Filming Possibilities

A completist’s cinematic tour of the LOTR world might include Tolkien’s The Silmarillion Movie, a collection of universe-building mythology edited and posthumously published by Tolkien’s son Christopher in 1977. The problem, Jackson says, is in who controls the rights to the work. “The Silmarillion Movie is the big volume, but that’s owned by the Tolkien estate,” he said. “It’s not owned by Warner Bros. or MGM — and I don’t think the Tolkien estate are very fond of these movies, so I wouldn’t expect to see The Silmarillion Movie any time soon.”

malickfan wrote:According to this article, the copyright to to The Silmarillion IS in Christopher Tolkien's name, so (if I understand things correctly) he could open a separate trust deed for it, and later works, ensuring they don't pass into the public domain until 70 (or longer if copyright extension is taken into account-I think the copyright on the Sil was renewed by the 2nd edition in 1999) years after his death.

http://nerdalicious.com.au/books/why-peter-jackson-will-never-film-the-silmarillion/

http://www.tolkienlibrary.com/press/1180-on-the-possibility-of-a-silmarillion-movie.php

Even if the Tolkien Estate did have a change of heart and agree to sell the rights/co-produce a movie, I can't help but wonder why Warner Bros or Jackson would agree to it-the amount of legal wrangling, financing and production issues are mind boggling in them selves, not to mention a decreasing profit margin, the pressure to out epic The Hobbbit, (not to mention a far smaller fanbase than LOTR, the well known views of the author, and the dubious issues of adapting what is in effect an adapation of Tolkien's own drafts) and the on going legal issues.

On the other hand, if the estate decided to produce an adaption of their own in house, it could be seen as cashing in, or a bitter move for fans of Jackson's films.

I really can't see the benefit or likelihood of this happening, but I'm not going to entirely dismiss the idea of it-the Tolkien Estate are apparently backing one of the Biopics in pre production at the moment...

Eldorion wrote:I hadn't heard anything about the Estate being involved with the biopics, but I haven't been following those closely anyway.  Was there an article or something you could share?  I'd be curious to know more.

A clarification on copyright: Christopher Tolkien holds the authorial copyright on The Silmarillion, not J.R.R. Tolkien. Harper Collins has confirmed with us that, under current copyright laws, the copyright will therefore not expire until 70 years after Christopher’s death, and not in 2043 when the copyright on the works of J.R.R. Tolkien will expire. (Updated 25/01/14)

Bluebottle wrote:Yeah, were in agreement on that. And I think we might have talked about it before.

I'm surprised though that it refers to Christopher as the sole copyright holder. As the Silmarillion must obviously be seen as a combined work with JRR. Now, I don't know exactly what happened in as much as Tolkiens inheritance, but I'd say it's more than likely the Silmarillion copyright of JRR Tolkien is in the hands of the Estate. And I'd think that means that while they're effectively both in the hands of one person now, Christopher, that might not necessarily be the case in the future..  

These discussions keep coming round because most people are not familiar with estate law and misunderstand Christopher Tolkien's role and powers. That's doubly understandable because he has two separate roles.

(1) CRRT is Tolkien's literary executor. As such, he was granted by JRRT total control over JRRT's unpublished manuscripts. He could burn them, edit them, rewrite them, publish them as is, or whatever he deemed best. JRRT had complete confidence in Christopher's judgement on these matters. Thank goodness he did NOT decide to burn the lot! What he will ultimately do with the remaining unpublished material is unknown, but he has probably made arrangements for them, possibly to donate them to a university collection, a la Marquette.

(2) CRRT is the executor/trustee of the Tolkien Estate and Trust. This is a clearly defined legal role: he is entrusted with carrying out JRRT's instructions in founding the Tolkien Estate (which is, confusingly, not the same thing as Tolkien's personal estate. You and I and most people when they depart this earth leave behind a personal estate of varying value, which is dispensed in accordance with a will if there is one. The Tolkien Estate and Trust however is a different kind of organization, a family estate trust, which is completely separate. However, the person who set it up (the settlor) stipulates what the estate trust will do and its operational parameters. The executor/trustee must follow these directives. He or she cannot override them. These organizations are audited and monitored for compliance..

CRRT's two roles are very different. In the first, he has considerable, virtually total, discretionary power. In the second, he has very little.

Now, PPP made the point that Tolkien sold the film rights to LOTR and The Hobbit to United Artists "because he needed the money." This is true, but misleading. WHY did he "need the money?" He was doing very well, thank you, since after his retirement from Oxford he was getting substantial income from royalties, and for the first time could provide his wife with pleasures that meant a lot to her (he moved to Bournemouth, where she enjoyed living in a resort setting and mixed with a less intellectual set. Edith never really felt comfortable in Oxford).

So why did he need a large sum of money? Not for himself, but to set up the Tolkien Estate and Trust. You need money to do this. He established trusts for each of his children and grandchildren (and made provisions, we can be sure, for ones not yet born), provided for a charitable arm of the Trust, and in a document usually called a trust deed he specified the purpose, activities and restrictions on the operation of the TE, to take effect on his demise. It's purpose, as the TE endlessly repeats, is to "promote and protect JRRT's literary legacy." We can be sure that came direct from JRRT himself, and it is likely -- because it is one of the purposes of establishing an estate trust for intellectual property -- that it also restricted sale of copyrights or other rights to any of his literary works.

This is a major reason why authors set up an estate trust before their death: to control their intellectual property. It's kind of ironic that in order to set up a mechanism to prevent sale of film or radio rights to his works, Tolkien had to sell the rights to some of his existing works -- but it's not really a contradiction. JRRT did view both TH and LOTR as "commercial" ventures (not in a negative sense), and said to friends that popular success had been surprisingly gratifying, as it had enabled him to give his wife a better life and for both of them to enjoy small pleasures that they would earlier have been unable to afford. But his other works, including and especially The Silmarillion, were another story. He authorized Christopher to burn it, but not to sell movie rights to it!

The trust deed that set up the TE is not a public document, so his exact instructions cannot be verified. However, it is a virtual certainty that he included prohibition on further sale of film rights, copyrights or authorization of commercial products. The TE board of directors cannot overturn its founder, and even when CRRT passes on to Valinor the next director/executor/trustee will have to follow JRRT's instructions as well. He or she does not have a choice.

Those who are hoping for some change of policy after CRRT's death are hoping in vain. Even if a band of film buffs succeed to the board of the TE, they will not be authorized to overrule their founder.

Beyond that, since under UK law Christopher is a joint author of the Sil, he can make it a condition in his own estate that the rights not be sold.

So expecting a change of policy is a vain enterprise. Legally, it can't happen. We will just have to wait for the material to go into the public domain, which it will -- someday.

Meanwhile, if anyone were keen to do it, further Middle-Earth films could be made from the stories in the appendices to LOTR. I doubt there's a market, though]

The trust deed that set up the TE is not a public document, so his exact instructions cannot be verified. However, it is a virtual certainty that he included prohibition on further sale of film rights, copyrights or authorization of commercial products. The TE board of directors cannot overturn its founder, and even when CRRT passes on to Valinor the next director/executor/trustee will have to follow JRRT's instructions as well. He or she does not have a choice.

Beyond that, since under UK law Christopher is a joint author of the Sil, he can make it a condition in his own estate that the rights not be sold.

Legally, it can't happen. We will just have to wait for the material to go into the public domain, which it will -- someday.

Bluebottle wrote:I'd say improbable, not "it can't happen."

It does not quite clear up the situation with the Silmarillion though. Or where JRRs copyright lies. Personal Estate? Public Estate? Either way it could lead to two different people controlling each of those two copyrights at some points, but as that IMDB thing say, they're course of actions will be limited by the limits Christopher and JRR respectively have set.

Eldorion wrote:

Bluebottle wrote:It does not quite clear up the situation with the Silmarillion though. Or where JRRs copyright lies. Personal Estate? Public Estate? Either way it could lead to two different people controlling each of those two copyrights at some points, but as that IMDB thing say, they're course of actions will be limited by the limits Christopher and JRR respectively have set.

I don't know how definitive it is, but the copyright page in my edition of LOTR (the 50th Anniversary paperback version) lists the original copyright as belonging to J.R.R. Tolkien (naturally), and the renewal in the 1990s as belong to his children: "Christopher R. Tolkien, Michael H.R. Tolkien, John F.R. Tolkien and Priscilla M.A.R. Tolkien". I'd imagine they represent the Estate in that capacity, though I can't be certain. As for the posthumous works, I don't have my copy of The Silmarillion with me, but this version on Amazon lists the copyright as belonging to "The J.R.R. Tolkien Copyright Trust and C.R. Tolkien", which I suppose meshes with the coauthor idea.

Eldorion wrote:

Bluebottle wrote:I'd say improbable, not "it can't happen."

Yeah, this is probably the more accurate statement, but I would say the probability is so slim as to be mostly negligible.

Bluebottle wrote:So, it lists the current holders of the copyright. That makes sense, as it would be them who licenced the use of the work by the publisher.

Also the Silmarillion one kind of confirmes that Harper Collins statement as being wrong.

Thank you.