Back in 1975 I was asked to do a cover for a fan publication of songs from (and about) The Lord of the Rings, to be called "The Middle-earth Songbook." I was doing a lot of fan art in those days: artwork done for the enjoyment of it. . . the fun of seeing it in print. A lot of it was centered around Tolkien’s work. His fans were legion. He was worshipped. The countless fan-published little magazines were an homage – a tribute – to an author they loved. Many of my fellow fan-artists contributed willing to them. Our payment: a copy of the publication and the thanks of the editor, and the knowledge that fans out there enjoyed our work. As the controversy over the Ace editions versus the "authorized" Ballantine editions had brought the books to the notice of the general public, even so they made it obvious that – to all our dismay – Tolkien had lost the U.S. rights to his work.It is important to note that the many fan publications were never intended to capitalize on that fact. Except what their publication cost their editors, there was no capital involved. No one realized a cent of profit from these fanzines. Similar publications glorified Star Trek, Edgar Rice Burroughs, Robert E. Howard, etc. They were produced to praise their subjects, not to make a buck off of them
I liked the cover I designed for The Middle-earth Songbook: enough that, when I got the original back, I added color to it and included it in the book of my work, "Upon the Winds of Yesterday," published and copyrighted by Donald M. Grant and released at the World Science Fiction Convention (MidAmeriCon) in Kansas City, Missouri in 1976.
It was a limited edition of 1500 copies and quickly sold out. And that was that.
I still own the original of that piece. I still like it. Since the title lettering is a part of it, I never figured it would have had a market anyway. Who would want to hang on their wall a picture, no matter how pretty, which included such an esoteric title?
Then, a few years ago, my long-time friend Cora Lee Healy, a well-known fan artist herself, volunteered to do a fan web site for me. This was totally non-commercial: a showcase for some of my work. One of the many images she chose to display was that almost-thirty-year-old cover for The Middle-earth Songbook.
At a later date, casting about on the internet, Cora discovered a company called CafePress.com . It markets a great variety of products: T-shirts, tote bags, coffee mugs, note pads, tiles, jewelry boxes, etc. The products are not imprinted until someone actually orders one, so there is no great outlay of advance funds, and no stock to sit in a warehouse and grow old. Artists create their own product designs and they are shown – in simulation – on the web page to let the customer get an idea of what the item will look like.
Cora, with my enthusiastic approval, selected a great number of images from my published works, and that little painting was among them. The illustration, minus the title lettering, is square: ideally suited for such things as tiles and jewel boxes, and readily adapted to T-shirts, mugs, etc. And – for no other reason than that it was the title of the panting – it was listed on the web site as "The Middle-earth Songbook."
Certainly we were aware of the resurgence of interest in The Lord of the Rings due to the success of the truly marvelous movies made from it. But my little painting, done so many years ago, bore no resemblance at all to any image in that film. It was my view of an elf lady and two little guys playing harp and flute, and singing in a sunlit garden. So a connection with the film was neither intended, nor truly even imagined.
It was with astonishment that we heard from CafePress.com that they’d been threatened with a lawsuit if they continued to market anything at all with that image imprinted on it. It infringed on copyrighted material. No, we were told, changing the title won’t make any difference. The image itself infringes on the copyright and the trademarked subject matter.
So I wrote to the lawyers. You can read my letter. . . and their reply.
They claim there is "considerable dispute" over whether or not The Lord of the Rings ever was in public domain. Of course it’s disputed. They are disputing it. But even if it was, they say, a renewal has been granted by a new law passed in 1994 which somehow supercedes the 1976 copyright on my painting. I presume, if that is so, a percentage of the sales of my book, Upon the Winds of Yesterday, are due to Tolkien Enterprises because that image – as well as a couple of others – infringed (so many years ago) on a copyright "restored" in 1994: eighteen years later.
I didn’t know such things could be made retroactive. I don’t believe they can.
But CafePress.com doesn’t dare run the risk of a lawsuit, and the small amount of money I might have made from the sale of a few items certainly doesn’t justify my rushing to court over it.
So they win.
They don’t win fair, but they win.
Since they feel the subject matter – elves and dwarves – infringes on their trademarked territory, I’m waiting to read in the news about their lawsuits against all of the countless role-playing games which involve elves, dwarves, trolls, dragons, and the rest of the ages-old folklore from which J.R.R. Tolkien drew, and which the holders of his copyrights now feel they rightfully own.
How long before the Disney Studios will be sued for Snow White and the Seven Trademark Infringements? To say nothing of the so-Lord-of-the-Rings-like images of The Black Cauldron.
Back in the late sixties and the seventies, while Tolkien was still alive, thousands of pieces of artwork were produced and published glorifying him, his creations, and the world he’d made so real. If any of them ever made back the expenses of their publication, I never heard of it.
But now – after his death, and because of the phenomenal success of the movies – he and his creations are being merchandised in every possible way. And – because of the millions of dollars involved – the honestly loving images produced so long ago must be threatened by lawsuit and buried.
I wish I had the capital – and the time left in my life – to fight it. . . just for the principle involved. We weren’t trying to capitalize on his creation; we were paying tribute to it, while he was still alive, to show how much he and his works were adored.
It must seem incredible to have – however disputed – the rights to such wonderful works now that their creator is no longer around to claim his rightful share. I do remember that - surprising a lot of people - he wasn’t always pleased with others’ interpretations of his characters, feeling that his own illustrations for The Hobbit were perfectly adequate. That makes me wonder how pleased he would be today to see how those who control the rights to those works are merchandising them and reaping such profits as he himself never dreamed.
But a creator has one great advantage over those who can only profit from the creations of others. He can create. And I, as limited a creator as I may be, can re-paint my thirty-year-old picture and name the new piece something else entirely. If challenged, I can certainly claim that the pretty, pointy-eared lady is actually a rare, blond Vulcan or Romulan (and wait for the Star Trek people to threaten lawsuit.) The little guy in front is short. So what? There are short people. The one with the sheet music? Well, for years people have told me that he looks like me. . . that I was unconsciously painting a self-portrait. Okay; he is me. And whether or not I have furry feet. . . well, who can say? They don’t show in the picture. And the title? How about "Celtic Concert?" Whose trademark does that step on?
George Barr