>They are inventing a new right, apparently out of whole cloth, but certainly not based on copyright law.
The Right of Publicity has been around for a while, the lawyers aren't just making this one up. It's defined at the state level (as opposed to trademarks which are at the federal level) and, not suprisingly given its population of celebrities, California's laws offer the strongest protections of this right.
I'm not arguing one way or the other whether this is a valid "right," just that this isn't something new that the lawyers cooked up for the Tolkien estate.
You can read a little bit more about the Right of Publicity here, where its discussed in the context of rapper Rick Ross being sued by the real life drug dealer Ricky Ross --> http://33jones.com/blogentry.asp?EID=1150