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Can J.R.R. Tolkien’s receive a copyright for Beowulf?

Beowulf Tolkien Copyright translation

A previously unpublished Beowulf translation by J.R.R. Tolkien, will be released this May, almost 90 years after it was written. Beowulf is the longest epic poem in Old English, dated to the early 11th century.  It is an epic fantasy telling of how Prince Beowulf came to the aid of Danish King Hroogar to slay the monster Grendel. This begs the question: how can the Tolkien Estate hold a copyright in a translation written almost a century ago, of a story written in the 11th century?  It has to do with these two words: unpublished and derivative.

Tolkien died in 1973, and while being able to see Lord of the Rings and the Hobbit reach a height of popularity, he left many unfinished and unpublished works. While Tolkien wrote a great deal of work unpublished works surrounding middle earth, creating lengthy histories for almost every name mentioned in his novels, he also created numerous works, not related to Middle Earth, including the definitive edition of Sir Gawain and the Green Knight, and translations of the Book of Jonah and the Jerusalem Bible. Tolkien was after all, the Merton Professor of English Language and Literature, at Merton College, Oxford. Tolkien’s 1936 lecture “Beowulf: The Monsters and the Critics” is said to have changed scholars’ view of Beowulf as a complex work dealing with human destiny rather than a childish fantasy.

Tolkien’s 1936 lecture “Beowulf: The Monsters and the Critics” is said to have changed scholars’ view of Beowulf

For Beowulf, Tolkien reimagined the story, creating a unique translation. Beowulf itself is in the public domain, free for anyone to use. Yet, a translation is considered a derivative work incorporating preexisting work but as a new expression of original authorship. So Tolkien’s copyright is not in the original story, but in the translation itself; the way he chose to put the words together and the additional story elements he chose to add. So while anyone can make a Beowulf film, comic book, musical, or anything else related to the Beowulf story, nobody can use Tolkien’s translation to do it.  The translation is a copyrighted work.

But what about that fact that Tolkien’s translation was written in 1926? The copyright duration, at that time, lasted only 28 years, but could be renewed another 28 years. Plus, the work had to be registered with the Copyright Office and display a © copyright notice, which probably was not present on an old manuscript. The key for Tolkien’s copyright is that the work was never published. With the Copyright Act of 1976, works that were created but neither published nor registered in the Copyright Office before Jan. 1, 1978, acquired a new term of protection that was the life of the author plus 50 years, amended in 1998 to life plus 70 years. Since Tolkien died in 1973, any of his unpublished works will retain copyright until 2043, if published. While Tolkien’s son, Christopher, only edited the Beowulf translation, he completed and published many of his father’s unfinished works, such as the Silmarillion and the Children of Hurin. Works with additional Christopher Tolkien material can receive copyright protection for 70 years after Christopher Tolkien’s death. He is 89 years old.

Tolkien’s Beowulf is a clear example of how copyright protection can benefit not only the author but the public in general. While it would be nice if the Beowulf translation, (and the Tolkien lectures that will part of the final release) were released into the public domain, it isn’t very likely that Christopher Tolkien would have taken the time to edit the material and release it to the public without the exclusive right available through copyright that ensures some compensation for his labor.  Without his work, Beowulf may have been released in its manuscript form, useful to scholars, but not available in a way the public could enjoy. Some would argue that copyright extending for 70 years after the life of the author is too long and a shorter term would be better for society.  That is another question entirely, and the focus of some debate.  But in this case, copyright as it stands helps provide the public with a new Tolkien work, and that is a good thing.

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at steve@orangenius.com. His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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