Christopher Tolkien at it again....

[Nerwen]

Originally Posted by davem

THE SKY IS FALLING & A MARTIAN ASSAULT FLEET HAS LANDED IN TIMES SQUARE!!!!!

And you could hardly have got more worked up over that.

Seriously: what do you think you're proving, here, davem? Of course nobody (well, barring a few alien-conspiracy nuts) is going to put "X sues Y" on the same level of improbability as "Martian invasion". But that says nothing about the character or history of either X or Y.

As a matter of fact, I do agree that the Tolkien Estate– and copyright holders in general– are quite often heavy-handed about protecting their "property"– but the particular argument you're using here doesn't support that at all. In fact, I have to tell you that, whatever your intention may be, it actually *looks* rather like you're just trying a bit of damage-control.

[davem]

Originally Posted by Nerwen

As a matter of fact, I do agree that the Tolkien Estate– and copyright holders in general– are quite often heavy-handed about protecting their "property"– but the particular argument you're using here doesn't support that at all. In fact, I have to tell you that, whatever your intention may be, it actually *looks* rather like you're just trying a bit of damage-control.

That would only work if the badge thing was the point of the thread - which it wasn't. The book thing is the point of the thread - & that is still straight fact. The 'facts' re the badge thing are - the guy behind the badge was specifically told by Zazzle that the Tolkien Estate had contacted them, informed them that the product infringed copyright, & that story was run by Associated Content, Boing Boing & Techdirt. The recipient of the emails from Zazzle has reproduced them, so you can read them for yourself (see Mr. U's link above). The story was accepted as true by all concerned & by many readers of those sites & here on the Downs, & fir many of them that acceptance was based either wholly or in part on the actions taken by the Estate re copyright ownership over the past few months/years, because the Estate has come to be seen as a bit too eager to resort to legal actions.

So far as we now know the Estate was not responsible for the badge incident, but if you think that it is not significant that so many people believed that that was just the kind of thing they would do then I think you are missing something important. And I would point out that I did not do any shouting on all the other sites that ran the story, so I can't be held responsible for what happened over there.

EDIT

What we have re the Badge - from the Zazzle email http://www.giro.org/2011/03/01/the-zazzle-emails/ :

With regards to details of the infringement, all legal documents are confidential therefore I cannot release this undisclosed information. But we ask that you do acknowledge the fact that we were contacted by The J.R.R. Tolkien Estate, and at their request to prevent and remove any unauthorized and infringing third-party uses of their copyrights, trademarks and intellectual properties.

From Boing Boing (statement from Estate Lawyers re the badge http://www.boingboing.net/2011/03/01...ien-estat.html :

According to Maier, "Zazzle has confirmed that it took down the link of its own accord, because its content management department came across the product and deemed it to be potentially infringing."

From the Zazzle emails :

After corresponding with representatives from the Tolkien Estate, it’s been brought to our attention that the design was removed inadvertently due to a miscommunication on our part.

So the sequence of events seems to be

1) Tolkien Estate Lawyers contact Zazzle & tell them to

"prevent and remove any unauthorized and infringing third-party uses of their copyrights, trademarks and intellectual properties.

2) Zazzle over-react & pull the badge because someone there decides that because it mentions Tolkien's name it may potentially infringe - ie, 'miscommunication on their part'

3) story is run on various sites

4) Tolkien Estate respond by stating that they never demanded this particular item to be removed.

So, the Estate contact Zazzle (as has not been denied - & there would be no need for them to do so as they are within their rights to do so) ask them to remove anything dodgy, Zazzle pulls the badge because they think it does, Tolkien Estate gets in touch & tells them they weren't referring to stuff like the badge.

Or that's my take on events.

So, I accept that the Estate didn't ask for this particular item to be taken down & that Zazzle messed up - probably because they were afraid of potential legal action from the Estate.

Now, I find it significant that no-one doubted that the Estate would behave in the way initially stated & I put that down to the series of legal actions they have recently instigated or threatened to instigate (which may have inspired Zazzle's overreaction).

You find it not to be significant that so many people just accepted that the Estate would behave that way. I can't see that particular tangent leading us anywhere so I'm happy to return to the main point of the thread.

EDIT ADDENDUM

I'm going to be a bit busy for a few days so won't be popping up on here - just pointing that out in case the thread runs on & anyone thinks I'm running from the fight... :P

[davem]

Worth a read & makes some very interesting points

http://theblogthattimeforgot.blogspo...ood-novel.html

I'm now about 3/4 of the way through the book. Its fun but highly improbable - & tbh it does sail a bit close to the wind as far as 'infringing' goes.... But I've enjoyed it as a guilty pleasure & frankly there's no way it could harm Tolkien's work & should have just been ignored. The Estate (or their lawyers) have been really dumb here, because even if they had a case technically, they look petty & bullying.

Still - the piece linked to offers a very good case for the defence.

[davem]

http://www.techdirt.com/articles/201...-culture.shtml original article http://www.nytimes.com/2011/03/28/op...pagewanted=all

Einstein is not the only example. While we might think of people like the Rev. Dr. Martin Luther King Jr., George Patton, Rosa Parks, Frank Lloyd Wright and Babe Ruth as part of our cultural heritage, available for all to use, the identities of each of them, and thousands more, are claimed as private property, usable only with permission and for a fee.

This phenomenon is fairly recent — and it’s getting out of control. For most of this country’s history, a person’s identity was not something that could be owned. While the unauthorized use of someone’s name or image was sometimes barred as an invasion of privacy, the right belonged to that person alone and could not be assigned to others. ,,,

This so-called descendible right of publicity has created a new kind of business: corporations that acquire and market dead people. So Rosa Parks sells Chevy trucks and Albert Einstein peddles everything from baby products to Apple computers. (And who knows how Elizabeth Taylor might be put to work now that she has gone to the other side?)

But say you wanted to write a play about a chance meeting between these two historic figures. Could you? While the play itself may be protected by the First Amendment, that doesn’t mean that the companies that manage Parks and Einstein might not attempt to assert control. Hebrew University has aggressively defended Einstein’s image, even blocking its use on a book called “Everything’s Relative.” And don’t expect to sell programs, posters, T-shirts or the other paraphernalia that might support your play without getting approval and paying whatever fee the owners of Parks’s and Einstein’s rights of publicity demand.

Contrary to what the owners of these identities claim, a right of publicity that continues after death does little to protect the reputations of the deceased.

Extending control over the identity of important people to their estates after death is, I think, to mistake how culture and art work and to elevate property rights to an importance that does us very little good. The identities of famous people as varied as Einstein, Elvis Presley, and Marilyn Monroe become part of our culture’s language. That cultural meaning then becomes part of the language of our cultural conversations, and as a part of that language it then has meaning that can be used in the sorts of compressed and symbolic ways that culture and art thrive on. To remove the identities of dead people from this language in the absence of payment for their use would substantially damage our culture.

So, this is much bigger than whether a writer should be able to use a dead person as a character in their book/play. Its about restricting our culture in what are potentially very damaging ways. Its about our freedom to use our shared culture. Culture grows & develops by people being free to play around with ideas/concepts received from the culture around them. So, this author produces a piece of nonsense involving Tolkien & many Tolkien fans find that a bit off - especially when Tolkien's heirs are leading the objection...but

This is just a tiny part of a massive cultural shift. If these kinds of moves succeed then not only will increasingly large parts of our culture be off limits for discussion unless we pay the rights holder, but even we were to offer to pay, we would be restricted in the way we could use those elements. And the other side is - as the articles point out, if a dead person becomes property then the owner of that property can decide what happens to it. In other words, you might be 100% behind the Tolkien Family in their attempt to prevent Tolkien being used in this way in this book, but if they, & the other Estates out there, succeed, then you may well see down the line less responsible owners of these persons doing things with their images that you don't approve of. Maybe in 20 or 30 years we'll see the owners of Tolkien's image using it to promote/advertise things you don't like - & it won't be possible for you or anyone else to counter that portrayal by presenting Tolkien in a different way. Currently someone could write a novel/play that has Tolkien doing something you don't approve of but you could respond by writing a novel/play that presented the opposite view. If these moves succeed you couldn't do that - the only way Tolkien or any other dead person could be presented is the way the people who owned him allowed.

[davem]

For anyone who's still interested:

In J.R.R. Tolkien's epic The Lord of the Rings, Rivendell provides a "Middle-earth" refuge for hobbits fleeing their enemy, the Ringwraiths.

Until recently, Bragg Creek, west of Calgary, also had a Rivendell, a summer refuge for kids from the city.

But the Bragg Creek Community Association was forced to rename the day camp after lawyers for Tolkien's estate decided it didn't like the use of the trademarked name.

The U.K.-based lawyers sent the community association a cease and desist letter.

"While our clients do not believe that you intended to infringe their intellectual property rights, you will understand that they have an obligation to protect these valuable rights and carefully to preserve the integrity of the Tolkien works," the letter reads.

Community program director Peggy Rupert said the estate's objection surprised her.

"It was just kind of funny," she said. "I actually find it kind of amusing. I've kept the letter as a memento." http://www.cbc.ca/news/canada/calgar...kids-camp.html

In an e-mail response to the Herald Tuesday, Maier countered the proliferation of Internet sites that accuse the Tolkien Estate of being a tad on the litigious side. "It is incorrect to say that the Tolkien Estate is litigious, as it is very rarely involved in court proceedings," he wrote.

"The Tolkien Estate only pursues legal action in the very rare cases of parties who, for whatever reason, are determined to deny the Estate's entitlement to protect its property." http://www.calgaryherald.com/technol...252/story.html

"It is incorrect to say that the Tolkien Estate is litigious, as it is very rarely involved in court proceedings," is good - it is true that the Estate is 'very rarely involved in court proceedings' - but it does seem to threaten to instigate them rather a lot.

Still, thank goodness a non profit organisation has been stopped from encouraging kids to play at Elves & Hobbits.

[Inziladun]

Originally Posted by davem

Still, thank goodness a non profit organisation has been stopped from encouraging kids to play at Elves & Hobbits.

Look, I'm not defending the Estate here because I see no harm in the use of "Rivendell" in this case. But really, davem, you act as if the Estate has a lock on Trademark Infringement legal actions. This sort of thing goes on all the time.

I cannot credit the Estate with perfect judgement 100% of the time, but at least I think their intentions are on the pure side. That's more than one can say for a lot of other trademark holders who threaten litigation.

[Galadriel55]

Originally Posted by Inziladun

I cannot credit the Estate with perfect judgement 100% of the time, but at least I think their intentions are on the pure side.

I side with Zil here. It is ridicuuos how many things were stopped because of the Estate, but I see their side too. Their "protection of Tolkien's words" is quite understandable, because quite a lot of people see LOTR the way PJ made it, and maybe even worse. (The Estate should thank PJ for that.)

If I would say "hobbit" to a random person on the street, I bet that the image s/he will have in mind is an idiotic hairy drunken midget (unless they've really read the books). That is not what Tolkien means hobbits to be! This applies to just about everything. It's not really the Estate's fault if it is over-paranoid.

[davem]

Originally Posted by Inziladun

I cannot credit the Estate with perfect judgement 100% of the time, but at least I think their intentions are on the pure side. That's more than one can say for a lot of other trademark holders who threaten litigation.

OK - but.

First, this looks petty ('Taking candy from a baby' springs to mind) - & its exactly this kind of thing that makes people believe the stories about the Estate threatening legal action against people selling badges which mention 'Tolkien'. Second, as I pointed out, its a bit disingenuous to state that the Estate is rarely involved in court action, because its clearly not backwards at coming forwards when it comes to threatening legal action - & it always seems to be individuals who are a lot less wealthy & therefore unable to go to court against the Estate who get threatened.

The main issue for me here is the group on the receiving end of this letter - a children's camp. Now, it would seem to me that something like this would be likely to lead kids to discover & come to love Tolkien's world - & that this kind of action would be likely to engender the opposite feeling. Tolkien, we know, loved children (though one gets the feeling that CT wishes his father had written his works in a mix of Elvish & Anglo-Saxon, where it could be the preserve of academics). This is a camp where children would play at being Hobbits, Elves & Dwarves with their friends. I think Tolkien would have thought it a wonderful thing, but it looks like his family would rather protect their 'imaginary property' than let the children play. I have to say that the current behaviour of the Estate is souring Tolkien's creation for me.

I think anyone who has read my posts on this forum over the years will know how much Tolkien's work means to me, & how much time I've 'spent' in Middle-earth. I have shelves ful of books by & about Tolkien. I met my partner through this forum & our little boy is only here because of our shared love of Tolkien - we wouldn't have met otherwise. If anyone thinks I'm just on some petty minded vendetta against the Tolkien Estate - sorry, you're wrong. I do think we all owe a debt to Christopher Tolkien, but I also think that the recent behaviour of the Estate & its lawyers is unpleasant.

The kind of thing that this camp was doing was a perfect counterbalance to the simplistic movies & increasingly violent & dumb video games that Middle-earth is becoming in the popular imagination.