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Mirkwood might be the next novel ripped from your Kindle

You should go buy it now and get in on the fun.

I don’t normally promote books on this blog, but the legal fight over this one caught my eye.

Mirkwood: A Novel About JRR Tolkien is a work of fiction, and it’s it’s getting a lot of attention right now it has JRR Tolkien as a character. Hopefully you recognize the name; he wrote a series of 4 novels a while back called The Lord of the Rings.

Tolkien is dead, of course, but his estate is suing because he’s in the book. Their claim is that the novel violates his publicity rights. This is a rather odd section of law, and it’s a little too complicated to cover here. But let me give you one example of publicity rights: You can’t use someone’s image or persona to promote a product without permission (and some money usually).

What’s odd about this is that he’s being used as a character, not for the sake of publicity. The Tolkien estate don’t have a strong case here. And it’s even weaker considering that the legal concept (of dead people having publicity rights) is not all that well established.

At this point there is no lawsuit – yet. The only legal proceeding was filed by Mr. Hillard, and he’s seeking a judgment that says he didn’t do anything wrong. If you want, you can find a copy of his lawsuit on Scribd. It’s interesting but straightforward.

But as you probably know, Amazon have pulled ebooks from Kindles before. If this case goes against the author, Amazon will be pressured to take back the Kindle edition you bought.

I really do want you to go buy it, and it’s only $3 on the Kindle. I figure that if the Tolkien estate get their way,  the print edition will get pulped. When Amazon try to yank the Kindle Edition we can cause an uproar.

Plus, I don’t like that law in principle, and I really don’t like how the Tolkien estate is being a bully.

Mirkwood (novel’s website)


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Mike Cane March 13, 2011 um 3:24 pm

>>>And it’s even weaker considering that the legal concept (of dead people having publicity rights) is not all that well established.

That’s not exactly so. Many stars' estates have licensed their rights. So when you see, say, Marilyn Monroe or someone in a TV ad, there’s coin exchanging hands there. This is for likenesses, however. Don’t think they have any kind of case in this text-only instance.

Nate the great March 13, 2011 um 3:34 pm

But there’s no federal law on this, and only a few states have laws covering publicity rights for dead people. For the most part it’s based on judges decisions, not law.

Garret March 13, 2011 um 3:43 pm

But how is the book excluding the law involvement?

Tyler March 13, 2011 um 11:10 pm

A recent example is John Dillinger’s rights of publicity, as seen in Ken Phillips, Mark Phillips and Dillinger’s, Inc. v. Jeffrey G Scalf, a 2003 Indiana Court of Appeals case. The operators of Dillinger’s restaurant are alleged to have violated the right of publicity of Jeffrey G. Scalf, the grandnephew of the 1930s gangster and bank robber John Dillinger, in using without authorization Dillinger’s name, image, and likeness in connection with the restaurant.

Nate the great March 14, 2011 um 7:11 am


Indiana is one of the few states to have a law for this, and Dillinger is most of the reason why.

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