[The Saucepan Man]

STW, much as I admire your spirited efforts in sticking up for Jackson and the LotR films and share your discomfort with some of the more strident negative opinions expressed here in respect of them, I am afraid that you are on a very sticky wicket on this one.

Originally Posted by STW

Mr. Hicklin was wrong in claiming that there was no difference. Then he attempted to mitigate or soften his claim calling those differences (which previously DID NOT EXIST in his opinion) procedural. I also was wrong about some things. The truth lies somewhere in between.

The law makes a distinction between substantive and procedural matters. The former (in this context) concern rights, while the latter relate to the ability to enforce such rights. Substantively, there is no difference between the copyright which comes into existence when a work is created and a legally registered copyright. So, WCH is correct to say that the rights of the Estate and UA/Zaentz are no different now than they were when the film rights were first sold. All that registration does is make it easier to enforce those rights.

Originally Posted by WCH

Copyright is a form of intellectual property. Copyright law is a branch of property law. Now, what is property? Property is any thing, real or personal, tangible or intangible, which one person may possess to the exclusion of all others. Copyright is the right of an author to reproduce his own work, and (most importantly) exclude anyone else from doing so.

Like all property, copyright is alienable: it gan be given, bartered, sold etcetera. It is divisible: one can sell a part of a copyright and retain the rest. With me so far?

If the author sells film rights, he is actually selling a license under which the purchaser has the right to make film adaptations. After selling that small piece, however, the author retains all the remaining copyright. It's still his, to do with as he wants.

That might include writing a sequel or other work related to the first work in such a way that it might be classed as 'derivative' were another person to do so. But of course the author owns his characters, incidents and settings and can do with them whatever he bloody well likes. He *owns* them: the sequel is derivative of the primary copyright, not the alienated film license. If he writes a sequel, then it is a new work, and the owner maintains absolute copyright ownership of that too.

No problems so far?

Now, notice that all of this is concerned strictly with *ownership*- it is, after all, property law. "Value" simply doesn't enter in. Property law is only concerned with who owns what, not what it's worth. If the author writes a sequel, it doesn't matter a fart in a tornado whether it might negatively affect the value of film rights he's already sold. His right is exclusive and unaffected- which is to say that the film-rights buyer of Book 1 has no claim nor restraint on the sequel just because the value of his property might be affected. It doesn't matter. The law only looks to ownership, not value.

Suppose that I own a large tract of land, and you approach me to buy one acre on the corner to build a house. We agree on a price and close the sale. (Assume no restrictive covenants or zoning laws, or verbal undertakings)

A few years later on, I elect to develop the rest of my tract as a combination hog-farm/sewage treatment plant/toxic waste dump. Would your house value be affected? Yep. Down the toilet. Would you have a claim against me? Absolutely none whatsoever. I sold you one acre and one acre you own. End of story.

This is spot on and merits restatement. Tolkien owned the rights to all works created by him. He sold an aspect of those rights, the right to make films of TH and LotR (plus associated merchandising rights) to UA. He, and the Estate as his successor, retained the publishing rights to these two books plus all the unpublished material that was not included in the sale. CT was therefore entirely free to publish the Silmarilion (and other) material. Legally, there is no issue.

You state that this leaves Zaentz (or his licensee) in a position whereby he either fills in the gaps in the Silm material contained in the Appendices and invites ridicule or risks infringing the Estate’s copyright. That is correct. And, as others have said, tough.

You seem to suggest that this is somehow unfair on Zaentz. I happen to agree with others that he has done quite well out of the whole deal already thank you and that neither UA nor he were likely to have been interested in the Silm rights anyway until fairly recently, if at all. But putting that aside, in a situation where two parties freely enter into a contract, fairness doesn’t enter into it, unless there is some suggestion that one party was in an inferior bargaining position (which consumer law largely addresses) or was improperly induced to enter into the contract. It seems to me that, if anyone was in a lesser bargaining position when Tolkien sold the film rights to UA, it was Tolkien himself.

In any event, freedom of contract is the reason that parties (of relatively equal bargaining power) pay loads of lolly to lawyers like WCH and me to make sure that their interests are protected.

Originally Posted by davem

Thus, whether it was UA, or Saul Zaentz, if they didn't take the time to find out that this reference in RotK to 'The Silmarillion' was to an actual work in progress they are entirely at fault

Originally Posted by STW

That is the most amazing statement I have ever heard from you - and I have heard more than my share. Lets see if I get this right. UA was suppose to look into the future and know that JRRT would someday publish a book that he had been working on for decades and decades and was in little better condition that stacks of unsorted papers and notes?

Again, I’m sorry, but davem is right. It is not an amazing statement at all. If UA were at all interested in the rights to the Silm, they could have insisted that such rights be included in the deal or that Tolkien agree not to publish the Silm material in the future. If Tolkien did not agree, then they could have reduced the amount paid to reflect the (perceived) lower value of what they were buying. If they were not aware of all the Silm material that had already been written by Tolkien and of his future intention to publish it, then (assuming that they were at all interested in it) they (or their lawyers) did not do their due diligence properly.

Similarly, when Zaentz purchased the rights from UA, if he was at all interested in the Silm rights, he should have made sure that he was aware of how the publication of the Silm might affect them and, if appropriate, negotiate a lower purchase price.