Tolkien Estate Sues New Line, The Hobbit Not Yet Threatened

[Voronwë the Faithful]

It is, Prim. My only defense of the system is that the alternative would be worse.

[Primula Baggins]

I think of the immune system. It's insanely complicated, full of ramifications and duplications and feedback mechanisms so involved it takes months in class just to get a firm grasp of how it's supposed to work. And yet every bit of it is necessary to human health.

[WampusCat]

I like to think of it as job security for attorneys. And since my brother is one, that seems right and fitting to me.

[Primula Baggins]

Probably as well to think of the immune system as job security for doctors. Also right and fitting.

(Nobody I know is a doctor—just about everyone in my family is a writer, it grieves me to admit.)

[WampusCat]

Writers and editors have no job security, alas.

So getting back to the topic: What is the practical result of all this legal maneuvering? Is it likely to kill or postpone filming of The Hobbit?

[Voronwë the Faithful]

No, it is still a huge longshot that the lawsuit will have any effect on the Hobbit films. Under the terms of the Agreements, the only way that could happen would be if the plaintiffs actually prevail at trial, and even then it would be very likely at all. Basically what is still going on is that the two sides are establishing the parameters of exactly what it is possible that New Line could be held liable for. In all likelihood once that process is completed the will get down to the serious business of negotiating a monetary settlement.

[Frelga]

The role of lawyers in the society could be an interesting topic for a thread.

[sauronsfinger]

I have a specific question of Voronwë given his legal expertise in these matters.

Kristin Thompson has a lengthy article quoting sections of the contract up at ther website. In it, and I believe for the first time, it outlines provisions for sequels of any material made using material from HOBBIT or LOTR.

My question is this: since the Appendicies are part of LOTR, are they included in this language covering use of sequel material. The contract appears to state that the film rights holders get first opportunity on any sequel rights to use. Would that cover THE SILMARILLION since a rough outline of it , complete with names, places, events and plot descriptions are contained in the first Appendix of LOTR?

[Primula Baggins]

Voronwë's gone for the day, SF, but my memory of the situation is that they can use anything that's actually in the appendices of LotR as published. They can't extend from that to characters and events that are only mentioned in the Silmarillion or elsewhere in Tolkien's writings, because they only acquired the rights to LotR and the Hobbit, nothing else.

[solicitr]

This topic came up a while back on The Barrow-Downs, and a post was made by a fellow who had been one of the designers of Lord of the Rings Online, whiose license of course derives from the Zaentz rights. According to him, the following rules were imposed on the designers, although where they came from he couldn't say:

1) Everything in the main narrative of LR was fair game
2) Everything in the Sil and UT was completely off-limits.
3) Material from the Appendices was okay, but subject to Rule No. 2: in other words, nothing which 'parallelled' Sil or UT could be used. This effectively put the First and Second Ages out of bounds, except for the brief mentions in the LR narrative.

[sauronsfinger]

Prim - thanks for the reply.....but the whole skeleton of the SIL is in the Appendicies. The main characters, their main actions, events and places, its there.

Its interesting that Tolkien sold these rights and then later rendered them (the First Age materials) nearly impotent and unusable by publishing the SILMARILLION.

Or are they?


Solicitr - thanks for your reply also. Yes, I understand that. However, that game licensing post says nothing about the actual legality of all this. It merely relates the rules one licensing firm went by. It really has no meaning as to the legal use of First Age stuff from the Appendicies.

In the contracts explained by Thompson on her own site, she explains that any sequels or further material written by Tolkien using anything from HOBBIT or LOTR would first have to offered to the current film rights holders if they were ever to be sold for film purposes. I guess the key words there are IF EVER.

[solicitr]

This raises a legal issue for which I'm not sure if a clear answer exists. It's made especially complicated by the fact that at the time the contracts were executed, Tolkien's other writings already were in being, and thus under copyright even though unpublished. Does a (possible) grant of rights to a summary of another work create a back door to the principal work? I don't know, and I've never seen a case which addressed it. Of course, how many works of fiction have appendices, and how many of those ever became hot movie properties?

What we need here is an IP lawyer. My area was criminal law with a civil-rights sideline, and Vor's is civil rights as well.

And then you get real gray areas: in the TT movie, Wormtongue gives a description of the Ring of Barahir (a rendition of which of course Viggo wore). Now, the LR mentions the ring, but the description lies elsewhere. Did PJ have a 'right' to the description? Or was this a de minimis technical infringement that nobody was going to get excited about?

[sauronsfinger]

Solicitr - you and I participated in a much larger discussion on this very topic on another site so it is ground we have plowed under before. I agree with you that there is no clear legal answer that exists.

Allow me to jump ahead and ask a question here. Can anyone cite a case where an author sold the rights to something, and then did something to render those rights - at least a part of those rights - virtually impossible to utilize?

If Zaentz exercised his rights to the First Age material in the Appendicies of LOTR and limited himself to just what is there and connecting the dots with his own filler material, he risks being roundly criticized for not really making a film about the SILMARILLION but inventing most of it as he went along. Fans have read the SIL and know who said what, who did what, and the entire story in detail. On the other hand, if he uses the material from the SIL that connects the dots in the Appendicies, he makes a more accurate and complete film but he risks strong legal action from the Estate. He is potentially damned if he does either option.

I do not know of a single situation like this in publishing or filmmaking. Could the legal department for the rights holders make the argument that the publishing of the SILMARILLION , and the holding of those rights by the Estate, decreases or harms the film rights that Tolkien himself sold to them?

[solicitr]

SF, you're overlooking the fact that The Silmarillion already existed in 1969.

[sauronsfinger]

No , I am not overlooking the fact that there were a bunch of papers of multiple versions of various stories in various boxes and piles on various desks in different rooms.

[Primula Baggins]

Those papers were Tolkien's copyrighted work, though, from the moment he wrote each word. It didn't matter that the papers had never yet been published. (Or that's the case now, anyway.)

Tolkien sold the rights to make films of LotR and the Hobbit. He wasn't obliged to do anything to make it easier for the owner of those rights to use them.

[sauronsfinger]

Question: If I sell you the rights to something, can I later recreate much the same thing and render your rights to use what I had already sold you meaningless or useless?

And aside from the legal question of that situation, is such a thing a moral or ethical or a fair business practice?

[Primula Baggins]

I'm looking at this as a writer, SF. If I sell you particular rights to a particular work, that's what I've sold you. I haven't sold you the right to control what I write next, or what I do with any fragmentary notes for other works that are included in what I sold you. If you want those rights, too, you'll have to talk to my (very tough) agent, get them into the contract, and pay for them.

I suppose if I deliberately and maliciously set out to make your rights worthless somehow, you could say I'd done you financial damage and file suit. But what I do next with settings and characters I invented is up to me.

[sauronsfinger]

But what if you take exactly what you sold me and just add more meat to the bone? Same basic plot, same basic setting, same basic characters, same events, same storyline .... just more of it.

You sold me a bill of goods.... but before I could actualize and use the rights you sold me ... you effectively render some of them useless.

Lets imagine I buy a short story of yours in which there are certain characters, a certain setting, certain major events take place, and a basic plot. I buy the rights to this from you and you accept payment. Then, years later, you have cause to publish a novel length version of the exact same short story that you sold me.

Now if I go ahead an make a film from the brief story that you sold me, I have to invent all sorts of stuff to connect the bare bones dots you provided to me. However, you have sold tons of copies of your novel length treatment and have legions of fans who know it like the back of the proverbial hand. If I invent my own dialogue and other things to hold it together, then I risk the scorn and rejection of your fans who know "the real story".

You sold me something and then took action to render it useless to me.

Is that legal? Is that fair? Is that ethical? Is that moral?

[Primula Baggins]

It would probably mess with my ability to sell any more movie rights. Beyond that, I really don't see how restraining a creative artist from a particular creation is fair, unless the artist agrees to be restrained by selling specific rights. A producer who was deeply concerned about this kind of thing could negotiate to buy the rights to the characters as well as the story, I suppose, though no smart writer would sell them.

This is kind of a pointless discussion, because Tolkien had already written the Silmarillion. He didn't decide to expand the appendices after he'd sold the rights. And I'm sure at the time he sold the rights, the idea that the appendices would be a valuable property in themselves, or would ever possibly be filmed, never occurred to anyone. Remember that initially, there was only going to be a single standard-length film based on LotR.