Several years ago, my 1976 biography J.R.R. Tolkien, Architect of Middle Earth, about the Oxford professor who wrote The Hobbit and The Lord of the Rings, went out of print.
For more than three decades, the biography had gone through several editions and numerous printings, had been issued as both a hardback and mass market paperback, and had been translated into a half-dozen different languages. (Besides being the very first biography of Tolkien, its other, somewhat dubious distinction, was that shortly after the biography appeared, it became the most stolen book out of libraries!) My book enjoyed modest but consistent sales for most of its editorial lifetime, which peaked with brisk sales (and very decent royalties) with the release of Peter Jacksonís trilogy of Rings movies. Then my bookís original publisher, Running Press, was acquired by the Perseus Books Group, which allowed a number of its older titles to go out of print.
Thirty-six years in continuous publication is a damn good run.
According to my original contract with Running Press, should the book go out of print, all rights would revert back to me. Which they did. Since The Hobbit movies were in production, I decided to capitalize on Tolkienís reemerging popularity by revising and expanding my original biography, which would then be reissued as an eBook. Whatís more, we were going to distribute it for free, as a way of publicizing our new boutique publishing house, Pixel Hall Press.
However, donít look for any re-issue of J.R.R. Tolkien, Architect of Middle Earth on Amazon or B&N or Apple, or anywhere else for that matter. You wonít find it. Thatís because I never finished the revision. The reason why it never got off the ground has nothing to do with laziness or writerís block. Itís because we couldnít risk publishing it, for free or no.
Back in 1975, as part of my original research, I had as a matter of course contacted the Tolkien family. I had hoped to interview them about their famous father, as well as seek access to Tolkienís private papers and letters. What I didnít know at the time was that Christopher Tolkien had contracted with Humphrey Carpenter to write an ďofficialĒ biography, and he wanted to actively discourage and frustrate all other would-be biographers from the field. Therefore he responded to my first request with a curt, nasty letter suggesting that I abandon the project. A follow-up letter that I sent elicited an even nastier, threatening letter that informed me that I would have no success in my research, and I could expect no cooperation from the family. Whatís more, he informed me that none of Tolkienís personal and academic associates would give me even the time of day. Indeed, as I later discovered while in Oxford, most of Tolkienís close associates had been specifically asked by Christopher Tolkien not to talk to me. Fortunately, enough of his old friends thought that was contrary to their sense of academic freedom and openness, and agreed to be interviewed at length.
As I continued my research in London and Oxford, my publisher applied to Houghton-Mifflin, Tolkienís American publisher, for permission to quote from The Lord of the Rings and other of Tolkienís works. It was denied. However, I discovered that, though all subsequent editions of the Rings trilogy are copyrighted, the original American edition had been imported improperly, and technically, was therefore uncopyrighted. (You can read all the details in J.R.R. Tolkien: Architect of Middle-earth, which can still be found in second-hand bookstores and probably on Amazon.). I managed to track down a copy of the uncopyrighted version. (Itís a paperback that had been briefly published by Ace Books, until the release of an official Ballantine Books paperback edition, as well as unfavorable publicity, persuaded Aceís publisher, Donald Wollheim, to let it go out of print.) So, all my quotes from The Lord of the Rings came from that well-worn uncopyrighted paperback. As for excerpts from other Tolkien works, my publisher applied the Fair Use doctrine that permits use of limited excerpts of material without requiring permission from or payment to the copyright holder.
In the biography, I quoted extensively from other authorsí and literary criticsí work; my publisher received and paid for permission to use those excerpts.
Iíve been told that Christopher Tolkien was quite incensed when my book came out (especially when it was published well ahead of the ďofficialĒ biography, and generated excellent reviews). Tolkienís English publisher, Allen & Unwin, sent Running Press several letters threatening to sue; they also demanded that Running Press cease publication of my book immediately and remit all profits to them. My publisherís lawyers believed that we had a strong legal and moral position, so they ignored the threats. They were right Ė Allen & Unwin never followed through with legal action.
Fast-forward to late 2012. In order to further protect the copyright of valuable properties that would otherwise enter the public domain (most notably, Disney protecting Mickey Mouse et al), Congress decided to close a loophole that retroactively extended copyright to works whose original copyrights had been flawed. This meant that the uncopyrighted version of The Lord of the Rings that I had been forced to quote from is now copyrighted. Emails that I sent to the publisher asking for permission to include quotes from the Rings in what I hoped would be the new, expanded, free edition of my Tolkien biography have gone unanswered. To make matters worse, itís common knowledge in the publishing industry that the Tolkien family is notoriously litigious toward any perceived threats to their franchise.
To assess how much trouble I would be in if I published a revised eBook biography, even if I made it free to everyone, I first outlined my dilemma to a trio of lawyers doing pro bono work for the New York Foundation of the Arts (NYFA). Unfortunately, none of the NYFA lawyers were copyright attorneys, so they were unable to give me a definitive answer. Then, as a member of The Authors Guild, I sent a lengthy email to their copyright lawyer. Her advice: forget it. It may be a grey area, legally speaking. But thatís not the problem. We simply donít have the resources that the Tolkien family and their publishers have. Responding to any suit from them, whether sound or not, would involve hiring a lawyer and appearing in whatever court has jurisdiction. (With a book that would be distributed over the Internet, that could be in any state, including faraway Alaska and Hawaii). Even if we won, the costs could bankrupt us.
So that is why you wonít be reading a new edition of J.R.R. Tolkien: Architect of Middle-earth.
By the way, just for the record, though I loved the three Lord of the Rings movies, I think that The Hobbit movie was terrible.