Zaentz countersues the Estate

[Recoveryanonymous]

Hi all, this is my first post here. This particular topic interests me.

There's another layer to this lawsuit that I think you should all be aware of.

There's this total conversion mod for Skyrim that remakes Middle Earth in a map nine times the size of Skyrim's map. It's a really ambitious non-profit fan project.
Magic will be largely restricted to be more lore friendly. Spears will be implemented to the arsenal of weapons. There will be enhanced mounted combat.

http://www.moddb.com/mods/merp-middl...pons1#imagebox

Merp will also have its own original music and voice too. Here's a track.
http://www.moddb.com/mods/merp-middl...und-3#imagebox

There will be three "modes" to play. A Ringbearer quest-line, where you play as Frodo and go through his journey. There will be a dynamic timeline where events in the world are triggered by the dates they occur in the books. Best hurry to Mt. Doom before the Battle at the Black Gate is over.
There's also a White Council "mode", where you run errands and such for the White Council and a free roam "mode" similar to Skyrim. Each mode will have a ton of quests to complete. It would difficult to complete them in the Ringbearer mode and White Council mode because you'd have other duties to attend to and little time.

There's also supposed to be a realism mode, where the player has to worry about food and water. Viewing the map is restricted and combat is much more unforgiving in this mode.


In July Warner Brothers sent the project a cease and desist letter.
The modding team tried negotiating with them, even offering to severely limit the mod. WB didn't care. They wanted Merp gone, claiming that Merp would cannibalize the market. A multibillion dollar company feeling threatened by a non-profit fan mod.

The mod team got a lawyer and started a petition to revoke the cease and desist. The petition currently has over 28,000 signers. Maybe not much for WB, but nonetheless the team persevered.

In late November, The Tolkien Estate sued Zaentz and the their sub licensee Warner Brothers. In addition to the slot machines, Warner Brothers never had the legal rights to "non-tangible digital media". Entities such as Merp were beyond their jurisdiction, rendering their Cease and Desist void. The Tolkien Estate had inadvertently saved Merp.

Now however, Zaentz is counter suing the Estate, threatening to throw Merp back under the rule of Warner Brothers and undo the Estate's actions. This conflict between these two juggernauts does, in a way, decide the fate of fan projects like Merp.

[Zigûr]

Originally Posted by Recoveryanonymous

In late November, The Tolkien Estate sued Zaentz and the their sub licensee Warner Brothers. In addition to the slot machines, Warner Brothers never had the legal rights to "non-tangible digital media". Entities such as Merp were beyond their jurisdiction, rendering their Cease and Desist void. The Tolkien Estate had inadvertently saved Merp.

Now however, Zaentz is counter suing the Estate, threatening to throw Merp back under the rule of Warner Brothers and undo the Estate's actions. This conflict between these two juggernauts does, in a way, decide the fate of fan projects like Merp.

I have heard about this, although I didn't realise that the Estate's suit possibly put the project in the clear. It did seem at the time that WB was concerned that a fan-made project would threaten their own products; I've only played the Battle for Middle-earth games (surprisingly fun) and the Return of the King tie-in button-masher (stress relief if nothing else) but those are from before WB had the license. I'm led to believe that the more recent video games have not done particularly well so I can see why they might be concerned, but that's still a rather petty reason to issue a cease and desist, as well as showing a lack of confidence in their own products. In addition it seems like the fan project is a long way from completion, and it would be a shame if this counter-claim would put something with such effort devoted to it in jeopardy again.
That being said, and judging from the images I've seen, doesn't the mod largely use designs from the films? Their summary says:
"We use the films for inspiration, but base our visual design mainly on the descriptions in the books and the works of Ted Nasmith and John Howe."
but judging by the Rohan buildings, Treebeard etc it's still largely reminiscent of the films. I can see why it might be treading on a few toes in that regard.

[Recoveryanonymous]

Originally Posted by Zigûr

That being said, and judging from the images I've seen, doesn't the mod largely use designs from the films? Their summary says:
"We use the films for inspiration, but base our visual design mainly on the descriptions in the books and the works of Ted Nasmith and John Howe."
but judging by the Rohan buildings, Treebeard etc it's still largely reminiscent of the films. I can see why it might be treading on a few toes in that regard.

I really don't think so. Warner Brothers wouldn't even allow a private release for just the developers.
http://www.pcgamer.com/2012/09/06/mi...se-and-desist/

I think WB felt threatened by the project and took legal action against it using whatever reasons they could conjure up no matter how flimsy. A private release would have allayed their complaint of Merp's effect on the market. Warner Brothers didn't care.
In any case, the movies only covered a limited portion of Middle Earth; Merp would be showing all of it. Many locations would be designed by the team. Based on Tolkien, of course, but the films couldn't really be a source of inspiration for Fornost, or Dol Amroth or a variety of other places.
There might be some similarities between Merp and the films in the design of the "iconic" locations, but didn't Alan Lee work on the trilogy too?

[Zigûr]

Originally Posted by Recoveryanonymous

In any case, the movies only covered a limited portion of Middle Earth; Merp would be showing all of it. Many locations would be designed by the team. Based on Tolkien, of course, but the films couldn't really be a source of inspiration for Fornost, or Dol Amroth or a variety of other places.
There might be some similarities between Merp and the films in the design of the "iconic" locations, but didn't Alan Lee work on the trilogy too?

Quite so. I was merely trying to suggest some rationale for WB's attitude, but it does seem to derive more from sheer bloody-mindedness than any kind of genuine intellectual property issue. If they have so little confidence in their own ability to produce and market successful Tolkien-themed video games that they feel threatened by a fan mod for Skyrim I'm not really sure how they can think that putting a stop to its development is going to somehow improve their own success. Are they threatened by a non-profit mod because they fear that more people will buy Skyrim (rather than their own RPGs) as a result or some equally absurd concern? I notice however than in addition to having the license to produce film-related material WB also owns Turbine, Inc. which makes the specifically book-related The Lord of the Rings Online. Nonetheless, I would be curious as to whether there was any precedent or evidence for mods causing the kind of market "confusion" among consumers about which WB claim to be concerned. Where is the cease-and-desist against, say, The Third Age: Total War?
Frankly I despair of this 'Melkorism' among corporations, destroying things simply because they themselves did not create them and can't profit from them: "all gold (in Middle-earth) seems to have had a specially 'evil' trend"... (Morgoth's Ring)

[Recoveryanonymous]

Originally Posted by Zigûr

I notice however than in addition to having the license to produce film-related material WB also owns Turbine, Inc. which makes the specifically book-related The Lord of the Rings Online. Nonetheless, I would be curious as to whether there was any precedent or evidence for mods causing the kind of market "confusion" among consumers about which WB claim to be concerned. Where is the cease-and-desist against, say, The Third Age: Total War?
Frankly I despair of this 'Melkorism' among corporations, destroying things simply because they themselves did not create them and can't profit from them: "all gold (in Middle-earth) seems to have had a specially 'evil' trend"... (Morgoth's Ring)

It's probably not easy to speculate about all the variables that could effect the market. But considering the fact that Merp is a mod for an existing game, it isn't too much of a leap to assume that it wouldn't affect a large portion of people, at least not at first. Take the player-base for Skyrim, divide away the console users who can't play mods and all those who don't use mods anyways. The result can't be that much could it? If Merp were completed, I think word of mouth would make it well known, but that's years away at least. Who knows how many people would be willing to go out and buy a strong PC just to play Merp? The process of acquiring a mod tells me no one would confuse it for a game you'd have to purchase in a store. Your right about the "Melkorism" amongst these guys. It just becomes ever more transparent.

[Recoveryanonymous]

I thought you guys might be interested in this mini update about the case. Food for thought.
http://www.bizjournals.com/losangele...s-tolkien.html

"Bonnie Eskenazi, the attorney for the Tolkien estate, called Warners' counterclaim “nothing more than an effort to sue the Tolkiens and HarperCollins for suing them. They are entirely without merit and are a classic example of studio ‘bullying tactics.’ The Tolkiens and HarperCollins filed this lawsuit in order to force WB and Zaentz to live within the boundaries of the contract to which they agreed. WB’s and Zaentz’s amended counterclaims are simply an attempt to punish the Tolkiens and HarperCollins for having the nerve to stand up to the studios and tell them that they can’t take more rights than were granted to them by contract. Luckily, the law protects people like the Tolkiens and HarperCollins from these kinds of intimidation tactics."

My respect for the Tolkien Estate is further reinforced.

[Inziladun]

And to me, the crux of Warner's motives here, that they (poor dears) were unable to fully profit from Tolkien's works to their satisfaction, really exemplifies what I detest about the whole premise of the movies.
The books are seemingly worth nothing more than their title, a drawing point for the masses and their pocketbooks. Makes me glad I still haven't seen the TH film. Fight the power!

[Kuruharan]

Originally Posted by Recoveryanonymous

My respect for the Tolkien Estate is further reinforced.

I second this motion.