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Old 06-14-2022, 02:14 PM   #7
Mithadan
Spirit of Mist
 
Join Date: Jul 2000
Location: Tol Eressea
Posts: 3,310
Mithadan is a guest at the Prancing Pony.Mithadan is a guest at the Prancing Pony.
I cannot claim any specific familiarity with British or international copyright or trademark law. That said, intellectual property laws generally are intended to protect against a few things. First, one should not be allowed to profit or benefit from the use of another's protected materials. This extends to using protected material both directly (for example, the publication of a sequel to LoTR) and indirectly (by using protected material in a manner that would lead the public to believe that a product is affiliated or sanctioned by the owner of the trademark or copyright). Another protection is to avoid product confusion, such as publication of material that would lead the public to believe that it is related to protected material. In addition, the right holder is protected from diminution in the value of the protected material due to infringement. What remedy may be available depends, in part, on whether the infringement is intentional, which could result in an award of damages, or inadvertent, which might still entitle the owner to an injunction. There are likely gradations in between.

If the owner does not "protect" its rights, by suing for infringement for example, the owner may lose some of its rights. So it is not surprising that the Estate publishes a list of what it frowns upon, whether or not the rights would be enforced by a court. Nor is it surprising that the Estate has, in the past, enforced its rights.

The idea is that Tolkien worked hard on his creation. It has a value as an asset. The trademarks and copyrights may be the only real marketable asset that the Estate has. Anyone who has read Letters knows that Tolkien was not wealthy by any stretch of the imagination, until perhaps late in his life. He and his heirs have the right to benefit from his labor.

All this said, as Huinesoron states, trademark and copyright protections are not limitless. Enforcement, both as a legal matter as well as a practical matter, is generally limited to prevent exploitation. Thus simply mentioning LoTR or Tolkien's name in a conversation will not get you sued, but selling keychains with his monogram might. Parody, critical and philosophical analysis are also generally not protected. The Estate might have the technical right to protect against "fan fiction" but it also benefits from it. And as a practical matter, unless something is done for profit or some financial benefit or it harms the value of the protected work, it would not be worthwhile for the Estate to crack down on such things both from a financial and a public perception perspective.
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