The estate and family of the author J.R.R. Tolkien are opposed to the film entitled “Tolkien”, due for release in May 2019, about the author’s early life. They issued a brusque statement on 16 April 2019 declaring their opposition to Dome Karukoski’s film, which stars Nicholas Hoult in the title role and Lily Collins playing Tolkien’s wife Edith, making it clear that they “did not approve of, authorise or participate in the making of this film”, and that “they do not endorse it or its content in any way.”
A spokesperson for Tolkien’s estate told the Guardian newspaper that the statement was intended to make its position clear, rather than “heralding future legal action.”
John Garth, author of the biography Tolkien and the Great War, told the Guardian that he felt the estate’s response to the film was “sensible.”
“Biopics typically take considerable licence with the facts, and this one is no exception. Endorsement by the Tolkien family would lend credibility to any divergences and distortions. That would be a disservice to history,” he said. “As a biographer, I expect I’ll be busy correcting new misconceptions arising from the movie. I hope that anyone who enjoys the film and is interested in Tolkien’s formative years will pick up a reliable biography.”
The Executors of Tolkien’s Will and the Trustees of his Estate have always been very protective about his legacy and have been at the forefront of some high profile litigation cases over the years.
In 2009, the Estate agreed an out-of-court settlement relating to a multimillion-pound dispute for royalties from Peter Jackson’s “Lord of the Rings” films. Then in 2011, the Estate took legal action over a novel called “Mirkwood: A Novel About JRR Tolkien” by American author, Stephen Hillard, which featured Tolkien as a central character. The author applied to a court in Texas to try and obtain a declaration giving him the legal right to publish the novel. The Estate settled the case with him when the author agreed to add a disclaimer with the following wording provided by the Trustees of Tolkien’s estate: “This is a work of fiction which is neither endorsed nor connected with The J.R.R. Tolkien Estate or its publisher.”
The following year, the Tolkien estate also took legal action over gambling games featuring Lord of the Rings characters, saying that it was “causing irreparable harm to Tolkien’s legacy and reputation and the valuable goodwill generated by his works”.
Although J.R.R. Tolkien died in 1973, his publishing never really stopped, thanks to his son and Literary Executor, Christopher Tolkien. For decades, Christopher Tolkien painstakingly catalogued and edited his father’s papers, creating new books out of unfinished and unpublished manuscripts. But Christopher Tolkien has been very clear and consistent in his personal antipathy to any more films being made. He told Le Monde in 2012 that “Tolkien has become a monster, devoured by his own popularity and absorbed by the absurdity of our time”, and that “the commercialisation has reduced the aesthetic and philosophical impact of the creation to nothing”.
It is actually quite unusual for Trustees of a person’s Estate to commence legal proceedings, because there are a number of legal hoops that they have to jump through in order to do so.
When Trustees or Executors wish to commence (or defend) legal proceedings, they usually need to apply to the court for permission to do so, unless they can obtain the agreement of all the beneficiaries to that course of action. Requesting the court’s permission in this way is commonly referred to as a “Beddoe application” after the 1893 case of Re Beddoe. The rationale behind making such an application is not just to obtain the court’s permission to bring the legal claim to court, but it also protects the Trustees, if successful, because the court will declare the costs to be payable out of the trust funds.
A “Literary Executor” is a person acting on behalf of the beneficiaries of an author’s Will, with responsibility for entering into contracts with publishers, collecting royalties and maintaining copyrights, amongst other things.
A Will may appoint different Executors to deal with different parts of the estate. Examples of this are the appointment of a literary Executor to deal with literary effects, and the appointment of a business Executor to deal with the person’s commercial enterprises.
Since the literary Estate is a legacy to the beneficiaries under the author’s Will, the management of it is a responsibility of trust. The position of literary Executor of course extends beyond financial matters, and the author’s choice of literary Executor is often someone who has worked closely with the author during his or her lifetime.
As we have seen clearly in relation to J.R.R. Tolkien’s estate, there can be conflict. What is to be managed by the literary Executor is not just a portfolio of intellectual property, but also a posthumous reputation. Wishes of the deceased author may have been clearly expressed but are not always respected. Family members often express strong feelings about the privacy of the dead. For example, biographical writing is likely to be of quite a different authority if it is carried out with access to the author’s private papers. The literary Executor then becomes a gatekeeper.
Get in Touch
If you would like to discuss the appointment of a literary or business Executor, or if you have any questions about making a Will or arranging your business affairs, please contact Hilary Buckle or Jane Whitfield for further details on 0118 958 9711.