Beyond the Tolkien Estate

[Mithalwen]

Originally Posted by The Saucepan Man

I would have thought that, since the visual companion was a companion to the film rather than the book, the right to publish would derive from the film or merchandising rights rather than the book rights. So I am not sure why the estate's permission was required in this case. Then again, I suppose it counts as a "literary work" ( ) and therefore falls within the book rights. In which case the estate's permission will have been required for every publication which "tells the story" (as opposed to telling of the making of the film etc).

It sounds like the kind of nice distinction that could rack up a lot of billable time for the legal profession. The book did make clear that dialogue quotes are from the film not the book. I am not sure that the estate would necessarily have benefitted directly - certainly not from film advertising although of course they would have had increased sales of the original books. And of course there was a film tie-in edition of the book .... so it is a peculiar situation.

I would be surprised if the Estate could have rights to the word "Shire" since it is in the dictionary .....

[Child of the 7th Age]

Regarding the controversy over the term "shire", it is my understanding that this is not coming from the Estate but from the movie folk.

On this, see the following anouncement that appeared in the Forbes website:

The backers of the Lord of the Rings movies are threatening legal action against the fledgling British Web site www.shiremail.com. A lawyer for Hollywood's Warner Bros., New Line Productions and Saul Zaentz Co. wrote owner Tarrant Costelloe, claiming the use of "shire" deceives the public into thinking there is an official Rings connection. Nonsense, says Costelloe, who posted online the written demand that he hand over the domain. He points out that "shire"--which has been used for a millennium in England--forms part of the name of dozens of towns and counties. --Dirk Smillie

The controversy apparently hinges around the question of domain names. I'm not sure how this would affect someone who had a website that incorporated the term "shire" as part of a legitimate placename or in reference to a "Shire" horse which is a registered breed.

It is also my understanding that the Tolkien estate has threatened to sue a number of websites that have poems and maps available for download. As a result, most of the map websites have been shut down while other general sites have removed the material that was under objection.

One of the websites that has been in the forefont of both controversies was Planet Tolkien, the main fan based Tolkien website in the UK. It is similar to the Downs, although larger. They are legally registered under a number of domain names including www.tolkien.org.uk. The estate approached them and stated:

Our client believes that you have registered the domain name in "bad faith", with an intention to use its name for your own financial gain (either directly or via advertising revenue) or in the hope of selling it to our client for more than the administrative costs incurred by you. It is, therefore, an abusive registration within the meaning set out in the Nominet DRS.

n addition, this is a well known mark and we cannot see how you could hope to show that any use you might put the domain name to could be a "good faith" use.

Planet Tolkien was also threatened with a lawsuit by the movie folk (the ones described above) because they have an affiliation with www.shiremail.com.

The problems with the Tolkien estate were apparently settled; as far as I know, those with the movie people were not. For a full account, from the perspective of Planet Tolkien, see this link: What is it about domain-name ownership?

So now we have the situation where some rights are tied up in the Estate, and others are tied up with the movie folk. And the whole question of domain names is being raised. I find the whole thing immeasurably sad, and personally do not understand what domain names have to do with preserving the literary heritage of Tolkien. But I guess it can only be expected when so much money is involved.
As we know, Tolkien's original agreement with Unwin stipulated that he would get 50% of the profits, since the publishers were afraid the book would not make any money. T. S. Shippey estimates that, over the years, the publisher Stanley Unwin has made about a billion pounds and the Tolkien estate another billion pounds on the Lord of the Rings. That's a heap of money! And this is to say nothing of the profits that have gone to the movie folk.

[Sophia the Thunder Mistress]

Unless they want to claim that Tolkien is responsible for the name of "Yorkshire" and inspired Charlotte Bronte's less than inventive use of "----shire" as a location in Jane Eyre and countless other instances, I think they're going to be out of luck. But there may prove to be a difference between "-shire" and "Shire".

Well, scratch the above paragraph, or at least make it a footnote to Child's, since I cross posted with her.

Actually, this:

or in reference to a "Shire" horse which is a registered breed.

struck me as rather funny, since when I was about twelve and extremely passionate about making "my own Middle-earth" , I couldn't quite grasp this difference and named my pseudo-Shire after another breed of draft horse... Percheron. I was a strange little girl indeed.

I wonder, in this slew of website closings/alterations, is there any likelihood of the Downs being hit? Most of the maps I used to use in RPGs are gone, and we too have some copyrighted material in use here...?

Sophia

[lindil]

It may not be common knowledge, but a member of the Silm Project who hosted a draft of our version of the Fall of Gondolin was threatened w/ a lawsuit, and the material has thusly been 'disappeared'. One may also not that the JRRT [and many other great bits of art] that were an original feature of the Downs [well maybe after a few months or so], are long gone. Due, I vaguely recall to pointed legal notices.

Fascinating update overall, I barely make it here much less around to any other tolkien boards these days so I was unaware of the various debates raging. I must say I agree w/ Underhill and see a certain bit of elvish embalmitis in CJRT's actions and attitudes [as he has stated himself in may places]. I think he came to regret his Silmarillion tampering, even though in a 1977 interview I read w/ him he was very confident of his knowledge, ability and his father's blessing to fix up the Silm for publication. Later reflection on his editing of the Silm has him wishing he had NOT been so creative. So...

If he was at first confident in his steward like authority over the remaining Legendarium materials and feared later that he had misused his license, imagine then, how little confidence he has in anyone doing anything 'co-creative' with M E. Tolkien's oft quoted 'other hands' letter notwithstanding. Just my $.02.

-L

[The Saucepan Man]

Originally Posted by Mithalwen

It sounds like the kind of nice distinction that could rack up a lot of billable time for the legal profession.

Sorry, I don't see the problem here.

Names are not afforded the protection of copyright law, so neither the Tolkien Estate nor the owners of the film and merchandising rights could prevent "The Shire" being used in another artistic work. Nor, for that matter, could they prevent the names "Legolas" or "Bilbo Baggins" being used.

But the debate above takes us into the realms of domain names, which is a new and developing area of law. I think that it is more akin to "passing off" whereby a business is entitled to sue a second business which does something which might mislead the public into believing that the activity is associated with the first business and therefore might allow the second business to trade off its goodwill (such as marketing a product which looks sufficiently similar to another as to be likely to mislead).

So, if someone is using a domain name which might be said to be trading off the goddwill of another, then that other person has a right to stop them. Although I fail to see how a (presumably) non-profit making Tolkien based website could be said to be trading off his works.

[Mister Underhill]

In regards to who's getting, or has gotten, what money -- the sale of movie rights typically involves the author getting a percentage of profits realized from an adaptation. I'd be surprised if the Estate isn't owed some slice of the movie profits. Balanced against this, of course, is Hollywood's infamously creative accounting, which can show that movies even as insanely profitable as the LotR cycle has been are still in the red...

[Mithalwen]

No SpM I didn't think you would....... but isn't there a circle of hell ... I mean Minas Tirith... reserved for lawyers?


I am fairly sure that the estate gets nothing from the films - the rights went a long time ago. However I would be interested to know what the deal was with the film tie in edition ...........

The identity stuff is interesting and people are clearly trying to test limits like Victoria Beckham v. Peterborough United and the word "Posh"...

[The Saucepan Man]

Originally Posted by Mithalwen

but isn't there a circle of hell ... reserved for lawyers?

Indeed there is. A most lucrative one. I believe that there is a lot of filthy lucre to be made in false damnation suits.