Film Rights to First & Second Age

[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I am currently engaged in editing certain unpublished Tolkien manuscripts from Marquette.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 In fact, they are protected more stringently than published material, since "Fair Use" explicitly does not apply to unpublished works.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.
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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.
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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.
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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.

[William Cloud Hicklin]

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?

You're overlooking those Burger King goblets and 'Lord of the Rings' Monopoly sets and all the other exploitative merchandising dreck that was churned out under licenses from Tolkien Enterprises. Yes, trash. Without regard to the movies.

[Sauron the White]

WCH - even before your previous post, we had disposed of copyright questions.
The link from Nerwen was extremely helpful as were you. Thank you.

I cannot believe you or others cannot see the problem here. In fact, you summarize the situation up in one word ---- TOUGH.

So one Tolkien in charge grants me certain exclusive rights and is paid for them. The check cashes.

Then, years later, another Tolkien comes along with the authority of the first who has now departed from this earth. The second exercises his legal rights in the publishing world but screws up my plans to use part of the rights his father sold me. Part of my investment is now unusuable or could get me into great legal or financial trouble.

Yes, that is indeed T...O....U....G...H.

And who caused it to be so tough? Not the market as you threw out there hoping it would stick like so much pasta to a wall. Not the rising oil cartel prices. Not the changes in public taste. Not the technology. Not a worldwide depression.

What caused it to be so T..O...U...G...H is another Tolkien. Remember him? He is the son of the man who thought he pulled a fast one on me for selling me an unfilmable movie in the first place.

Indeed.

[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.