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Re: The Wonders of eBay

Subject: Re: The Wonders of eBay
by Findegil on 2013/1/6 9:20:12

To put the history of these publications briefly and to clarify a few points:

The Tale of Gondolin is Alex Lewis's 'completion' of Tolkien's 'Of Tuor and His Coming to Gondolin' in Unfinished Tales, combining Tolkien's text with slight alteration by Lewis, plus Lewis's additions from the notes to Unfinished Tales and the Book of Lost Tales, Part Two. Lewis made two copies of this work and presented one to Priscilla Tolkien as a gift. Ruth Lacon later added illustrations, and the designs were presented to Priscilla at an Oxonmoot. Lewis related the story of how the latter occurred in an interview for the Polish Tolkien society's journal Aiglos (Summer 2012), but we can quote also from Beren's own 2005 article: 'The designs were presented to Priscilla Tolkien and verbal permission was given to produce The Tale of Gondolin as it now is.' Fifty copies were subsequently produced for sale and bound according to demand.

The Ruins of Osgiliath is also Tolkien-based fan fiction by Alex Lewis. This was originally produced as three small booklets of 100 copies each, and as Lewis tells the story in Aiglos, were written so that they could be sold and the proceeds used by the Tolkien Society 'to buy decent presents for Priscilla and Christopher Tolkien for the 1992 centenary conference'. These stories were later collected into a single volume of twelve copies, which also was sold though not as a function of the Society and with a charitable purpose.

Beren is right to bring up the issue of permissions. The problem here is the assumption that Priscilla Tolkien could, or would, unilaterally grant formal permission for an adaptation of her father's work, or (as in Lewis's Tale of Gondolin) lengthy quotations from her father's work, to be published. She cannot; she is only one part of the Tolkien Estate. Even Christopher Tolkien, as appointed literary executor, could not grant such permission by himself, without consultation, especially with the Estate's solicitor. Substantial quotation from Tolkien's published writings also must involve HarperCollins, as copyright licensee. Of course, we ourselves over the years have had many contacts with Christopher and with the Estate's solicitors and with HarperCollins, and this procedure of going through proper channels and obtaining written (not just 'verbal', i.e. oral) permission has always been the case.

garm is also right to point to the statement on the Estate's website, which is unequivocal that it 'never has, and never will authorize the commercialisation or distribution' of fan fiction. From this it follows that The Tale of Gondolin and The Ruins of Osgiliath may exist as a private accomplishment but should never have been produced as distributed publications, whether for profit or not, profit being only one factor in 'fair use' or 'fair dealing'.

garm did not quote the final paragraph of the Estate FAQ statement, but this is also important: 'The Estate exists to defend the integrity of J.R.R. Tolkien’s writings. Christopher Tolkien's work as his father’s literary executor has always been to publish as faithfully and honestly as possible his father's completed and uncompleted works, without adaptation or embellishment.' That is, the Estate also exists to protect Tolkien's moral rights as the creator of his works, against alteration or expansion.

We would point out as well, for as much as it may be worth, that the statement on the Tolkien Estate website about the authorization of fan fiction was added to the FAQ not long after a lengthy discussion about the quality and legality of The Tale of Gondolin appeared on the now-defunct HarperCollins Tolkien fan forum site.

In Aiglos, Alex Lewis was asked his opinion about 'the restrictions concerning the names invented by Tolkien or fragments of his texts, imposed by the Tolkien Estate', and he replied that it was 'hard to say for certain' how 'legally valid' the Estate's claims may be. 'There is such a thing as "fair use" - which says you can use ten percent of a text without breaking copyright if it is for a legitimate purpose, such as research etc. The problem we have is the Estate is very rich and can employ more lawyers than most of us. . . . Is a person's own creativity fair use? For me the answer is emphatically yes! . . . All that can be said is copyright runs out. They can't prevent artists and creativity forever.' In fact, the 'ten percent' rule for fair use is merely a rule of thumb which some may arbitrarily apply and which a copyright holder need not approve. Nor can an artist plead 'creativity' and freely use someone else's intellectual property, however much he may wish it were so.

In regard to the quotation or reproduction of Tolkien's letters online, which Khamûl brings up, it's an acknowledged grey area of law when it comes to letters being sold, online or in catalogues. Quotation or reproduction for other purposes, of letters or complete poems or what have you, is another matter entirely.

Wayne & Christina
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