Judging covers

Yesterday's Book Show opened with an interesting conversation about copyright - literally the right to make copies - and the execution of literary estates, about which I've posted before. There's a court case at the moment between Christopher Tolkein, the executor of JRR's estate, and the writer of a book with the unpropitious title Mirkwood: A novel about JRR Tolkein. The issue seems to be reputational: not so much that the character of Tolkein is somehow copyrighted (how can it be?) but that the author, Hillard, is reaping where he has not sown by using, and probably abusing, Tolkein's literary reputation to advance his own. The case raises interesting questions about rights versus freedoms. Do we protect the legal rights of creators at the expense of creativity? If we relax the borders of the literary universe, do we create the conditions for a loss of creativity? Something like this loss can be seen in the film industry, where intertextuality has become naked looting, imagination plays on a narrow loop, and writers peddle endless reruns like rats in wheels. Should we then judge a case not by whether a writer has made use of another writer, but by whether she has made good use of him? Who will be the judge?