Category: Politics

A few weeks back, Tom Spurgeon had this to say:

[F]or some reason I ended up with this Christopher Tolkien Le Monde interview in my bookmarks folder. It's instructive to read something about a family wanting certain rights returned or better rewarded when most people really like what's been done with those rights as opposed to their either not caring or actively hating the result. One of the reasons a lot of our comics-related issue discussions remain unsophisticated is that we frequently choose to fight our battles along fundamental "I like it"/"I hate it" lines and then kind of furiously stare at the other issues involved until we can find a way to make them comply to our initial impression. It's no way to move forward.

He's not wrong. Given my established stance on creators' rights -- and creators' heirs' rights -- I'd be remiss in not confronting this conundrum.

Now, I like the movies. They're not perfect (The Two Towers, in particular, completely botches the narrative arc, overemphasizing the importance of Helm's Deep and an inexplicable new Osgiliath subplot while shunting the two actual climaxes of the book to the first act of the third movie -- and in one case, removing it from the theatrical cut entirely), but on the whole they're really pretty good. But yeah, there are some uncomfortable facts surrounding them.

To reiterate: my stance is that copyright law lasts far too long; in my opinion The Hobbit should have been public domain by now. But given that it isn't, we should respect the rights of the creators -- and given that, in this case, JRR Tolkien is no longer with us, we should respect the rights of his heirs. For legal purposes, the Tolkien Estate is JRR Tolkien.

But there are a couple of other factors at work here, too.

It was JRR himself who sold the film rights. Willingly, and with the intent to make sure his heirs were cared for financially.

That said, he was taken advantage of. Ever hear of the first ever Hobbit movie? It was made in a month, ran 12 minutes, and was only screened once -- because Tolkien's lawyers were incompetent, and left a loophole allowing the studio to retain the rights to Lord of the Rings as long as they produced a full-color film by a given deadline. Length and distribution were not specified; a 12-minute movie screened once satisfied the contract.

It wouldn't be the last time lawyers worked to game the system. Forty years later, Warner would produce the blockbuster Lord of the Rings film trilogy, and, through the usual Hollywood creative bookkeeping tactics, claim that it had not turned any profit and therefore they didn't owe any money to the Tolkien Estate. It took a lawsuit for the Estate to receive any money from the films.

(This is the point in any creators' rights debate where some corporate apologist inevitably explains to me that publicly-traded companies are beholden to their shareholders and therefore obligated to hoard as much money as humanly possible and do everything they can to avoid paying a single cent more than they have to. Why, it would be unethical for them not to try and get out of paying the Tolkien Estate! I welcome any such apologist to explain to me precisely how it was in Time Warner shareholders' best interest to expose the company to multiple lawsuits -- not just from the Tolkiens but from Peter Jackson and Fran Walsh, who New Line also tried to stiff -- and trap The Hobbit in development hell for the better part of a decade, to the point where it appeared for quite some time that it wouldn't get made at all.)

And there's one more sad old saw that the apologists like to trot out: "Well, what did the heirs ever do?" That's one I see a lot in the conversations about the heirs of Jack Kirby, or Jerry Siegel, or Joe Shuster, et al.

I think it's a hollow argument. Creators do their work expecting to leave something for their families, and dismissing heirs outright effectively means giving luck-of-the-draw based on the age at which a person dies. (Do you believe Jack Kirby should have received money from The Avengers if he had lived to 95, and would have left that money to his children? If so, why do you believe his children don't deserve that money just because he died at 76? If not, then what the hell does it matter whether his heirs did the work or not, if you don't think the guy who did do the work shouldn't have been compensated for the adaptation?)

But even if you don't buy that line of reasoning, well, this is one case where "What did the heirs ever do?" is a pretty piss-poor rhetorical question. Because in this case the answer is "Assemble, edit, and publish about 30 of his books." Make no mistake -- Christopher Tolkien hasn't simply sat back and waited for checks to roll in; he has made it his life's work to get as much of his father's work into print as humanly possible. And it's not so simple as just finding old pages and retyping them -- many of the writings are fragmentary, and many would be incomprehensible without Christopher's extensive annotations. Without his work, Tolkien's body of published work would be far poorer.

Actually, that brings up another point entirely: the Hobbit movie isn't simply an adaptation of The Hobbit. It includes material from Unfinished Tales -- a book which I'm fairly confident Warner, MGM, et al do not have the movie rights to.

Now, I'm sure Warner's got very expensive lawyers on this. And maybe I'm misremembering -- it's been years since I read Unfinished Tales, longer since I read Lord of the Rings, longer still since I read The Hobbit. Maybe the LotR appendices have enough information about the Fall of Erebor, how Thorin earned the name Oakenshield, Gandalf's meeting with Thráin, and the White Council that Jackson, Walsh, Boyens, and del Toro can plausibly claim that they only adapted material from The Hobbit and LotR -- but if I were the Tolkien Estate's lawyers, I'd be poring over the movie right now looking for material from Unfinished Tales and any other posthumously-published Tolkien work that the studios never bought the rights for.

All that said? I like the LotR films and the Hobbit film. I'm sorry that Christopher Tolkien wishes they didn't exist, and I feel a little bad about that. I feel worse still about how the studios have treated the Tolkien Estate, and I believe it's genuinely unconscionable that they tried to stiff them out of compensation for the films. And yes, I suspect that the latest movie does adapt material from books it's not legally allowed to. (I'm also none too happy about the reports of union-busting and animal mistreatment, come to that.)

Stuff like this is personal. I believe that, for example, The Avengers hit a point where I couldn't in good conscience pay to see the movie; I believe that The Hobbit, despite the caveats above, did not. I believe the point that Tolkien's heirs do get a substantial amount of money from their father's work -- even if they had to go to court for some of it -- while Kirby's and Heck's heirs don't is a major reason for that. Spurgeon's point is intriguing -- but I really do like to think I've formed my opinions based on the circumstances of the dispute, and not simply looked for facts that made me feel good about seeing a movie I already wanted to see.

tl;dr I think The Hobbit was pretty great. There are some uncomfortable things going on behind the scenes and we should think about those. Personally I don't think they justify a boycott -- but everyone should be aware of them, consider them, and come to their own conclusions.