Film Rights to First & Second Age

[Sauron the White]

from WCH -

Again, Sauron, the copyright in the broader 'Silmarillion' came into existence as that work was written, not in 1977. Its eventual date of publication makes *no difference whatsoever.*

This is not at all what I have been taught copyright to mean. Could you please cite some law or legal language which supports this position which is quite a bit broader than anything I have ever read or understood?

Based on what you posted plus what I read last night in researching the idea of derivative rights - why is not the book length SILMARALLION a derivative of the previously published and legally copyrighted shorter work found in LOTR?

You complain that the Silmarillion being published somehow decreased the commercial value of Zaentz' rights. Well, in the first place, copyright law only concerns itself with questions of ownership (intellectual *property*, right?) The market is the market. Zaentz today owns precisely what UA did in 1968. No more, no less. The value of that property is irrelevant.

Does Zaentz have what he had in 1969? Then he could well make a film of those Silmarallion events, fill in the blanks, and go on his merry way. Years later, CT caused the book length SIL to be published not giving the world a different picture of those events. Now Zaentz owns a property which has been impacted and its usage is made problematic or impossible by the subsequent publication of the larger work.

Question: if I sell you exclusive film rights for a 1,000 word short story can I then wait a few years, write a novel length version of the story including many of the same characters, scenes, and events and sell that version to someone else in film rights? Would not the appearance of a far more detailed book length version compound and greatly impact my efforts to use the rights I have already purchased from you?

Of course, I could still do it. But your subsequent actions will cause my legal usage of those original rights to be ridiculed, derided and castigated because they are different that what people have read in the fuller treatment.

That reality materially diminishes the rights you sold to me.

*No* exclusive right in the pre-existing material.

This gets back to you showing me that your broad and expansive definition of copyright is the one that applies here. Why is not the 1977 SILMARALLION, with its registered legal copyright, a derivative of the LOTR copyright in which that material was legally copyrighted for the first time (that I am aware of)?

One final shot: It's also worth pointing out that the 'value' of Zaentz' film rights in a one-paragraph synopsis of the Silmarillion was very close to nil, until Christopher Tolkien made The Silmarillion a number-one bestseller.

That is your opinion and I respect that. But it is far from provable fact. Many successful movies have been made from far less than that synopsis found in the Appendicies. Many hit movies are simply somebody originally pitching an idea in one or two sentences - "THE OLD DARKHOUSE on a spaceship in space" and we get ALIEN.

The fact is this - as we discovered yesterday, when you look at the listing of events found in the Appendicies, there is more than enough to make a movie.

Let's look at it this way: suppose you buy 100 shares of Acme Corp (purveyors of fine malfunctioning explosives since 1949). Subsequently, Acme makes another issue of common stock, which dilutes the market and drives the price of your shares down. Do you have a claim? Not a prayer. You still own 100 shares of Acme, which is exactly what you bought.

I understand your point. I will spare you the "this is this" speech. Lets look at your comparison and give it some thought. When I buy the stock from Acme, I do so with the full knowledge and understanding that it is common practice to reissue other shares of stock and this is what companies do on a regular basis. It is part and parcel of the business and is common practice in that business.
It is something I should know, or something my broker should make me aware of along with the usual risks of buying stock.

When I purchase the film rights to a property, I would normally expect that I own the film rights exclusively to all that is in the original source that I am purchasing. It is not part and parcel of that business for the seller to turn around and rewrite it, copyright it and create a whole new property which has the very real effect of causing me some very real problems, difficulties and reduces what I can now do with it without creating even more problems and difficulties.

I believe your Acme stock comparison does not fit. And thus we come back to the reason for Robert DeNiro and his famous quip.

[Nerwen]

Originally Posted by Sauron the White

from WCH -
This is not at all what I have been taught copyright to mean. Could you please cite some law or legal language which supports this position which is quite a bit broader than anything I have ever read or understood?

STW, copyright exists from the moment a work is created. That's one of the basics.

Here is a link which may answer some of your questions: http://www.publaw.com/cfaqs.html

Originally Posted by Sauron the White

Question: if I sell you exclusive film rights for a 1,000 word short story can I then wait a few years, write a novel length version of the story including many of the same characters, scenes, and events and sell that version to someone else in film rights? Would not the appearance of a far more detailed book length version compound and greatly impact my efforts to use the rights I have already purchased from you?

Of course, I could still do it. But your subsequent actions will cause my legal usage of those original rights to be ridiculed, derided and castigated because they are different that what people have read in the fuller treatment.

That reality materially diminishes the rights you sold to me.

Indeed... but that doesn't necessarily mean you'll get compensation, which is what your argument seems to turn on– unless I've misunderstood it again. (I'm finding the point-of-view shift in that passage rather confusing.)

And no, The Silmarillion is not a derivative work.

[Sauron the White]

WCH
Again I invoke the name of Denzel Washington and ask you to explain this to me like I am a four year old.

You keep coming back again and again to this

Again, Sauron, the copyright in the broader 'Silmarillion' came into existence as that work was written, not in 1977. Its eventual date of publication makes *no difference whatsoever.*

And it seems to be the cornerstone of much of your reasoning.

I do understand that the term COPYRIGHT originally simply mean that, you as the author, had the right to copy comething ..... ergo - the right to copy/copyright.
And that is certainly one meaning of the term.

I read the information in the link provided by Nerwen which said this in part:

When is my work protected?

Your work is under copyright protection the moment it is created and fixed in a tangible form so that it is perceptible either directly or with the aid of a machine or device.

As a layman without benefit of Law school, but one who taught high school Government for 33 years, it has been my belief that there is a difference in that meaning of the word COPYRIGHT and the registered or legal copyright which is provable and enforcable in court and comes with certain legal rights and benefits that go far beyond simply the ability to write and copy something.

Before we go an further I would appreciate it if you could clarify that for me so we can both be reading from the same page.

[davem]

Originally Posted by StW

Now Zaentz owns a property which has been impacted and its usage is made problematic or impossible by the subsequent publication of the larger work.

Question: if I sell you exclusive film rights for a 1,000 word short story can I then wait a few years, write a novel length version of the story including many of the same characters, scenes, and events and sell that version to someone else in film rights? Would not the appearance of a far more detailed book length version compound and greatly impact my efforts to use the rights I have already purchased from you?

Of course, I could still do it. But your subsequent actions will cause my legal usage of those original rights to be ridiculed, derided and castigated because they are different that what people have read in the fuller treatment.

Still trying to work out what your point is, but from this it seems that you're worried about Saul Zaentz/putative maker of a movie based on the synopsis in Appendix A being embarrassed by not being able to use subsequently published works & having to make stuff up.

They certainly could find themselves embarrassed - if they decide to make a movie based on that synopsis & invent new material. Of course, they don't have to make such a movie, & thus can avoid any such potential embarrassment. But the real point you're missing is that nothing in the synopsis contained in LotR is contradicted by the published Silmarillion. The only problem (if red faces are to be considered a problem) would arise if they attempted to expand on the matter they own.

The fact is that any film-maker licenced by Zaentz is as free now to put together a movie script based on that material in LotR, & fill in any gaps, as they were before The Sil was published. The only problem is that we now have the 'official' version. Now, its quite possible that the audience for such a movie either would not care that it is not Tolkien's version of the story, & may even prefer it over Tolkien's work. Whatever, the only thing that has changed is that we now know what Tolkien intended, & therefore we would know if a movie maker invented a new version. Zaentz has the same rights now as he purchased from UA.

What you seem to be getting het up about is the possibility that Saul Zaentz/potential movie maker may end up looking a bit silly. And, speaking for myself, all I can say to that is 'I think you have me confused with someone who cares."

[William Cloud Hicklin]

Sauron, do you actually read my posts, or do you merely skim them and fly off half-cocked?



To quote the Copyright Act,

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, *motion picture version*, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted....The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

You talk as if Zaentz 'owns' the Appendices to the Lord of the Rings. He does not. He owns a license to make motion pictures based on The Lord of the Rings. That is a derivative right, which implies no right whatsoever in the underlying original work.

You might try to assert that (all within the primary copyrights of the author and his heirs) that the 1977 Silmarillion is somehow a 'derivative' of the Synopsis in the Appendices. But 1) this is not so; the Synopsis is an abridgemant or 'derivative' of the pre-existing Silmarillion, not the other way around; and 2) the question is irrelevant, because you are talking about the primary copyright in the written works, which Tolkien and his heirs have always owned, and upon which Zaentz has no claim at all.

Once and for all: copyright is *not* created by publication nor registration. I appreciate that you did some research last night: but give me credit for havin' done bin to lawyer school and everthin', and I might just possibly have learned more about the topic than "anything [you] have ever read or understood."

Here are relevant excerpts from the Act:

On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and came within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title

A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work.

and, reinforcing that copyright does not come into being dependent upon registration:

(a) REGISTRATION PERMISSIVE.—At any time during the subsistence of copyright in any published or unpublished work, the owner of copyright or of any exclusive right in the work may obtain registration of the copyright claim by delivering to the Copyright Office the deposit specified by this section...

+++++++++

I should like to reiterate one of the above cites in a slightly different context:

....and where the work has been prepared in different versions, each version constitutes a separate work.

Got that? Each successive version Tolkien (or Christopher) made of the Elder Days material is a separate work. Zaentz owns film rights to only one of those separate works- the one-paragraph precis in the Appendices. The Silmarillion, from the Lost Tales to the 1977 text, comprises several separate works each and every one of which is completely free and clear of any claim by Zaentz, except that LR synposis.

+++++++++

You try to distinguish my stock-market example because apparently everybody knows stocks go up and down in value. Guess what? So do film properties. UA paid a quarter-million for the LR film rights, and unloaded them eight years later for twenty thousand: they took a bath. No asset is ever purchased with an implied warranty of retaining value. It's called 'risk'.

Your counterexample regarding a novel-length expansion of a short story: "Would not the appearance of a far more detailed book length version compound and greatly impact my efforts to use the rights I have already purchased from you?"

Yes, it would. Tough cookies.

Your purchase of derivative film rights places no restriction or limitation on the holder of the underlying primary copyright in any way, shape or form.

There might, hypothetically, be some sort of colliding interests *if* the film rights to The Silmarillion were ever to be sold. But on that day I reckon most of us will be far too busy keeping winged hogs from crashing through our upstairs windows to worry about it.

And I'm not especially convinced that Zaentz would have much of a claim even then, since courts will apply the contract-law concept of 'the intent of the parties', and might very well conclude that what UA intended to buy and thus did buy was the story The Lord of the Rings, not an ancillary sketch of an unpublished work in which nobody, certainly not UA, had any interest in at the time.

And, again, the '77 text is a separate work, with a separate primary copyright, which Zaentz' derivative license cannot affect, limit nor constrain in any way. Could Orson Scott Card have sold the film rights to his short story 'Ender's Game' to Studio A, and then sold the film rights to the novel 'Ender's Game' to Studio B? Quite possibly. Were Beethoven subject to modern copyright law, I see no problem with him selling publishing rights to 'The Creatures of Prometheus' to Breitkopf und Haertel, and then selling pub rights to the 3rd Symphony to Schirmer, notwithstanding the fact that the finales of the two works are based on the identical theme.

[William Cloud Hicklin]

As a layman without benefit of Law school, but one who taught high school Government for 33 years, it has been my belief that there is a difference in that meaning of the word COPYRIGHT and the registered or legal copyright which is provable and enforcable in court and comes with certain legal rights and benefits that go far beyond simply the ability to write and copy something.

Then you misunderstand. "Copyright" in the first sense is the author's EXCLUSIVE right to create copies, and the right to prevent anyone else from doing so. Ergo it is indistinguishable from the 'second' sense. The rights and benefits are there from the first. All registration does is to ease the copyright-holder's path to the courthouse door.

I am currently engaged in editing certain unpublished Tolkien manuscripts from Marquette. Hoever, unless and until the Estate approves my edition for publication, I am legally prohibited from disclosing a single word of those texts. They are absolutely, positively copyrighted materials. In fact, they are protected more stringently than published material, since "Fair Use" explicitly does not apply to unpublished works.

[Sauron the White]

davem .. believe me my friend I never confused you with someone who cares.
But you did say this:

Zaentz has the same rights now as he purchased from UA.

Perhaps he does. But the ability to utilize those rights has been diminished by the actions of CT and the Estate in putting before the public a competing and more complete version of The Silmarallion. Is that ethical for the Estate, or anyone for that matter to engage in a business practice that has that effect without some degree of working things out with the person who held those rights before they were diminished?

[davem]

Originally Posted by Sauron the White

Perhaps he does. But the ability to utilize those rights has been diminished by the actions of CT and the Estate in putting before the public a competing and more complete version of The Silmarallion. Is that ethical for the Estate, or anyone for that matter to engage in a business practice that has that effect without some degree of working things out with the person who held those rights before they were diminished?

CT edited together The Sil for publication because he wanted to make that material available to readers, & I daresay that thoughts that it might cause a problem for Saul Zaentz never crossed his mind.

You seem to have left the 'legal' question behind & are now arguing 'ethics' & asking for sympathy for poor Mr Zaentz - the man who is ultimately responsible for inflicting the Bakshi, Rankin-Bass & Jackson farragoes on us??

[William Cloud Hicklin]

"Ethics" and "Saul Zaentz" I never thought to see in the same sentence.....

"Zaentz can't dance but he'll steal your money.."
--CCR

Poor baby- parlayed a $20k investment into a quarter-billion free and clear without actually creating a bloody thing.


He spent his 20 grand on spec- it was a shrewd investment. But investment carries the possibility of both profit and loss. That's the way it works.

And you want to complain it's 'unethical' for the author and his family to publish the work he spent sixty years creating, just because Zaentz bought film rights to a footnote????

[Morwen]

Originally Posted by Sauron the White

davem .. believe me my friend I never confused you with someone who cares.
But you did say this:



Perhaps he does. But the ability to utilize those rights has been diminished by the actions of CT and the Estate in putting before the public a competing and more complete version of The Silmarallion. Is that ethical for the Estate, or anyone for that matter to engage in a business practice that has that effect without some degree of working things out with the person who held those rights before they were diminished?

You agree that Zaentz has the same rights now that he always had. You have not put forward any evidence to suggest that Christopher Tolkien by publishing the Silmarillion was engaged in a malicious act to try and reduce the value of those rights. In the Introduction to "Unfinished Tales" CR Tolkien discusses his reasons for publishing more of his father's work after the latter's death and in summary his reason (as I understand it) is to make available information on the "unexplained vistas" referred to in the then published work of Tolkien because many during the author's lifetime had asked for such (botanists wanting more exact descriptions of the mallorn, historians wanting information of the politics of Gondor, etc)

I don't see any onus on Christopher Tolkien to work anything out with Mr. Zaentz.

[Nerwen]

Originally Posted by Sauron the White

As a layman without benefit of Law school, but one who taught high school Government for 33 years, it has been my belief that there is a difference in that meaning of the word COPYRIGHT and the registered or legal copyright which is provable and enforcable in court and comes with certain legal rights and benefits that go far beyond simply the ability to write and copy something.

Sauron, I guess you didn't have time to read the whole page to which I gave you the link. It explains this issue pretty clearly.

[Sauron the White]

It is going to take time to go through the responses... so one at a time, starting from the latest and working back.

from Morwen

You agree that Zaentz has the same rights now that he always had. You have not put forward any evidence to suggest that Christopher Tolkien by publishing the Silmarillion was engaged in a malicious act to try and reduce the value of those rights.

I never said that CT did anything malicious or illegal or with an intent to do any harm or damage. Just the opposite. I stated that I was glad he collected the papers into THE SILMARALLION and glad it was published. However, even in the free exercise of ones rights, there can be unforeseen consequences that damage others. That is what we have here. Zaentz may indeed have on paper the same rights that he always had - BUT - and its one huge BUT - the value of some of it - the sections describing the events of The Silmarallion in the Appendicies - have been diminished. It is now going to be nearly impossible for him or anyone else to exercise those rights and make a movie of those events without holding themselves up to ridicule when that work is compared to the 1977 SILMARALLION book. UA, and then in turn Zaentz, purchased something and then saw part of its value rendered either less or worth nothing altogether since it is nearly impossible to realize it.

That is the point.
-------------------------------------------------------------

WCH on Saul Zaentz and ethics

"Ethics" and "Saul Zaentz" I never thought to see in the same sentence.....

So the good luck of Zaentz in a business investment causes you to create a new standard of ethics which then applies to ..... what exactly? Or are you saying that because Zaentz hit the lottery with LOTR than he deserves to receive less than he is entitled to otherwise and thats just karma? I did not realize that there was a legal limit on return on ones investment.

and more from WCH --

And you want to complain it's 'unethical' for the author and his family to publish the work he spent sixty years creating, just because Zaentz bought film rights to a footnote????

Just like the discussion of yesterday where you misstated and exaggerated my opinion for heavens only knows what purpose, you do it again today. In its entirety, here is what I said about etchics:

Is that ethical for the Estate, or anyone for that matter to engage in a business practice that has that effect without some degree of working things out with the person who held those rights before they were diminished?

My point was short and clear. Since the publication causes the rights of Zaentz to be diminished or practically unusable, then it would a good thing to work things out between the seller and holder. I did not, do not and will not criticize CT or the Estate for causing to have published THE SIL. I am very glad that happened. CT had a perfect right to do that. However, there were some unforeseen consequences which caused previous rights holders to see their rights now in a diminished capacity. My criticism was not for the publication but for the failure to work something out in restoring to whole what was previously sold and now devalued.
--------------------------------------------------------------------------------------

from Mithalwen

I would want to be very sure that the apendices were part of the rights deals before coughing up cash for a fim. I think there is a good chance they would not be included since they are appendices to the LOTR not an actual part of LOTR but I don't have the contract and I am not an IP lawyer.

We all seem to be in the same boat since none of us have those contrcts spelling out those rights. However, I do not see how you can feel there is a good chance that the Appendicies are not included in those rights when there has been very open discusssion from the rights holders that they are going to use material from those very same Appendicies to form much of the second upcoming film. I would have to believe that you do not go around making statements of intent like that without a firm knowledge of what your rights are.

UA purchased the film rights to both HOBBIT and LOTR in 1969. The Appendicies are part of LOTR and always have been going back to the First Editions. I would think, that in a discussion such as this, the responsibility to show that they are NOT part of what normally they would be a part of is on you. The exception to the rule needs far more defense of worth than the normal practice does.
---------------------------------------------------------------------------------------------

from davem

CT edited together The Sil for publication because he wanted to make that material available to readers, & I daresay that thoughts that it might cause a problem for Saul Zaentz never crossed his mind.

I agree with you on that. I am sure that CT never intended or wanted to hurt anyone.

You seem to have left the 'legal' question behind & are now arguing 'ethics' & asking for sympathy for poor Mr Zaentz - the man who is ultimately responsible for inflicting the Bakshi, Rankin-Bass & Jackson farragoes on us??

That involves a qualititave judgement on your part which some may agree with and others would not since it combines Zaentz with the work of those who he licensed to make films. I, for one, do not think it is fair or responsible to lump the work of Jackson in with that of the other two. But like yours, thats only my opinion and means little to nothing.

My point has been made over and over again. The publishing of the book length SIL has rendered the film rights to material found in the Appendicies - sold free and clear by JRRT - top be diminished in value if not in fact impossible to realize. This has created an area of overlapping rights to many of the events in the Silmarallion and should be worked out between the two parties.

more to come later when I read other responses

[Sauron the White]

WCW - earlier you were trying to explain to me about copyright law and how some of my beliefs were in error. And I guess some were. Thank you for that correction. The one thing that I still have a question about is on page 1 you said there is no difference in penalties or protections between a formal registered copyright and the one you said takes effect upon creation.

STW - There is a huge legal difference between a copyright and a legally registered copyright which attaches protections of law and introduces certain legal remedies and penalties. Huge difference.

WCH - No. There isn't. None. The only difference registration makes is that it's much easier to prove that the work in question existed as of that date. Period.

Then Nerwen provided a link with the copyright people which said this

Why should I register my work if copyright protection is automatic?

Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within five years of publication, it is considered prima facie evidence in a court of law.

Now that clearly mentions several advantages including eligibility for statuatory damages, repayment of attorneys fees, and the ability to use it as prima facie evidence in court. Those would seem to be some very big differences that could potentially mean a good deal more money. Would you agree?

[William Cloud Hicklin]

Procedural advantages are not the same as asserting that copyright doesn't exist pre-registration!

Perhaps you're confusing property with the value thereof. A copyright is property. Its monetary value may be enhanced by many things, including registration. That doesn't in any way alter the basic fact of ownership.

***********************************
You seem to be making a similar mistake in your 'diminished value' argument. Again, you've bypassed my essential point: As holder of the primary copyright, the Tolkien Estate is under *no* obligation to take cognizance of any 'dimunition of value' in derivative rights. Zaentz owns exactly what he always did. If it has fallen in value: tough.

Why therefore should the Estate 'settle' or 'negotiate' anything. They owe Zaentz *nothing*. He got what he paid for. Its subsequent vicissitudess in market value are his problem, not the Estate's.

[Sauron the White]

WCH - two things: First, if you go back and read my statement (and I did reproduce it for you) I said

There is a huge legal difference between a copyright and a legally registered copyright which attaches protections of law and introduces certain legal remedies and penalties. Huge difference.

Please note that I used the word "copyright" and did not deny it. I also differentiated between the type of copyright that you keep referring to and a legally registered copyright. I do believe that any fair minded person can read the quote from the Copyright site that Nerwen provided and see that there are indeed definite differences that are beyond procedural. In fact, they also are in the amount of monetary damages one can collect.

You seem to be making a similar mistake in your 'diminished value' argument. Again, you've bypassed my essential point: As holder of the primary copyright, the Tolkien Estate is under *no* obligation to take cognizance of any 'dimunition of value' in derivative rights. Zaentz owns exactly what he always did. If it has fallen in value: tough.

Why therefore should the Estate 'settle' or 'negotiate' anything. They owe Zaentz *nothing*. He got what he paid for. Its subsequent vicissitudess in market value are his problem, not the Estate's.

The owner of the Silmarillion events as told in the Appendicies sold those film rights to UA who then sold them to Zaentz. Then, the designated and rightful heirs of JRRT, CT and the Estate, caused to be published THE SILMARILLION some eight years later.

You refer to these "subsequent vicissitudess in market value" like they fell from outer space or were created by some other force like a third or third-millionith party. That is not the case. The reason for the loss of value was the publishing of THE SILMARILLION by CT using some of the same material that had already been sold as film rights.

Yes, CT had a right to publish that book. But it had the unintended (I am giving the benefit of the doubt here) consequence of causing the rightful films rights holders to now be holding a property one Tolkien sold them only to have another Tolkien put out a similar property using much of the same content.

How can you not admit this? Are you of the impression that CT or the Estate can do no wrong and regardless of what they do its never their fault?

Were it not for several million copies of THE SIL in existence for the last three decades, the lawful rights holders could make a movie including that laundry list that both you and I agree are withing their rights to include. But now, if they fill in the blanks or connect the dots between those events with material of their own invention, they risk seriously damaging their product in the eyes of the public because "its not the real SILMARALLION", "you just made all this stuff up to make money", or "you are urinating upon the real SILMARALLION". Before the publication of that book, there was no SILMARALLION to compare such a movie effort to. None.

Or they can take some chances, and fill in the blanks and connect the event dots with actual things, characters, dialogue and other material taken directly from the published SIL. They then risk a very damaging lawsuit.

Again, they are damned if they do and damned if they do not. And who put them into this position? They were sold rights by one Tolkien and had those rights diminished by another regardless of the intent and absence of malice.

So now they own something which they paid for and cannot exercise their rights without risking either public ridicule and rejection of their film, or, a serious lawsuit which could bankrupt them. Talk about your rock and a hard place. They did not put themselves there. The publication of the book length SIL did - intended or unintended - the results are the same.

[William Cloud Hicklin]

So now they own something which they paid for and cannot exercise their rights without risking either public ridicule and rejection of their film, or, a serious lawsuit which could bankrupt them. Talk about your rock and a hard place. They did not put themselves there. The publication of the book length SIL did - intended or unintended - the results are the same.

Again, tough.

Zaentz did not buy the underlying copyright in The Lord of the Rings. He bought the right to make movies. The primary copyright in Middle-earth never changed ownership, and Zaentz has bugger-all room to complain about whatever Tolkien-plus-heirs do. Including 'diminishing his value.'


You asked for the Denzel Washington treat ment. Very well, then.

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.

Now, that's a deliberately extreme example. Let's look at another one. Suppose Hot Young Author writes a bestseller. Studio A negotiates and executes a film deal for it.

Suppose that subsequently, HY Author writes a sequel. Or an unrelated book. Or several. Whatever- but they're all rubbish. The kid is a flash-in-in-the-pan, a one hit wonder. His stock in literary circles takes a dive, he doesn't get invited to the good parties any more, and he's universally now regarded as a talentless hack. Think Barton Fink.

Does Studio A have a claim based on its now-worthless movie rights? Nope. They still own what they bought.

Or let's suppose Studio B buys film rights to the [ghostwritten] autobiography of a star athlete- let's call him, say, ummmm....OJ. After inking the deal, OJ does something damaging to his public image, like, oh I dunno, carving up his ex-wife and her friend with a knife. Public enemy number one. Plug pulled on biopic. Film rights worthless.

Does Studio B have a claim? Nope. They still own what they bought.

[davem]

Anyone who took the time to look into it throughout the '50's & '60's would have known that Tolkien was working on the Silmarillion from the immediate post LotR period & planned to publish it - its mentioned in 'Tolkien & the Critics' - a collection of essays edited by Isaacs & Zimbardo & published in 1968 (p/b 1969) - that he was working on it, & that's not the only source of such information. Right from the appearance of RotK interest was expressed by fans of the book in this other work (read the Letters).

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. I'm sure, given Tolkien's reasons for selling the film rights to TH & LotR, that if UA had offered to purchase the future film rights to The Sil Tolkien would probably have sold them too.

Whatever, when UA bought the rights to LotR & TH they could have asked about The Sil. They didn't. When Zaentz bought the rights from them he could have asked whether The Sil was likely to appear & made the decision on whether to buy the rights from UA based on that. Caveat emptor.

Now, unless you believe that Tolkien deliberately mislead UA, or UA deliberately mislead Zaentz reegarding the future appearance of The Sil I don't see what your case is.

If we're talking about 'ethics' here, can I ask whether you believe Zaentz has ever consulted the Tolkien family/Estate before he flogged the licence to produce any kind of Tolkien related trash to the highest bidder?

Sorry, but all this talk of 'ethics' is a joke - Zaentz is a businessman who made a very good deal &, while I'm sure he would be happy to play the 'ethics' card to get his mitts on the movie rights to Tolkien's other works that's all it would be - if you honestly think Zaentz would enter into an equal partnership with the Estate, or surrender part of his absolute control over the film rights to them, well, all I can say is I have the deeds to Buckingham Palace which I can let you have cheap....

[Sauron the White]

from 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

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? They were suppose to know, that somehow, someway, someday, JRRT or his heirs would undercut their investment by putting out another book with much the same material that they had paid him for? Or, they should have been aware of a rather obscure article turned into a book about the subject and been able to predict the future from that?

Amazing in the extreme.

Sorry, but all this talk of 'ethics' is a joke

It very well could be. A bad joke. But upon who? Put yourself into the position of the film rights holders.

Event #1 - JRRT toys with the idea of being deeply involved with the production of a film based on his book LOTR. However, after several years of various levels of discussion, he makes a decision between "Art or Money" and opts for money. He gets his money and UA gets the film rights to LOTR - cover to cover along with THE HOBBIT. JRRT reportedly then says its okay and is happy to make that deal because the book is unfimlable anyways. He sold somebody something that he believes will never be realized.

Event #2 - Years later, JRRT is dead but he has a legal heir Christopher Tolkien. CT takes all those stacks of unsorted papers that have been hanging around for decades and spends years of hard work on them producing a cohesive narrative that is published into a novel length book. Nearly every single event contained in the beginning of the Appendicies I is included in the book. Events to which his father sold film rights are an important part of his book.

Now the publication of the book makes the use of those film rights regarding the First Age material at best problematic and at worst impossible.

One Tolkien giveth and another Tolkien taketh away - or at least reduce the crap out of the value. And what is anyone willing to do to make the rights holder whole again and restore the value of his purchase? Nothing. Zip. Zero. Zilch.

And now you want me to feel badly about bringing up the issue of ethics?

If we're talking about 'ethics' here, can I ask whether you believe Zaentz has ever consulted the Tolkien family/Estate before he flogged the licence to produce any kind of Tolkien related trash to the highest bidder?

Your use of the word trash I imagine is defined by your own particular tastes and in no way reflect the hundreds of millions of people who bought tickets again and again to see the Jackson films making them some of the most successful and loved films ever made?

Your use of the word trash I imagine is defined by your own particular tastes and in no way reflects the opinion of professional film critics who judged each of the three Jackson films some of the better films of each year.

Your use of the word trash I imagine is defined by your own particular tastes and in no way reflects the opinion of industry professionals who gave many of their highest awards of excellence to these films?

I just want to be sure what standards you are employing here.

[Sauron the White]

zxcvbn

Do you realize that the Appendicies contain all of the following

- Feanor is shown to be the greatest of the Eldar making the Silmarils filling them with the radiance of the Two Trees
- Morgoth stealing the Silmarils
-Morgoth destroying the Two Trees by poisoning them
- Morgoth retreating to his great fortress of Thangorodrim with the Silmarils
- Feanor leading his people into exile
- War between the Eldar and Edain against Morgoth and his forces
- the defeat of the Eldar and Edain
- the union of Beren and Luthien and their lineage
-Beren and Luthien steal a Silmaril from the Iron Crown of Morgoth
-Luthien becomes mortal and gives birth to Dior
-the city of Gondolin with Turgon as its king
-the wedding of Earendil to Elwing
-the overthrow of Morgoth
-the ship of Earendil is set into the heavens

and it says that all this is from The Silmarallion.

UA and then Zaentz owned the rights to place all these things in a film. But the publishing of the book length SIL makes this nearly impossible and places them at risk of either losing tons of money produing a film that will be mocked for not being the real thing or risks a lawsuit if it is the real thing. The publication of the SIL placed those rights in a nearly impossible lose/lose situation. That is very clearly a diminishment of rights that they paid for, held and now can not use. And who is responsible for this situation? CT.

That is in the Appendicies. It is far more than just a few names here and there as you claim. And that is just the tip of the iceberg for there is much more on other Middle-earth history that goes beyond that list.

[zxcvbn]

Hmm, interesting. Still, I don't think it would be Illegal to put those things in a film just because they're also published in another book that they don't have rights to.
otherwise Peter Jackson wouldn't have got away with including stuff like the Ring of Barahir(which was in the Appendices) or the inscriptions on Glamdring(which refer to Turgon by name) and Hadhafang(which refer to Idril).

Also, about the Gladden Scenes scenes with Isildur, I believe PJ didn't use the longer
UT version simply because he didn't think it necessary and wanted to conserve screen time. The audience knows that Isildur tried to flee, Ring slipped off, orcs shot him. The end.