The their federal complaint, Hillard says Cruel Rune published his book, “Mirkwood, A Novel About J.R.R. Tolkien,” in 2010.
In January this year, the Estate sent him a cease and desist letter, asserting claims of intellectual property and copyright violations, and demanding that his book be destroyed.
Hillard’s book is called “Mirkwood, A Novel About J.R.R. Tolkien.”
According to his complaint: “‘Mirkwood’ is both a work of fiction and a critical analysis of the works of J.R.R. Tolkien (‘Tolkien’), author of ‘The Hobbit’ and ‘The Lord of the Rings’ series, among others. As stated in the Acknowledgements section of the Novel: ‘This novel, in addition to being a work of fiction, is also an exercise in literary criticism. It focuses in part on the role of heroines, echoing the sentiment captured by Marion Zimmer Bradley in her excellent review of Tolkien: “The books are, in fact, almost womanless.”‘ ‘Men, Halflings, and Hero Worship’ (1961).
“‘Mirkwood’ recounts the story of six characters. Five of the characters are fictional. The sixth is J.R.R. Tolkien. The story told therein largely takes place from 1970 through near-present day in the United States, and is entirely fictional as noted on the title page.”
Hillard adds: “‘Mirkwood’ is approximately four-hundred fifty pages. Tolkien is only quoted one time in the novel, shown here in its entirety: ‘These creatures live to me as I am creating them. Twere I to finish, they would become wooden, lacking in life. Thus, the tale must go on. It is, after all, one belonging to all who would but participate and find its first steps, beside a secret gate.’
– J.R.R. Tolkien, ‘Letters'”
Tolkien died in 1973.
“The novel is but one of innumerous fictional works that contain fictional accounts involving real people,” according to the complaint. “Others include ‘Blonde’ (with Marilyn Monroe as a character), ‘The Hours’ (Virginia Woolf), ‘Libra’ (Lee Harvey Oswald), and ‘Underworld’ (Jackie Gleason, J. Edgar Hoover, and Frank Sinatra). In fact, ‘Mirkwood’ is not the first work of fiction to include J.R.R. Tolkien – it is preceded by ‘Here There Be Dragons’ and ‘Looking for the King – An Inklings Novel.'” (Parentheses in complaint.)
The Estate’s cease and desist letter stated that it had a property right to commercially exploit the name and likeness of J.R.R. Tolkien, and that it had not transferred those rights to Hillard.
“The Estate also alleged that the cover art and typefaces were similar to J.R.R. Tolkien’s work to a degree giving rise to a cause of action for unfair competition,” according to the complaint.
Hillard’s book cover “depicts a scene of multiple trees dominated by a single tree illuminated by rays of light towering over three unidentified characters seen from behind,” the complaint states.
Hillard and Cruel Rune say their book uses standard fonts, and that the nonstandard fonts on the cover were “not taken from any J.R.R. Tolkien work.”
Hillard and Cruel Rune say they are protected by the First Amendment and the fair use doctrine, and that under Texas law they may use the name of a deceased person in a book. They say the book does not violate copyright, nor does it constitute unfair competition, in the United States or the United Kingdom.
They seek declaratory judgment and costs.
They are represented by Daniel Scardino with Reed & Scardino.
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