Those wacky Americans, and their disrespect for dead authors. Or those wacky Brits, and their stuffy, closed-minded attitude to the free-wheelin’ democratic attitude of their estranged children. Or perhaps a third option, something like ‘those wacky D-grade authors and also those wacky lawyers.’

The Guardian reports that the Tolkien Estate are suing the American author Steve Hillard of Mirkwood: A Novel about JRR Tolkien because they never granted the author “permission to use the name and personality of JRR Tolkien in the novel, nor would they in any foreseeable circumstances.” Which seems like a pretty solid reason to sue someone, frankly.

Hillard and his lawyer spring to his defence by claiming that it’s awful unfair that they had to get permission to use Tolkien’s likeness as a key portion of the novel- after all, there are movies about World War Two which feature Churchill! No-one ever has to get permission for that, do they? I wonder if that is even true?

Unfortunately, it is a bit of a false comparison. Tolkien is a dead author, one whose Estate keeps a very firm (if generally quite fair) grip upon his literary legacy. Part of that literary legacy is the man himself, who, as an Oxford professor, wrote letters and lectures and other items which must be protected as intellectual property. I know nothing about intellectual property law, but I wager that the name itself bears such weight that it is trademarked.

Contrast Churchill- a powerful political figure, the war-time leader of a nation, a man who shaped history with his bare hands. Using anything Churchill wrote without the permission of his heirs (or the government, whomever has the rights to it), but I seriously doubt that the personage himself would have the same protections.

Tolkien, for all that he helped bring ‘fantasy’ into the modern world, and for all of his excellent academic credentials, simply is not an historical figure on the same scale. He is just some chap’s grandfather- and as someone who also had a grandfather, I’d be a mite annoyed if his likeness was a major supporting role in a novel. I might not sue over it, but my grandfather did not leave me a legacy which must be maintained against the ravening hordes.

Hillard seems to think that Tolkien would be on his side in this, saying that “His stories were unearthed from his research,” so therefore he “would be somewhat concerned about attempts to stifle works that borrow from history.” Considering how private a man Tolkein was, I find this declaration highly suspect. Tolkien’s historical (more like mythological) borrowings were from anglo-saxon history. The professor would certainly be on Hillard’s side if Hillard had published the book in the year 3012 CE; by then the Estate would be as defunct as the Scefingas, descended from Scyld.

My favourite part of this is what Hillard’s lawyer had to say:

His lawyer, Daniel Scardino, said: “Just imagine a world where you can’t talk about celebrities, where you can’t put celebrities in works of authorship, whether fiction, non-fiction, literary criticism or otherwise, where somehow their celebrity status insulates them from criticism … That’s the real concern.” The estate’s demands were “wholly without legal basis”, he added.

Actually, I can imagine such a world. What a wonderful world! None of those ridiculous magazines, newspapers which dispense news, television news broadcasters who talk about something I actually fucking care about. Oh, for such halcyon days to come again!

More seriously, the Tolkien Estate is not demanding that Hillard -or anyone else- cease talking about Tolkien, or putting him in works of non-fiction, literary criticism, or shielding the man from criticism in any way. That’s ridiculous. The man made a career out of academia; neither he nor his estate are demanding that you no longer cite his works in appropriate non-fiction contexts! For one thing, the field of Tolkien Studies would disappear overnight, and that’s never happening.

No, the Estate just wants Hillard to leave their literary grandfather out of his little, self-published, barely-selling, author-insert, piece of pulp.

Frankly, I wish the same.