Umm, The Sword of Shannara is explicitly set fifteen centuries after World War III, its sequel features a pilgrimage to the ruins of San Francisco, and Tolkien's trolls didn't wear radsuits. No judge or trial jury outside the British Commonwealth not otherwise in Tolkien's or his attorneys' idiomatic back pockets would give that lawsuit the time of day, not even his biggest American fans.

I'm not talking about the sequel. Elfstones is fine - the issue is Sword. Which has... Frodo, Sam, Gollum, Gandalf, and Tom Bombadil, among other things:

https://en.wikipedia.org/wiki/The_Sword_of_Shannara#Similarities_with_The_Lord_of_the_Rings
 
As long as Tolkien lives, I doubt the Silmarillion would be published. I don't think he ever truely wanted it published. He just liked tinkering on it for his own fun. He probably still will continue to do so, creating not a more definite Silmarillion, but even more contradictory stories.
 
Tolkien was dead, and his son Christopher didn't know about the series until after the publication of The Fires of Heaven. The concept of "use it or lose it" has long been an axiom of IP law. It's the reason S.M. Stirling got such a favorable settlement out of court over Eric Kripke's Revolution.

Any lawsuit brought by Tolkien against Rigney would not succeed under US law, though I don't know about UK law prior to the adoption of WIPO. The relevant law here is the "substantial similarity" doctrine for copyright infringement. Since Eye of the World uses no text from Tolkien, it definitely passes the fragmented literal similarity test. With Roth Greeting Cards v. United Card Co. and Reyher v. Children's Television Workshop as precedent over a decade prior to the publication of Eye of the World, it unlikely that Jordan would even be found to have substantial similarity of idea, and there is no chance at all that it would be found to have substantial similarity of expression.

Revolution, on the other hand, would definitely be found to have substantial similarity of idea to SM Stirling's Emberverse (and Dies the Fire in particular), and the entire case would turn on findings of substantial similarity of expression. While it would not be guaranteed for Stirling, it's sufficiently likely that the rational move is to settle.
 
As long as Tolkien lives, I doubt the Silmarillion would be published. I don't think he ever truely wanted it published. He just liked tinkering on it for his own fun. He probably still will continue to do so, creating not a more definite Silmarillion, but even more contradictory stories.
Tolkien apperently planned to change the Elbish origin of Orcs and make them human instead. Also he regretted Gandalf's Jesus like fate.
 
There is a timeline on here covering this exact topic, and amazingly well at that. It is certainly worth a read - No Longer Oneshot Row
Oh yeah, that was a great timeline!
In particular, it contained this gem of a line:
This Convention was also notable for being the first and only time Tolkien came into contact with role-playing games, when he accepted an offer to play a session of Martians & Mayhem with some of the attendees.

"I disliked it," he wrote to Christopher. "Too many silly names and sillier monsters. One is forced to go around slaughtering things and stealing money like some sort of murderous tramp. I hated this business with the dice rolling too: too many 1s ruin everything. When one is a Moon-Elf with a laser cannon, one should not err by shooting a companion in the knee!"
 
He'd sue the pants off of James Oliver Rigney A.K.A. Robert Jordan; Eye of The World came out in 1989.

Umm, The Sword of Shannara is explicitly set fifteen centuries after World War III, its sequel features a pilgrimage to the ruins of San Francisco, and Tolkien's trolls didn't wear radsuits. No judge or trial jury outside the British Commonwealth not otherwise in Tolkien's or his attorneys' idiomatic back pockets would give that lawsuit the time of day, not even his biggest American fans.

Jordan, on the other hand, explicitly set his opus in a Third Age, Rand Al'Thor clearly has much more in common with Frodo than Will Ohmsford did, the Dark One is far more of a Morgoth expy than the Warlock Lord was Sauron, and do I really have to talk about the Green Man and Treebeard?

Wait, Sword of Shannara takes place on Earth? Damn, I may need to reread them. I love the rare "high fantasy setting is actually post-apocalyptic sci-fi in disguise" works.

I doubt Tolkien would so, no more than he sued Stephan Donaldson for Thomas Covenant, or the other early fantasy works.
 
All this stuff about lawsuits is pure insanity, legally speaking. I find it unlikely Tolkien would consider it at all, and he'd definitely drop it once he consults an attorney and is told that victory is completely improbable.

More on the point, Tolkien would expand his investigation of Glorfindel and conclusively determine why Glorfindel was returned by the Valar. He'd also develop more supplementary material covering Alatar and Pallando, perhaps connecting them with Glorfindel, and likely exploring what they did in the east. I could easily see a longer living Tolkien leaving sufficient notes for Christopher to publish a two volume Silmarillion. Volume 1 covers the Ainulindalë, Valaquenta, and Quenta Silmarillion. Volume 2 covers expanded versions of the Akallabêth, Of the Rings of Power and the Third Age, and something like Of the Istar.
 
When did they visit San Francisco in Elfstones?

They called the place "Safehold." Brooks clearly described the Golden Gate Bridge, the Transamerica Pyramid, and the Cow Palace, albeit after a nuclear war and then a millennium and a half of neglect.

But this is neither here nor there. Tolkien's final words would have been, "I've created a monster."
 
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