Spoilin’ It For The Old Guard). Plus, it features a complete absence of dwarves spouting poetry (seriously, the reason poetry makes my eyes glaze over and my brain go Elsewhere is entirely due to the Hobbit).
Flay’s battle with Swelter is better than JRR’s entire output, not to mention it didn’t spawn the Belgariad and it’s ilk.
- Anonymous
  
  Have you suggested to Hilliard that he was writing about an inferior author anyways, or is it only average people who you know better than?
- Festus
  
  After my seventh time through the series, I finally started reading and really enjoying the poetry. I bet you don’t like Bob Dylan lyrics either, right?
  - george57l
    
    Festus
    
    Are you suffering from Stockholm Syndrome?
  - Antinous / Moderator
    
    After my seventh time through the series, I finally started reading and really enjoying the poetry.
    
    I’ve read it every year since 1967. My friends wish me Happy New Years on September 23rd every year. But I still can’t get through Sam’s troll poem, there are way too many scenes that only work if water runs uphill, and where the hell does Galadriel shit if she lives 300 feet up a tree?
  - Gilbert Wham
    
    No I love Dylan, it’s Dwarf Poetry I can’t fuckin’ stand. Have fun with Mervyn.
- Festus
  
  And I meant to say: Thanks for the reading suggestion. I haven’t heard of Peake but will seek her/him out at my library.
  - george57l
    
    Well I can see how seven times through the Tolkien oeuvre might not leave a person much time to learn about other authors.
    
    The clues were scant, so here’s some more detail. Mervyn Peake. Male. His ‘Gormenghast’ trilogy starts with ‘Titus Groan’.
    
    http://en.wikipedia.org/wiki/Mervyn_Peake – mentions Tolkien in the first paragraph, so you’re on safe ground.
    
    Enjoy.
phibbus

Well, technically, nobody has “come after” The Last Ringbearer… The the author has simply chosen not to test the English publishing waters, and I’m not convinced it’s something the estate would challenge given that they already could have done so with several of the European language translations. If you actually take a look at Mirkwood: (A) It’s a pretty obvious ploy to generate sales by trying to look superficially like an actual Tolkien novel; and (B) it passes off an awful lot of simply false (whether by deliberate “fictionalization” or simply lazy research) quotations and events as actual, historical fact. There are likely legitimate grounds for legal challenge, there.

The button certainly doesn’t look like anything of the ilk that the estate normally opposes, and appears to be a case of “let’s cover all our assets” by an overly-cautious print house.
Pip_R_Lagenta

Ahh, yes. I have run into this before. The first person with a particular name who becomes famous, then owns that particular name for all uses and in perpetuity: http://www.flickr.com/photos/pip_r_lagenta/3328737287/
chawke

I wrote:

‘My ballroom always full’

I meant:

‘My Tolkienroom is always full’
Anonymous

Hi. This is Adam Rakunas, the guy with the buttons. I have now written the EFF, just to see if this the kind of thing they’d like to pick up and fight. If you’re an IP lawyer with some time to kill, please contact me through the comment thread on the post on my site.

Oh, and Christopher Tolkien can continue to kiss my ass.
- Adam Rakunas
  
  Doh, posted this before I remembered my old BB account.
Josefrancisco

Again, I think if they didn’t have the movie franchise making the movies not many would know who tolkier was! now those lawyers are telling the small green family’s layers how to make big bucks!

We all suffer lose lose lose situation. We just walk into it as a wall glass! again and again.
Murphy’s Lawyer

So what about all the “Tolkien is hobbit-forming” badges that have been around for 30+ years? Why didn’t Christopher sue each and every one who sold those? Eh? Eh? Speak up, Christopher, I can’t hear you…
marco antonio

I have a zazzle store where I upload my shirt designs to, and not long ago they pulled down one of my shirts design depicting orange and blue kitchen utensils because I used the word ‘tron colours’ in the description of the shirt. They said it infringed copyright with the Disney Corporation.

I argued that the offending word was used as an adjective, that there was no way anyone would confuse my design with official merchandise from the movie, and that it was a word in the frikken description – not even the actual design… to no avail. Their house, their rules.

So yeah, Talkien state might suck, but so does Zazzle when it comes to copyright.