Film Rights to First & Second Age

[Sauron the White]

People would do well to pick up a copy of LOTR and read the Appendicies. Right there in Appendix A, Section I The Numenorean Kings (1) Numenor, there is a wealth of information that gives a filmamker tons of material. The following are mentioned in this section of LOTR:
Feanor and some of his actions, the Eldar, the Silmarils, the Two Trees, Morgoth and some of his actions, Thangorodrim, the exile of Feanor and the emigration of his people to Middle-earth, the war of the Eldar and Edain against Morgoth, the coming of the Edain to Middle-earth. There is listing of Luthien and Beren, Idril and Tuor, the lineage of those people and some of their actions including the taking of a silmaril from the Iron Crown of Morgoth, Dior and Elwing and the keeping of the silmaril. Gondolin and some of its people are listed. There is information about Earendil and his activities.

and then it says this:

"Of these things the full tale, and much else concerning Elves and Men, is told in The SIlmarililon."

And a ton of more information, even more detailed follows.

Consider these dates of progression:
1955 Return of the King is published containing the above information.
1969 JRRT sells films rights to LOTR including the above information
1973 JRRT dies.
1977 Christopher Tolkien oversees publication of a book length SILMARILLION expanding on much of the above information with much more added.

Consider that the film rights to the above information now lie in the hands of New Line Cinema and then Saul Zaentz when they expire in a couple of years.

Consider that Appendix describes these events and directly mentions The Silmarillion as the source of this information.

Consider that JRRT - in his lifetime - never published anything, or copyrighted anything which would change the rights he sold away.

Consider that Christopher Tolkien had published and copyrighted THE SILMARALLION four years after his fathers death and some eight years after the film rights to that material were sold.

Is it not possible, that a sharp legal staff with some innovative thinking, could well claim that they own the films rights to that material and anything published later and made known to the public can be used by them as well since it only details material which they already owned and had use of?

Could it not be legally argued that CT causing to be published the SIL after his fathers death, was the unfair diminishing of rights his father had already sold and were legally owned by others?

Yes, this would indeed be pushing the envelope and an attempt to expand upon what many now believe the film rights are constituted of. And yes, it would be an end run around the idea that THE SILMARALLION cannot be touched by New Line, Zaentz, Jackson or anyone else. But could it happen?

[Lalwendë]

If they tried contesting the estate and used some sneaky way of making films out of the material then it would be no better than stealing.

Would it be worth it? Many Tolkien fans would be upset by something like that and wouldn't go to see the film. And bearing in mind that the material in the Sil is worlds away from the clear-cut narrative of Lord of the Rings (the plot is a gift to a scriptwriter, it's so finely crafted), there's no guarantee it would turn up a good story. Nor is there any guarantee that fantasy films will even be popular in a few years, they're already beginning to die back, that's the nature of fashion. Oh yes, and the impending Credit Crunch - not that many studios will be too keen on risky, expensive films if that hits.

[Sauron the White]

Lalwende... I guess I am asking people here to stop thinking like Tolkien fans for a moment and to put on the guise of an attorney and think legally. Could not a case be made that it was Christopher Tolkien who - in your words - "used some sneaky way" of attempting to take back what his father had already sold?

I am not arguing against his publishing of THE SILMARALLION. I am only asking people to open their minds to a different understanding of the rights that were sold and how they could be utilized.

you also said this

Nor is there any guarantee that fantasy films will even be popular in a few years, they're already beginning to die back, that's the nature of fashion. Oh yes, and the impending Credit Crunch - not that many studios will be too keen on risky, expensive films if that hits.

Fantasy films in the style like LOTR never really were popular in the sense of westerns as a genre in the 30's and 40's or detective films or murder mysteries as a long time Hollywood staple. LOTR was the exception to the rule. And as far as funding, I have a funny feeling that a Tolkien movie helmed by the same people who gave us the first three would have little trouble in garnering the necessary funds to make and market them.

[davem]

Tolkien sold the rights to TH & LOTR & that's all. Sorry - in a way I wish you were right, so that Jackson & New Line could churn out a few more trashy Middle-earth movies, make the money they so desperately need & then, in a few years, we could forget all about movie versions & just get back to the books.

The constant demands of movie fans (most of whom would freak out so badly if you actually handed them one of Tolkien's books to read that their brains would turn to jello & leak out of their ears) for a Hobbit movie & a Turin movie & a Beren & Luthien movie & a Gondolin movie & a (fill in the blank) movie get increasingly depressing.

I'm now so bored by these constant demands for more Middle-earth movies that I can't even summon up the energy to

[zxcvbn]

Tolkien sold the rights to TH & LOTR & that's all. Sorry - in a way I wish you were right, so that Jackson & New Line could churn out a few more trashy Middle-earth movies, make the money they so desperately need & then, in a few years, we could forget all about movie versions & just get back to the books.

Is this a joke post?


The constant demands of movie fans (most of whom would freak out so badly if you actually handed them one of Tolkien's books to read that their brains would turn to jello & leak out of their ears)
My, my. What an accurate opinion you seem to have about non-purists. This kind of snobbishness is exactly what I dislike about purists. One does not have to be a purist in order to have read the books well(I've read them all multiple times and so far I haven't found any jello in my ears, thank you), and being a purist doesn't elevate you to a higher plane of existence so that you can judge others as you like.[/QUOTE]


I'm now so bored by these constant demands for more Middle-earth movies that I can't even summon up the energy to
To what, reply? Then don't.

[Sauron the White]

davem -- it is your knowledge of Tolkien that I respect more than almost any other on this site. In your post you dismissed my ideas saying

Tolkien sold the rights to TH & LOTR & that's all. Sorry

And are not the Appendicies with its clear and unmistakable mention of The Silmarallion and events part of LOTR?

While I do not have access to the original sales contracts between JRRT and the film company - UA I think - I imagine it included all pages of LOTR which would be inclusive of the Appendicies. And that includes lots of material from the First and Second Age as well as much Third Age material not in the body of either THE HOBBIT or LOTR itself. Is it your opinion that the currents rights holder does not legally hold those rights from the Appendicies? And what legally would you base that view on if it is your opinion?

[davem]

Is this a joke post?

No, it was meant to ironic.


My, my. What an accurate opinion you seem to have about non-purists. This kind of snobbishness is exactly what I dislike about purists. One does not have to be a purist in order to have read the books well(I've read them all multiple times and so far I haven't found any jello in my ears, thank you), and being a purist doesn't elevate you to a higher plane of existence so that you can judge others as you like.

I'm sorry, I was posting a response to StW, part of a long running argument between us on the quality (or lack thereof) of the LotR movies & whether there should be any similar fiascos in future.

I am, of course, pleased to hear that you have read the books.

And are not the Appendicies with its clear and unmistakable mention of The Silmarallion and events part of LOTR?

While I do not have access to the original sales contracts between JRRT and the film company - UA I think - I imagine it included all pages of LOTR which would be inclusive of the Appendicies. And that includes lots of material from the First and Second Age as well as much Third Age material not in the body of either THE HOBBIT or LOTR itself. Is it your opinion that the currents rights holder does not legally hold those rights from the Appendicies? And what legally would you base that view on if it is your opinion?

They have a right to use the word 'Silmarillion' in any future adaptation, to mention that The Silmarillion exists, but they don't have the right to use any material not included between the covers of TH & LotR. There is a great deal of material they could use in there, but nothing that isn't in there.

BTW, if you want to know exactly what material is available to use in LotR you could ask zxcvbn - apparently he's read LotR numerous times.

[The Might]

Now, now, zxcvbn everyone is entitled to their opinion and there is no need to be rude.
I don't see this as snobbish, as I am myself aware of many people around me that like LotR, but really know nothing of what is behind it and just go like:
"Wow, cool CGI!"

Now these I really can't call LotR fans, but only LotR film fans, so I believe we must make a distinction here.

As far as what each group wishes it is clear. The film fans all want more films, and as for the ones that also enjoy Tolkien's universe the opinions differ.
I mean, I for one would like to see another movie of LotR, because I personally find them ok. Of course they are not the books, but when I think of many of the good scenes I am happy they were made.

[zxcvbn]

I'm sorry, I was posting a response to StW, part of a long running argument between us on the quality (or lack thereof) of the LotR movies & whether there should be any similar fiascos in future.
What I took offence to was you generalising the film lovers as people incapable of reading Tolkien Literature; it gave me the image of a self-proclaimed high-class fellow looking down on what he considered the unwashed masses.

zxcvbn[/B] - apparently he's read LotR numerous times.

:DGlad to see you seem to value my knowledge; sadly I don't have anything more to add than what you've said.

They have a right to use the word 'Silmarillion' in any future adaptation, to mention that The Silmarillion exists, but they don't have the right to use any material not included between the covers of TH & LotR. There is a great deal of material they could use in there, but nothing that isn't in there.

[Sauron the White]

from davem

They have a right to use the word 'Silmarillion' in any future adaptation, to mention that The Silmarillion exists, but they don't have the right to use any material not included between the covers of TH & LotR. There is a great deal of material they could use in there, but nothing that isn't in there.

Yes, I understand that is the popular and conventional wisdom. And it is close what I believed for a long time now. However, why could it not be said, as part of a legal argument, that Christopher Tolkiens efforts to publish and copyright THE SILMARALLION had the effect of diminishing or restricting the rights that his father had already sold?

I am reminded that the very popular Christmas film, ITS A WONDERFUL LIFE, was first published as a simple Christmas card. The movie rights to it were sold for $10,000. Could the author then write a novelization of the Christmas card, copyright it, and claim that any such film could not be made from it even though the rights had already been sold?

I am not an attorney. But I do think this is a very tricky situation that goes much further than the conventional wisdom that has been around regarding what could be used and what could not be used regarding THE SILMARALLION.

I really think nobody knows for sure and it would take either one huge court case or mutual consent and cooperation for it to be decided. Two weeks ago I floated the idea of cooperation here and it seemed to fall on deaf or protesting ears. Maybe that leaves only one option... and that would be the worst one available.

[davem]

from davem
Yes, I understand that is the popular and conventional wisdom. And it is close what I believed for a long time now. However, why could it not be said, as part of a legal argument, that Christopher Tolkiens efforts to publish and copyright THE SILMARALLION had the effect of diminishing or restricting the rights that his father had already sold?

If it wasn't for Christopher the Silmarillion would be nothing more than a collection of mouldering papers. And in his will Tolkien left CT absolute control over all his unpublished writings. That CT took those writings & produced something that did not exist up to that point (ie The Silmarillion in a publishable form) gives him absolute legal right over it.

Or could you suggest how New Line, Jackson or Zaentz could have used that material before it was brought together by CT, when according to Tolkien's will no-one but CT had any right to it?

[davem]

Might be useful to have the section from Tolkien's will cited here:

’Upon Trust to allow my son Christopher full access to the same* in order that he may act as my Literary Executor with full power to publish edit alter rewrite or complete any work of mine which may be unpublished at my death or to destroy the whole or any part or parts of any such unpublished works as he in his absolute discretion may think fit and subject thereto’

*unpublished works

[Mithalwen]

Given that The Lord of the Rings was originally published without its appendices, I wonder whether legally speaking they form a part of of the "The Lord of the Rings" for the purposes of film rights ( NB This is not an instruction to any of our legal eagles hoping to rack up billable time). I would doubt it since it would mean that the outline of The Hobbit was sold with LOTR as part of the Appendices, and I seem to recall the film rights were sold separately.

[Sauron the White]

Mithalwen... you said this

Given that The Lord of the Rings was originally published without its appendices, I wonder whether legally speaking they form a part of of the "The Lord of the Rings" for the purposes of film rights

I believe your information is not accurate. I have a US first edition of ROTK published in 1955 and it has the appendicies as part of the book. I checked that edition before I posted this thread this morning just to make sure.

davem ... please understand that I am not finding any fault or error with Christopher putting together the SIL or finding a publisher for it. I am very glad that he did it. My point is more of a legal question based on the idea that when they bought the film rights to LOTR, everything in the appendicies was part of it. And that includes material that JRRT himself said was from The Silmarallion. When he used the term it was not really as a published book since that would not happen until after his death several years later. He was referring to it as a body of work on the First Age.

My point is this: is it not possible for a legal department to advocate that since the legally own that information in the Appendicies for the purposes of film, that they have the right to other more detailed information that JRRT had also written up until that time and referred to by name or character or event in LOTR?

I am not an attorney and would love to hear from one on this subject. But I do think it is an interesting perspective that is different than the conventional wisdom.

[davem]

davem ... please understand that I am not finding any fault or error with Christopher putting together the SIL or finding a publisher for it. I am very glad that he did it. My point is more of a legal question based on the idea that when they bought the film rights to LOTR, everything in the appendicies was part of it. And that includes material that JRRT himself said was from The Silmarallion. When he used the term it was not really as a published book since that would not happen until after his death several years later. He was referring to it as a body of work on the First Age.

No - he drew on material he had already written (& invented a great deal for the Appendices of LotR). The fact that he referred to 'The Silmarillion' is neither here nor there, in that at that time The Silmarillion didn't exist in a completed form. I honestly don't see where you're coming from with all this. Are you saying that if a writer sells the movie rights to one novel of a series that contains references to a previous novel in the series then the buyer of the rights somehow owns all the novels in the series - even the pnes that haven't been written up to that point?

I mean, are you saying that they have the rights to everything Tolkien wrote on M-e that could come under the heading 'The Silmarillion' - because a good part of it was written post LotR. Or should it only include M-e writings written up to the time Tolkien sold the rights? Or should it only include the Quenta Silmarillion proper - thereby excluding the Grey Annals/Annals of Valinor, the Gest of Beren & Luthien, the Narn i Hin Hurin, Athrabeth, Laws & Customs, the Numenor material, et al? What do you consider to constitute 'The Silmarillion' - everything Tolkien ever wrote on M-e? How much of the Gondolin material is part of The Silmarillion? The Book of Lost Tales material is not 'The Silmarillion' & the Later Tuor was written post LotR & not part of the Quenta Silmarillion proper.

My point is this: is it not possible for a legal department to advocate that since the legally own that information in the Appendicies for the purposes of film, that they have the right to other more detailed information that JRRT had also written up until that time and referred to by name or character or event in LOTR?


No, it isn't - apart from the fact that, as I've pointed out just now, what constitutes 'The Silmarillion' as referred to in LotR could be argued over till the cows come home, & what, exactly, was sold has been accepted by all parties for a long time now.

[Sauron the White]

Things are only accepted - until they are not. History and human nature have shown that again and again and again.

Up until recently, there seemed to be no interest in filming events other than the main body of LOTR and HOBBIT. And that still may be the way things are in reality. I, we, many of us are speculating about things that are only seen as shadows in the cave lit by a fire which at times burns bright and then wanes. So this is conjecture.

My point is a simple one that I feel nearly everyone has overlooked. The holder of the film rights to LOTR and HOBBIT owns much much more than most people have taken for granted. And, if they were willing to push the issue with some creative legal thinking, they could own even more.

[William Cloud Hicklin]

And are not the Appendicies with its clear and unmistakable mention of The Silmarallion and events part of LOTR?

What you appear to be asking is whether, somehow, The entire Silmarillion was, by its title being mentioned, incorporated by reference into The Lord of the Rings and hence its film rights?

No.

While I suppose one could try to film the two-paragraph synopsis, it couldn't track the remaining material at all.

Your other question about 'diminishing value' is just a roundabout waty of making a similar but even more audacious claim: that when UA bought the LR fim rights they somehow acquired an ownership interest in everything JRRT might publish in the future. Again, no. UA/Zaentz/New Lin's rights to do something based on the Appendices text is unaffected by the subsequent publication of The Silmarillion.

(But see the South Park episode where Chef is sued by a record company for "prospective plagiarism", for having written a song the company ripped off twenty years later).

If this chutzpatic theory had any merit, then surely New Line could make and distribute The Hobbit on the grounds that it's 'incorporated' in the LR!

[Aiwendil]

What you appear to be asking is whether, somehow, The entire Silmarillion was, by its title being mentioned, incorporated by reference into The Lord of the Rings and hence its film rights?


Maybe I'm missing something - but I didn't think Sauron's argument was this at all. Of course any such claim would be ridiculous. But this, surely is a valid point: the rights owned by Zaentz include any material in the appendices to LotR. Now, the appendices contain (almost) no information on the first age. Appendix A does, however, include a long synopsis of the story of the downfall of Numenor and the establishment of the realms in exile. One could, then, imagine the holders of the film rights attempting to produce an adaptation of this story (though there is, of course, vastly more material on the same subject that is not within their rights).

[Nerwen]

Appendix A does, however, include a long synopsis of the story of the downfall of Numenor and the establishment of the realms in exile. One could, then, imagine the holders of the film rights attempting to produce an adaptation of this story (though there is, of course, vastly more material on the same subject that is not within their rights).

But that's the problem– such an adaption would have to be either very sparse or completely inauthentic. All the detail's in the Akallabêth. I mean, the Appendix A version has one line of dialogue and says nothing about Amandil sailing West or Sauron's human sacrifice cult or Isildur rescuing the seedling of the White Tree.

The only way I can see to get round this is for the filmmakers to say they're drawing on Appendix A, then sneak in Akallabêth material to flesh the story out. They'd have to be prepared to go to court over it, though.

[Sauron the White]

Aiwendil is correct in saying that you are misstating my point.

WCH said

Your other question about 'diminishing value' is just a roundabout waty of making a similar but even more audacious claim: that when UA bought the LR fim rights they somehow acquired an ownership interest in everything JRRT might publish in the future.

Not at all. You are broadening the issue to the point where it reduces the arguement to absurdity or straw man status. Of course they would not have the rightsto everything JRRT would publish in the future. There is a key question here that is being ignored for one reason or another. What about JRRT and his heirs publishing expanded material which is already owned in film rights form by others? And I refer to the material both in the Appendicies as well as mentions of First or Second Age events in both LOTR and HOBBIT?

That is NOT "everything JRRT might publish in the future" as claimed. It is material already discussed by JRRT and sold as film rights.

Put yourself in the position of the holder of those film rights. You bought the rights, have yet to use them fully, and then see the heirs of the author rewrite the stuff you already own, albeit in far more detailed fashion and much fuller treatment. What would you as rights holder say about this?

Again, I am no attorney but I do think this is not as clear cut as some of you think. I also think such a claim could go a long way in the court system and the outcome would not be a sure thing for the Estate.

[Aiwendil]

But that's the problem– such an adaption would have to be either very sparse or completely inauthentic. All the detail's in the Akallabêth. I mean, the Appendix A version has one line of dialogue and says nothing about Amandil sailing West or Sauron's human sacrifice cult or Isildur rescuing the seedling of the White Tree.


I wasn't saying it would be a good idea.

[William Cloud Hicklin]

Your restated argument is no stronger. You're claiming that UA somehow bought everything to do with Numenor? No. First off, JRRT and thus his estate explicitly retained plenary rights over the written word. A claim based on derivative film rights doesn't affect that in any way, shape or form.

Put yourself in the position of the holder of those film rights. You bought the rights, have yet to use them fully, and then see the heirs of the author rewrite the stuff you already own, albeit in far more detailed fashion and much fuller treatment. What would you as rights holder say about this?

"Rewrite the stuff you already own?" Rubbish. Hollywood owns nothing but the right to make films. They don't own the underlying tales. "Rewrite" is of course bogus as well, since you know as well as I do that this material had been written long, long before 1968. If you want to regard The Silmarillion as something already in existence in 1968 (essentially true), then Tolkien did *not* sell those rights (and, I remind you, copyright applies to unpublished as well as published works). If you want to consider it as something Christopher 'wrote', then the film rights to it weren't even in existence to be sold in 1968, Christopher owns it, and no film rights are for sale.

The claim you're advancing is breathtaking in its audacity: you're asserting that, because the subsidiary material to The Lord of the Rings contains a synopsis of certain stories, that the author was thereby precluded from publishing the full-length originals? Again, that Saul Zaentz somehow 'owns' Numenor to the exclusion of its creator?

You can't get out of it by trying to differentiate the Estate- Tolkien's heirs own precisely as much copyright as he did himself: Christopher from a legal perspective merely stepped into his father's shoes.

It's really very simple: UA bought, and New line holds a temporary license in, the words contained between the covers of The Lord of the Rings and The Hobbit. Nothing else. If they want to try to expand the synopsis in the Appendices into an entirely bogus film-script, I suppose they could; but their right to do so is in no way 'diminished' by the fact that the genuine article exists beyond their control.

[Sauron the White]

from WCH - (who should know better)

Your restated argument is no stronger. You're claiming that UA somehow bought everything to do with Numenor? No. First off, JRRT and thus his estate explicitly retained plenary rights over the written word. A claim based on derivative film rights doesn't affect that in any way, shape or form.

Its an unfortunate given in some debates that each side or one side will ignore the actual truth in the others arguement and instead attempt to restate the opposing sides points in language that is far more favorable to themselves and then argue against that. And that is what you have done here.

I never claimed that UA SOMEHOW BOUGHT EVERYTHING TO DO WITH NUMENOR. If I did, please reproduce that section so I can see it with my own two eyes. You are a smart man who should know better. And we have gone round on other issues before and you should know I will not fall for this tactic.

I brought up an issue that many here do not even want to think about, let alone tackle and look at the implications. It is a legal one and not a literary one.

JRRT sold film rights to every single thing in LOTR and HOBBIT to UA before he died. Included in those rights is every word in the Appendicies. Then he died not having published the actual book version of THE SILMARALLION.

Do you agree with those facts?

My point is a simple one that people have not looked at before this - at least I have not seen it discussed. The current rights holders to both LOTR and HOBBIT own a wealth of material from previous Middle-earth history. They own the film rights to that. They do not own the film rights to the published book THE SILMARALLION edited by CT after his fathers death.

The fact is this: the publishing and copyrighting of SIL causes many legal questions to arise since much of what is in there was first published and included in LOTR and to a lesser extent in HOBBIT. If it was me, and I owned those film rights to that material, I would be very concerned that my rights have been severely diminished by CT causing to be published SIL.

Here is the position the rights holders are now in.

1- they can go ahead and include things from the Appendicies in a film and invent all the dialogue, place designs, character designs, and transitional scenes from scratch.

2- they can utilize the fuller descriptions of these things as found in the published SIL without actually filming the book as a movie in much the same way that Jackson used afew things outside of the actual LOTR.

3- they can film something like SIL using anything they want to use claiming that they owned the story first.

If they do any of these things, here is what can happen with each of those actions.

option 1 - critics here and elsewhere - the Print Purist community for lack of a better term - rip on that approach saying over and over again for years and years and years that the films are not authentic, made too much up out of their own heads, were creatures of invention, are NOT the Middle-Earth of JRRT, show no respect for the actual world of JRRT and Middle-earth and are, in short, a bunch of crap.

option 2 - risk being sued by the Estate

option 3 - risk a stonger chance of lawsuit by the Estate

Sounds like lose, lose , lose to me.

So the rights holders own rights which have been rendered problematic in the least and impossible in the extreme.

The diminishment of rights is a practical matter that renders those same rights in great jeapordy.

Some here may not want to look at it that way but I think it is very clear.

The published SIL makes the holders of those film rights sold free and clear by JRRT damned if they do and damned if they do not.

[zxcvbn]

A question I'd like to ask is: exactly how much of the Appendices do New Line have the rights to? I believe that the original editions of the book had smaller Appendices and they were expanded later in the 70s or 80s(which was AFTER Tolkien sold the film rights). I say this because a few years ago I read an article about the Middle Earth MMORPG game where the developers said that they had the rights to only parts of the Appendices.

[Sauron the White]

I have a copy of the first edition US of ROTK which contains the Appendicies. By the time the rights were sold in late 1969, the books would have been updated with any of the changes you refer to - if there were any.

[William Cloud Hicklin]

They do not own the film rights to the published book THE SILMARALLION edited by CT after his fathers death....

You understate the case. They do not own rights to any of the manuscript materials from which CT edited the published Silmarillion, nor any of JRRT's other writings, published or unpublished. These materials were off-limits to UA in 1968 and continued to be so after 1977.

...the publishing and copyrighting of SIL causes many legal questions to arise

You may be under the misapprehension that copyright comes into being when a work is published. It does not. It comes into being at the moment of the work's creation.



...since much of what is in there was first published and included in LOTR and to a lesser extent in HOBBIT. If it was me, and I owned those film rights to that material, I would be very concerned that my rights have been severely diminished by CT causing to be published SIL.

There you're simply wrong. This notion of somehow 'diminishing rights' is nonsense. The film rights incorporate the right to make films of the contents of the Lord of the Rings. Had The Silmarillion never been published, then, arguendo, New Line could make movies based on the Appendices, alone, without reference to the (unpublished) Silmarillion. Post-77, arguendo, New Line could make movies based on the Appendices, alone, without reference to the (published) Silmarillion. Nothing has changed and their rights have not diminished one iota.

Also, please get this straight: the fact that Tolkien died before the Silmarillion was published is entirely immaterial. His heirs have just as much right to it as he did himself, and you can't get anywhere by claiming that CT and his father are different persons.

Film rights are derivative. They exist only in conjunction with the existence of a specific written work, and have no bearing of any sort whatsoever on future related written works by the author. As stated, your argument would lead logically to the conclusion that Saul Zaentz held veto power over The Silmarillion's publication! Zaentz bought rights to make use of the sketch history of the Elder Days. He did not buy all rights to the First Age.

[Sauron the White]

Where did I say anything about the holder of film rights deserving a veto over publication of THE SIL or anything else?

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.

The facts are undeniable in that JRRT sold the rights to every single word contained in LOTR and HOBBIT in 1969. That includes the Appendicies. Then, later after his death, his heirs exercise their legal rights and cause to be published SIL. Fine. Nobody is disputing their right to do that.

But the problem is that the publication of SIL complicates material contained in it that is already owned for other purposes by UA.

The writer who has sold more books to screen than anyone else today is Stephen King. King does not complicate the arrangement by including the synopsis to his future books as part of his current ones. He does not sell the film rights to THE SHINING with inclusion of Appendicies which outline and describe the content and characters of his next several books.

JRRT did not do this. He sold the film rights to LOTR and H with all its inclusion of other material, Appendicies included. Then his heirs, took the foundation of that material, used additional writings by JRRT, and caused to be published a book length SILMARALLION.

Please answer me this question. If you are UA - or anyone else who holds those rights - what are you now suppose to do with them? You thought you owned something but now find out that it has been materially changed and altered makign it difficult for you to exercise the rights you paid for and were granted.

Again, and this has been ignored, here are your three options and results of exercising those options:

1- they can go ahead and include things from the Appendicies in a film and invent all the dialogue, place designs, character designs, and transitional scenes from scratch.

2- they can utilize the fuller descriptions of these things as found in the published SIL without actually filming the book as a movie in much the same way that Jackson used afew things outside of the actual LOTR.

3- they can film something like SIL using anything they want to use claiming that they owned the story first.

If they do any of these things, here is what can happen with each of those actions.

option 1 - critics here and elsewhere - the Print Purist community or anyone who can read and compare versions, - rip on that approach saying over and over again for years and years and years that the films are not authentic, made too much up out of their own heads, were creatures of invention, are NOT the Middle-Earth of JRRT, show no respect for the actual world of JRRT and Middle-earth and are, in short, a bunch of crap.

option 2 - risk being sued by the Estate

option 3 - risk a stonger chance of lawsuit by the Estate

Please address this very real problem.

[William Cloud Hicklin]

It's not a "very real problem". It's a completely artificial problem created from whole cloth.

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.

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. The legal remedies and penalties exist notwithstanding as soon as the creative work reaches 'any tangible form.'

This I think is what underlies your argument. You're trying to claim that The Silmarillion somehow came into being post-68 and therefore somehow illegitimately compromised what UA had bought.

The film-rights holders have precisely the same rights they had in 1968. You're trying to argue that the publication of an Official Version might invite invidious comparisons to a made-for-Hollywood Crap Version. Well, it might. Tough.

You thought you owned something but now find out that it has been materially changed and altered makign it difficult for you to exercise the rights you paid for and were granted.

Once again: in selling film rights to LR, Tolkien *in no way whatsoever* compromised his rights to write whatever he bloody well pleased. He could had he chosen to do so have rewritten the end of the Third Age so as to make Sauron a hero fighting Gandalf's evil plot to corner the illicit pipe-weed trade. And UA/Zaentz/New Line would have no- repeat, NO- say in it.

Again- your argument boils down to a claim that since Zaentz has a claim on the Appendix synopsis, he effectively has a right to protect whatever value that claim might have from 'diminishment' by the original author writing futher about his own fictional world! Nonsense.

To adress your three lose-lose-lose propositions- they were *always* lose-lose-lose. Option one is the empty right to invent a bogus non-Tolkien plot, which readers would assail. Quite true. It doesn't become any more bogus than it already was when the Author's canonical account appears.

[Sauron the White]

from WCH

Again- your argument boils down to a claim that since Zaentz has a claim on the Appendix synopsis, he effectively has a right to protect whatever value that claim might have from 'diminishment' by the original author writing futher about his own fictional world! Nonsense.

Why do you, an otherwise intelligent person, persist in deliberately twisting and misstating my words? Where did I say that the author - JRRT - should or could be restrained or stopped from writing about his own fictional world.

Please.

[William Cloud Hicklin]

That's exactly what you're saying. Disguised perhaps by an assertion that it's Christopher as if that made a shred of difference, legally.

You're objecting that Zaentz' rights are somehow 'diminished' because Tolkien-and-his-Estate had the audacity to publish additional material which was referenced in the Appendices. In other words, you're arguing that Zaentz has a 'right' to prevent that diminishment- which leads inevitably to some claim of a veto.

The alternative is equally preposterous- that Zaentz somehow has unfettered rights to the Silmarillion simply because the briefest precis of some of its content appeared in the LR.

Or what alternative remedy for this nonexistent problem have I overlooked?

[Sauron the White]

William .. the use of the strawman does not serve you well. Where in any of my posts on this subject do I state that Christopher should have been stopped, restrained, restricted, or otherwise prohibited from publishing THE SILMARALLION?

In fact, I said the direct opposite. I stated that I was glad he did so.

here it is for your benefit

please understand that I am not finding any fault or error with Christopher putting together the SIL or finding a publisher for it. I am very glad that he did it.

How can you construe that to constitute advocacy of prevention of publishing?

Where did I say that I supported any effort by Saul Zaentz to do the same?

I have stated before and will restate again in slightly different terms so perhaps we can better understand each other.

If lawyers for the Estate were asked to write down the rights regarding the Silmarallion or other material touched upon in the Appendicies, what do you think they would have to say about that?

And now lets put the same shoe on the other foot. If lawyers for Zaentz were asked to do exactly the same thing regarding their rights, what do you think they would have to say about that?

I do not need an answer.

What I would like is an admission that there is a high probability that those two lists would NOT BE THE SAME. I would speculate that the Estate would claim the film rights owned are far more limited than Zaentz would claim. And I speculate that the rights claimed by Zaentz would be much broader than those that would be conceded by the Estate.

Why would this be so? And this directly leads into the discussion here over and over again as to why we - who have no vested financial interest in either one - cannot agree about who owns what and what they can do with it.

The answer is the selling of the rights by JRRT and the eventual publishing of much of that same material by CT years later. Both give the holders a legal claim.

Right now, today even, minds other than ours are trying to comb these materials to see what they will use in two upcoming movies about Middle-earth. And I am willing to speculate that a few years down the road their will be more heated debate about who did what and what rights were violated.

This is not a question of one party having all the rights and the other party having none. Clearly, both parties have rights that can be said to interlock and overlap.
I would think it incumbent on both parties to sit down and attempt some mutual satisfactory understanding of both of their respective set of rights.

[davem]

This is not a question of one party having all the rights and the other party having none. Clearly, both parties have rights that can be said to interlock and overlap.
I would think it incumbent on both parties to sit down and attempt some mutual satisfactory understanding of both of their respective set of rights.

Why is it 'incumbent'? As far as I'm aware the only person arguing, or even suggesting, this is yourself.

Are any actual, Primary world, lawyers currently employed to fight this one out? Has anyone, either on Zaentz's or the Tolkien Estate's side even suggested there is any conflict over who has the right to what?

It seems to me that, outside of your own little Secondary world, where this supposed legal battle seems to have taken on the epic dimensions of the Dagor Dagorath, this is pretty much academic, because Zaentz seems totally uninterested in claiming the material.

[Sauron the White]

Given that today was the official announcement of the next two Middle Earth movies, and given that there will be material used in these films that has been and will be debated about, yes, I do think it is incumbent on both parties to work this out in a rational fashion.

Or perhaps one party would much rather simply go ahead and do as they please and the other party will then carp and complain about how they should not have done it. But both parties will stay far away from either a negotiating table or a courtroom so they can both maintain the rightness of thier respective positions. And their respective supporters around the world can continue the same discussions without any resolution.

And both can be comfortable in that knowing that the other side is just as much afraid of a final answer.

[William Cloud Hicklin]

Perhaps, Sauron, it would help if you clarified what remedy for this percieved violation of Zaentz' rights is appropriate.

I may be wrong, but I think you'll suggest that Zaentz or his licensee have the right to make use of anything and everything in the Middle-earth canon, because they somehow aquired rights in it all simply by buying rights to the Appendices.

The answer is the selling of the rights by JRRT and the eventual publishing of much of that same material by CT years later. Both give the holders a legal claim

No, they don't. UA purchased the rights to make films based on what appears between the covers of LR. The existence of the Silmarillion at that time, or its hypothetical publication by JRRT himself before or after the UA deal, or its eventual publication by CRT, do not alter those rights one jot or tittle.

[davem]

Given that today was the official announcement of the next two Middle Earth movies, and given that there will be material used in these films that has been and will be debated about, yes, I do think it is incumbent on both parties to work this out in a rational fashion.

What is to be worked out? This dispute is all going on in your head. Do you have any evidence at all that either side is arguing over this?

[Sauron the White]

WCH - when two parties both believe that they have some claim to the same property, they can do several things including
a- continue to insist they are right and ignore the other party hoping they are of like mind
b- attack the other party and fight it out any way you have to
c- sit down like intelligent and reasonable people and work it out

Given that these movies are announced and soon to be reality, I strongly favor option c. The announcement of these two films with intended use of material above and beyond the storyline of HOBBIT or LOTR makes this a very real matter.

[Sauron the White]

from davem

What is to be worked out? This dispute is all going on in your head. Do you have any evidence at all that either side is arguing over this?

Yesterday, you could have been correct. But today things have changed making this matter one of reality.

[davem]

WCH - when two parties both believe that they have some claim to the same property,

THIS ARGUMENT IS NOT HAPPENING OUTSIDE OF YOUR FEVERED IMAGINATION.

YOU URGENTLY REQUIRE A NICE CUP OF TEA & A SIT DOWN.

[William Cloud Hicklin]

Great. I believe I have an ownership claim to the White House. Therefore I can

a- continue to insist I am right and ignore the US Government hoping they are of like mind
b- attack the Government and fight it out any way I have to
c- sit down like intelligent and reasonable people and work it out

Please!


Why on earth should the Estate negotiate a compromise over rights which are indisputably theirs? Zaentz/New Line have no claim outside the covers of The Lord of the Rings. None. Zip. Zilch. Nada.

[Sauron the White]

White House??? NO - this is this. This is not something else.

I truly hope and pray that the next few years of news regarding these movies falls on the deaf ears of both davem and WHC. I would hate to read here how rumored inclusion of certain events in those movies are risking lawsuit because the film companies "does not own those rights" or they are "going beyond what they own". And I never, ever want to hear from the so called Tolkien scholarly community, doing shadow work for their friends in the Estate, about how the upcoming movies are a travesty and went beyond their scope.

Fat chance.

[William Cloud Hicklin]

The only 'rumor' currently in play is that PJ will make one movie covering The Hobbit, and another movie covering the next sixty years until Bilbo's farewell party.

The only material concerning this period is found in the Appendices,* indeed virtually all of it in Appendix B. If PJ wants to construct a bogus screenplay about Young Aragorn, so be it.

*There is the brief conversation between Gandalf and Saruman in UT. And, no, PJ can't use it.

[William Cloud Hicklin]

And I never, ever want to hear from the so called Tolkien scholarly community, doing shadow work for their friends in the Estate, about how the upcoming movies are a travesty

Incidentally, that's a scurrilous accusation and probably merits an apology.

[Sauron the White]

Nothing scurrilous about it. Just merely connecting some very obvious dots. Why is it that those closest to the Tolkien academic community are the most critical of the movies compared to the general public? And why is it that many of these peope have contacts with those who write the journal articles and espouse the most anti-film opinions? And at the same time what is the "official" position of the Estate on the movies? No position at all thank you. Now isn't that convenient.

Case in point

"I find both of the Jackson films to be travesties as adaptations... faithful only on a basic level of plot... Cut and compress as necessary, yes, but don't change or add new material without very good reason... In the moments in which the films succeed, they do so by staying close to what Tolkien so carefully wrote; where they fail, it tends to be where they diverge from him, most seriously in the area of characterization. Most of the characters in the films are mere shadows of those in the book, weak and diminished (notably Frodo) or insulting caricatures (Pippin, Merry, and Gimli)... [T]he filmmakers sacrifice the richness of Tolkien's story and characters, not to mention common sense, for violence, cheap humor, and cheaper thrills... [S]o many of its reviewers have praised it as faithful to the book, or even superior to it, all of which adds insult to injury and is demonstrably wrong..."

I wonder who said that? And do they have any financial interest in remaining loyal and friendly with the Tolkien Estate. That paragraph is nearly a template for post after post on this very site spewing anti film opinion.

Scurrilous? More like factual.

[William Cloud Hicklin]

I wonder who said that? And do they have any financial interest in remaining loyal and friendly with the Tolkien Estate. That paragraph is nearly a template for post after post on this very site spewing anti film opinion.

Perhaps because true students of Tolkien's writings might reach similar conclusions about the movies. Those who have spent the most time analysing Tolkien's subtleties might, after all, be inclined to a Purist persuasion, and more sensitive than most to PJ's bulldozing of same. You see, unlike your precious movie critics, Tolkien scholars actually know something about Tolkien, and are not, unlike film critics, ignorant of the original edifice PJ vandalized.

Yes, your charge is scurrilous. You're either accusing Christopher Tolkien of orchestrating a whispering campaign against the movies (when in fact he simply ducked his head and waited for them to go away); or you're suggesting that there is some sinister cabal who think their bread is buttered by sucking up to some anti-Jackson position. And what financial motive could there be anyway? If your quote is, as I think it is, from Carl Hostetter, he doesn't make a penny from his linguistic work.

And how do you explain this cabal's permitting Alan Lee to be given a book to illustrate (at CRT's personal request) after he worked on the movies?

Speaking for myself, I railed against the movies, along lines similar to what you quote, long before I ever learned CRT had any opinion at all.

Keep going along these lines and pretty soon you'll have brought in the Illuminati and the JFK assassination.

[Sauron the White]

nope, its not from Hostetter. Think much higher upon the food chain.

Keep going along these lines and pretty soon you'll have brought in the Illuminati and the JFK assassination.

You invent this cabal concept and then accuse me of being wacky believing in it? And then you bring up this. Where do you get all that straw to build so many men?

[Sauron the White]

WCH - its not fair to tease you. You may see the author of the template here

http://mysite.verizon.net/wghammond/

[Nerwen]

I'm getting confused. When I last saw this thread, the debate was over a purely hypothetical movie being made about the First or Second Age (specifically, about Númenor).

That has, as far as I can see, no bearing on the actual proposed films. Or do they want to use Of The Rings of Power and the Third Age for the second one? Is that it?

And Sauron the White, I've read through your arguments on the copyright issue several times, and I still don't understand them. At least, William Cloud Hickli stated exactly what I thought you were saying... and you say he's using "strawman" tactics, i.e. misrepresenting your arguments.

So, can you please explain yourself a bit more clearly?

[William Cloud Hicklin]

Ah, Wayne Hammond, is it? One of the best. And I suppose he does draw very modest royalties from his (limited readership) books- but certainly not enough to allow him to quit his day job. Most academics do, after all, write books.

What drew the conspiracy-theory quip from me was your use of the phrase 'connect the dots.' One which, unfortunately, is used by a lot of tinfoil-hatters, and exemplifies the sort of 'logic' they use. Over the top of me.

Nonetheless, I don't especially like the insinuation that people only dislike the movies for some venal motive. Isn't it really rather the case that Tolkien Scholars are by their very nature purists?

[Sauron the White]

Nerwen ... I will try as you request.
My point is that it is not clear what rights are owned by the Tolkien Estate and what rights are owned by Zaentz and New LIne when it comes to material outsideofthe actual HOBBIT and LOTR stories.

Why? Because JRRT included a wealth of historical information in his Appendicies which were part of LOTR - ROTK and sold as film rights in 1969. Eight years later, the book length SILMARALLION is published and now there are two accounts of these events.

Many people here, including Mr. Hicklin, speak as if they have a Supreme Court decision in front of them clearly spelling out in great detail what can be done and what cannot be done with these film rights. This is not the case in reality. There is much grey area .

Since it was announced today that other material will be used in the upcoming two films outside of the normal LOTR and HOBBIT stories, I thought it would be a good idea to explore the entire idea and approach it from something other than the convention wisdom.

My point has nothing to do with CT causing to be published the SIL. Nothing. I think that was terrific. But it certainly makes the film rights to the Silmarallion material in LOTR a much more murky situation which I think is glossed over by folks like Mr. Hicklin who appear to think their viewpoint is Holy Writ or came down from the mountain top led by a choir of angels.

I refer you to my opening post in this thread.

[Aiwendil]

Many people here, including Mr. Hicklin, speak as if they have a Supreme Court decision in front of them clearly spelling out in great detail what can be done and what cannot be done with these film rights. This is not the case in reality. There is much grey area .


Surely it's this simple: the film rights include material in the LotR appendices but exclude material in other publications. Explicit use of material that is in the Silmarillion and not in the appendices would be illegal. You don't need a Supreme Court decision to tell you that any more than you need one to tell you that, yes, pointing a gun at someone and shooting it is illegal (even if the gun is licensed).

There is a potential grey area relating to the appendices: it's conceivable that if a movie were made there might be material in it about which it's not clear whether the '77 Silm. or HoMe was or was not a source. But the ambiguity in such a case could only lie in whether the film used ideas from works other than TH and LotR, not whether the use of such intellectual property is legal.

[Nerwen]

STW, thanks for explaining your position. What I still don't understand is why you think CT's act of publishing The Silmarillion affects the rights to material in The Lord of the Rings.

I don't see how this can be the case.

Are you suggesting that lawyers for Tolkien Estate might claim anything which is treated in both The Lord of the Rings and The Silmarillion violates the copyright on the latter? I don't think they'd get very far.

[davem]

And I never, ever want to hear from the so called Tolkien scholarly community, doing shadow work for their friends in the Estate, about how the upcoming movies are a travesty and went beyond their scope.

Fat chance.

Exactly - because New Line & Jackson know what their limitations are regarding what material they can & cannot use. If they choose to make a movie within those restrictions & mess up, it will be their fault. NL & Jackson are not victims here. If they want to avoid the kind of criticisms you're talking about they can adapt other some writer's work - or come up with something original.


Plus, I do have to point out (again) that Jackson et al do not actually care what Tolkien wrote, & are prepared to alter & invent whatever nonsense they like to replace Tolkien's carefully & lovingly created work. If they had access to all of Tolkien's M-e writings it would not change anything - they will do what they want. And I think you'd find a much more antagonistic response from 'purists' if they did have access to all Tolkien's material & did what they did with LotR all over it....

[Lalwendë]

Ah, Wayne Hammond, is it? One of the best. And I suppose he does draw very modest royalties from his (limited readership) books- but certainly not enough to allow him to quit his day job. Most academics do, after all, write books.

What drew the conspiracy-theory quip from me was your use of the phrase 'connect the dots.' One which, unfortunately, is used by a lot of tinfoil-hatters, and exemplifies the sort of 'logic' they use. Over the top of me.

Nonetheless, I don't especially like the insinuation that people only dislike the movies for some venal motive. Isn't it really rather the case that Tolkien Scholars are by their very nature purists?

I don't like it either, for two very good reasons. Firstly, those involved with the Estate are in general very nice people, and those of us in the Tolkien Society will vouch for that - they are friendly, open and generous. And membership of the Tolkien Society is hardly like the ruddy Freemasons, anyone can join for twenty quid.

The other reason is that a lot of long-time Tolkien fans feel a little bit annoyed that the work of this man, the lifetime's work, is subject to being picked over like the corpse of an Orc. We live in a world where nothing is left unexploited for the great god of Mammon, even the water we drink is costed and turned into profit. It makes a lot of fans a little bit sick to think of people like Peter Jackson sitting in his calf leather armchairs, swigging ruddy Chateauneuf De Pape and eating truffles off the back of a slave boy or something because he's made a profit out of the literature we've quietly loved for years before he'd even heard of it.

Fine, he can make his films, they will no doubt be enjoyable and I for one am looking forwards to collecting some more action figures, but he certainly cannot expect us not to criticise and discuss what we think he's doing wrong. And to be fair - I think he expects us to carp at him. He needs to bear that in mind before considering writing about Gandalf turning the Spiders of Mirkwood into zombies and having Thranduil fling a lawnmower at Thorin. ;)

[Sauron the White]

Lalwende - I do understand some of your ire. But just to be clear, Pater Jackson did not make a profit off the literature written by JRRT. His money came from making three movies based on the work of JRRT. There is a difference. You make it sound like Jackson did what Ace Books did and ripped off Tolkien to reap undeserved profits.

[William Cloud Hicklin]

My point is that it is not clear what rights are owned by the Tolkien Estate and what rights are owned by Zaentz and New LIne when it comes to material outsideofthe actual HOBBIT and LOTR stories.

Why? Because JRRT included a wealth of historical information in his Appendicies which were part of LOTR - ROTK and sold as film rights in 1969. Eight years later, the book length SILMARALLION is published and now there are two accounts of these events.

Many people here, including Mr. Hicklin, speak as if they have a Supreme Court decision in front of them clearly spelling out in great detail what can be done and what cannot be done with these film rights. This is not the case in reality. There is much grey area .

There is NO grey area. There are no overlapping rights. There is no ambiguity, except in your fevered imagination. NONE.

It's amazingly simple. Zaentz/New Line can use material found between the covers of the Lord of the Rings. Period. That's it. The existence of other Middle-earth material changes nothing- they have no rights to it. PJ is constrained to doing what he did with, say, the (EE) Gladden Fields- stick to the very brief LR account without any reference at all to the detailed UT narrative of the same event.

Christ, this is (for a lawyer) as maddening as it is for a paleontologist confronting some no-evidence-for-evolution Fundamentalist.

[Sauron the White]

So there is no overlapping of any material contained in LOTR and SIL?

[William Cloud Hicklin]

AAAARRRGGGGHHHHHHH!!!

I'm sorry, but my head is becoming extremely sore from repeated collisions with a brick wall.

Let's try this: Imagine a Venn diagram with two overlapping circles, like the MasterCard logo. Label one 'Lord of the Rings' and the other 'Silmarillion.'

Now, New Line gets everything inside the LR circle, including the overlapping portion. New Line gets nothing outside it, including the remaining portion of the Silmarillion circle. Clear? I hope so.

However, let's be clear about what lies inside that overlapping area. One can't claim that because Aragorn tells a brief version of the Lay of Leithian below Weathertop, that thereby every element of the subset 'Beren and Luthien' is thereby moved into the overlapping area. Only the specific elements and incidents Aragorn relates fall into that zone. No Huan the Hound, no Nargothrond or Finrod, no Hunting of the Wolf, no overthrow of Taur-in-Gaurhoth: all those elemenmts remain in the non-overlapped part of the Silmarillion circle, and off-limits.

[Sauron the White]

Allow me to be just as clear in the hope we can better mutually understand each others positions.

Based on what you know, both of the Tolkien film rights situation, the writings of JRRT, the holdings of the Estate, and the law itself, could the current film rights holders of both THE HOBBIT and LOTR make a film in which the following happened or is depicted under the title Tales of the Silmarallion:

- 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

That would seem more than enough for one film.

Would the current rights holder of film rights to LOTR have the right to include those events or character depictions?

You asked me to be specific and thats really specific.

[William Cloud Hicklin]

Theoretically, it could be done (although use of the title 'silmarillion' would create trademark problems independent of copyright concerns)

However, your hypo film could not include-

-the Music of the Ainur
-any description of Valinor
-any Valar save Varda and Morgoth
-the awakening of the Elves
-the House of Finwe aside from Feanor
-any details of the Darkening, such as Ezellohar or the Ring of Doom, or Ungoliant's presence (Ungoliant's existence as an ancestor of Shelob could be deduced, but no tale or incident involving her whatsoever)
-any mention of the Oath or the Kinslaying
-any description of Thangorodrim
-the founding of Gondolin, or Turgon's ancestry
-the founding of Nargothrond or any description thereof
-Any of the Five Battles of the War of the Jewels
-Fingolfin's duel with Morgoth (identifying the original Grond as 'the Hammer of the Underworld' doesn't go any further than that)
-any part of the Tale of Turin
-any part of the Tale of Tuor
-any part of the Tale of Tinuviel, save the specific elements related by Aragorn
-any part of the Fall of Doriath or the sack of the Havens; indeed no mention of the Havens at all
-any part of the Tale of Earendil except for whatever can be squeezed out of Bilbo's Song

and on, and on, for 400 pages of the Silmarillion.

So you're trying to write a film script derived entirely from a one-paragraph synopsis. In other words you'd be in the same situation as the rather funny attempts in various fan-newsletters, pre-77, to predict The Sil's contents.

Likewise, a film of the Fall of Numenor could be cobbled up from Appendix B, but no mention at all could be made of the details found only in The Akallabeth, like the Temple of Morgoth or the voyage of Amandil.

[Sauron the White]

WCH - thank you for this answer

Theoretically, it could be done (although use of the title 'silmarillion' would create trademark problems independent of copyright concerns)

I take it then that your answer to my question is YES.

Regarding the title - the Appendicies - A - state that those incidents and characters come from The Silmarallion. I would state that my title merely says where I obtained this material. But fine.

Thank you for telling me what I could not put into the film. I feel I have more than enough on the plate for a full film with the list as I provided. And I appreciate your concern about the difficulties of making a film from a short synopsis. But that is sometimes how films are sold. I understand that one of the most beloved films of all time came from a simple greeting card.

Next question: Could the Tolkien Estate, sell the film rights to THE SILMARILLION to a producer creating a film of its tales including 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

If the Estate sold those rights, would a film maker have the legal right to make that film?

[William Cloud Hicklin]

If the Estate sold those rights, would a film maker have the legal right to make that film?

Ah, I see where you're going. You're suggesting that, were the Estate hypothetically to sell the film rights to The Silmarillion, then Zaentz would be able to attack that sale, or rather part thereof, on the basis that he already owns the film rights to specific incidents included in the Appendices to LR.

Possibly so.

However

A) it ain't gonna happen

B) the issue turns on whether JRRT sold UA an exclusive or non-exclusive license. If the latter, the Estate is free to sell another license to somebody else

C) the issue also turns on whether the JRRT/UA contract explicitly excluded the Elder Days- which well it might. Tolkien was very protective of that material.

(B) and (C) of course are irreducible unknowns, so long as the actual contract remains secret. And the whole exercise is moot, given (A).

[Mithalwen]

Mithalwen... you said this



I believe your information is not accurate. I have a US first edition of ROTK published in 1955 and it has the appendicies as part of the book. I checked that edition before I posted this thread this morning just to make sure.




To clarify ..having checked it was the index that was missing - the appendices delayed publication but were included.

However it may be worth adding that it seems that there was a great disparity in English and US copyright legislation else the rip off edition would not have been possible.

[Sauron the White]

Mr. Hicklin... you previously told me this

There is NO grey area. There are no overlapping rights. There is no ambiguity, except in your fevered imagination. NONE.

You have been fair and good enough to walk through the previous exercise with me regarding the rights held by the currents LOTR film rights holder and rights held to future films in the hands of the Estate. The films I presented you with were in made up of the same events.

Do you still insist that there are no overlapping rights?

Regarding the second half of your post:

However

A) it ain't gonna happen

B) the issue turns on whether JRRT sold UA an exclusive or non-exclusive license. If the latter, the Estate is free to sell another license to somebody else

C) the issue also turns on whether the JRRT/UA contract explicitly excluded the Elder Days- which well it might. Tolkien was very protective of that material.

allow me to address each -
A) My rather limited abilities do not enable me to look into the future. As such I will leave that to those who can give me tomorrows lottery numbers today.
B)YES - however do you think the right to make films from LOTR is an exclusive license - and I realize you are not privvy to the contracts. I would have to believe that it is an exclusive license but I would be willing to be proven wrong.
C) In the absence of proof for such a claim, we have to proceed as if no such exclusion existed. But again, if you have proof I would be willing to be proven wrong.

Regardless, none of that has any impact on your statement chastising me and questioning my mental processes for stating that there were areas of overlap in the rights held by each party. I believe that has been clearly demonstrated with your able assistance.

[davem]

Now, although I much prefer to contribute to this discussion by way of withering put downs, I did just look up Tolkien Enterprises on Wikipedia:

Tolkien Enterprises (TE), a trading name for the Saul Zaentz Company, owns the worldwide exclusive rights to certain elements of J. R. R. Tolkien's two most famous literary works; The Lord of the Rings and The Hobbit. These elements include the titles of the works, the names of characters contained within as well as the names of places, objects and events within them, and certain short phrases and sayings from the works.

TE licenses these rights out to other companies for use as trademarks and service marks. It also owns the rights to certain copyrightable elements of these two works, such as film and stage productions. Tolkien sold these rights to United Artists in 1968, who in turn sold them to Zaentz in 1976.

[Sauron the White]

Thank you davem for that information. I guess now the $500 per hour attorneys can hold forth on what that means.

[davem]

Here also is a list of "all the character, places, items, etc. which are copyrighted by Tolkien Enterprises."

http://tolkiengateway.net/wiki/Tolkien_Enterprises%27_copyrights

No mention of the words/names 'Silmarillion', 'Feanor', 'Turin', 'Numenor', or 'Valar'.

[Mithalwen]

Well clearly they licensed the musical (it says so in the programme apart form anything else), the LOTR character names are their trademarks which is largely protecting merchandise (though what attraction those creepy dolls that resemble the actors only enough to disturb is I don't know - they must make some money on them beofre they end up in TK maxx).

The main implication for any hypothetical film based on the other works would be that they wouldn't be able to call Elrond (and presumably Glorfindel)
Elrond and Glorfindel without the permission of T-Enterprises and coughing up the money. Tyoical that these are among the few characters in the whole shebang with just the one name.... I don't think you can trade mark dictionary words so they could probably use Blue Mountains and so forth butmaybe not Rivendell.

Now that I think of it I recall that the Elf who fulfilled the the role of Gildor wasn't called Gildor in the musical but Elranien(wandering elf) - which may suggest that not all the names are trademarked.

[William Cloud Hicklin]

No, StW, there are no overlapping rights. There may be bifurcated rights, which are a different thing.

[Sauron the White]

davem ... thank you for providing that list. I did access it and it says this right at the top

The list was on their website some years ago and is by no means official.

So it may or may not mean anything as it pertains to this discussion.
-----------------------------------

WCH -

I hate it when otherwise good discussions come down to the old definition of terms. I remmeber my years on the debate team in college where they taught us that defining terms in your favor was one of the the easiest way to win a debate.

Despite our earlier exercise where it became very very clear that the film rights held by Zaentz and New Line and the film rights held by the Estate could well involve exactly many of the same things, you still insist that

No, StW, there are no overlapping rights. There may be bifurcated rights, which are a different thing.

It would have been a positive step towards furthering your position if you could have explained what you believe the two are and why they are different. But you simply made the statement like so much being handed down from On High. Which is of course your right.

So allow me to take out my trusty three volume copy of Websters Third International Dictionary (1981) and quote for you regarding the word OVERLAP as found on page 1,608.

among the offerings in a long list of offerings are

to extend over and cover a part of
to have something in common with
coincide in part with
to occupy the same area in part with

English is my first language. Heck, its my only language. I understand what overlap means and it applies perfectly here.

The only way it would not be if one of your A, B, C, options were true and UA was granted exclusive rights to everything from cover to cover of LOTR. Then could could make a case that it is the Tolkien Estate itself which has no right to use any of those things and in that case, an absence of rights on their part would mean no overlap as I claimed. I do find it hard to imagine that would have occured. However, I am not taking that position here without detailed knowledge of that legal arrangement.

My entire argument is based on the assumption that Zaentz and New Line own rights to the things in the Appendicies and the Estate owns the rights to what is in the book THE SILMARALLION. If someone can show factual information that shows either party does not have these rights, then my assumption changes.

---------------------------------------
Mithalwen .... the absence of the index in the First Editions of LOTR is true as you discovered. It does not however have and impact on my argument regarding these rights.

[William Cloud Hicklin]

StW:

You do understand the difference between primary and derivative rights, don't you?

[Sauron the White]

Just to make sure we both are on the same page, explain it to me like I am a four year old ..... as Denzel Washington once said.

[Sauron the White]

Nerwen... in a previous post you asked this question of me. I am sorry but I did not give you a speedy answer. Here is what you asked of me

Are you suggesting that lawyers for Tolkien Estate might claim anything which is treated in both The Lord of the Rings and The Silmarillion violates the copyright on the latter? I don't think they'd get very far.

I make no claims regarding the copyright on SIL or LOTR. Both of those books were legally copyrighted under the law and as such have protections.

I do say that because of the timeline of the various publications and selling of film rights there are now problematic areas due to overlapping rights.

I refer you to the timeline in my earlier post showing that LOTR with its Appendcies was copyrighted in 1955 and sold as exclusive film rights to UA in 1969. After the death of JRRT, his son Christopher had a book length SIL published in 1977 and its copyright was registered at that time.

This created a situation where the many characters, settings and events found in the Appendicies and many of the same plus more are also found in the book length SIL. UA, and then Saul Zaentz, and now New Line Cinema, hold the film rights to LOTR and that includes the Appendicies with all the mention and description of First Age Events.

I contend that, and believe I have demonstrated that there are now overlapping rights regarding this material. It places the current film rights holder in a very tricky position regarding the Appendicies material.

In exchange with Willaim Cloud Hicklin yesterday, we agreed that New LIne could make a film which contained the following events and characters

- 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

All this is mentioned directly in the Appendicies and it says it is from The Silmarallion. So the current film rights holders could make a movie about all this.

However, all of those events are also mentioned and discussed further in the book length SIL which the Tolkien Estate retains film rights and Mr. Hickline says they will never be sold.

The publication of the book length SIL was a perfectly legal action and well within the rights of CT and the Estate. No dispute there. But it does create a very practical and thorny problem for the current film rights holders.

If New Line or a future designee of Saul Zaentz were to exercise their legal rights and make a movie of those events from the Silmarallion found in the Appendicies, they now have the unique problem of their work being held up to ridicule because another work presents a different picture of those events, settings and characters. And if they dare to refer to the book length SIL and use any of that material to make sure they get it right, then they run the very real danger of being accused of violation of the SIL copyright and using rights they did not have.

All this because the film rights were sold at a time when no book length SIL had been published or legally copyrighted. There was no competing book length SIL in existence that had been legally copyrighted when the film rights were sold. All that came years afterwards.

It puts the current rights holders in a position of damned if they do and damned if they do not. If they make a film and ignore the actual book length SIL and fill in all the blanks on their own from the Appendicies, they risk ridicule, derision and potential damage to their ability to market and do business with their product because "its not the real thing. You made most of this up and we can prove it by comparing the real book length SIL to your movie".

That situation did not exist when the film rights were sold in 1969. Now it does.

The publication of the SIL has greatly compounded the situation and created overlapping rights. I have said that the current rights holders could make a case that they now have a property which has been diminished.

We now have a situation where two more films were announced this week and at least one will be made up of material taken from the Appendicies.

I have said that these two parties, should work this out potential problems before this happens.

That will not happen. Both parties would much rather beat their respective chests and claim that they own certain rights and the other side does not and then proceed independently of the other. And for the next five to ten years we will again be debating, disputing and arguing about what was done, was it right and legal, did they go too far and all the same stuff that goes nowhere.

[Nerwen]

It puts the current rights holders in a position of damned if they do and damned if they do not. If they make a film and ignore the actual book length SIL and fill in all the blanks on their own from the Appendicies, they risk ridicule, derision and potential damage to their ability to market and do business with their product because "its not the real thing. You made most of this up and we can prove it by comparing the real book length SIL to your movie".

That situation did not exist when the film rights were sold in 1969. Now it does.

The publication of the SIL has greatly compounded the situation and created overlapping rights. I have said that the current rights holders could make a case that they now have a property which has been diminished.


Ah, I think I understand where you're coming from now. The publication of The Silmarillion didn't make any difference to the ownership of the film rights to the LotR Appendices– what it did is make those rights (arguably) not worth having. Is that it?

[William Cloud Hicklin]

All this because the film rights were sold at a time when no book length SIL had been published or legally copyrighted. There was no competing book length SIL in existence that had been legally copyrighted when the film rights were sold. All that came years afterwards.

It puts the current rights holders in a position of damned if they do and damned if they do not. If they make a film and ignore the actual book length SIL and fill in all the blanks on their own from the Appendicies, they risk ridicule, derision and potential damage to their ability to market and do business with their product because "its not the real thing. You made most of this up and we can prove it by comparing the real book length SIL to your movie".

That situation did not exist when the film rights were sold in 1969. Now it does.

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.*

To follow on from mine hereinabove, 'derivative right' is the right to adapt or transform a creative work from one medium to another. In this case from book to film. Now, the Copyright Act makes a very important point (one of those which courts get very exercised over):

The copyright in a compilation or derivative work.....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.

*No* exclusive right in the pre-existing material. Derivative rights are *fixed*. they do not, ever, expand; in this case, the derivative rights to make movies about Feanor or for that matter Aragorn do not increase if Tolkien-and-heirs make use of those characters in another book.



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.

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.



The situation poor little multizillionaire Zaentz finds himself in (besides being far richer than the whole Tolkien family put together) is no different at all from any producer who buys derivative film rights to a novel, including the characters therein, and subsequently the author publishes a sequel. Sure, that diminishes the inchoate value of whatever bogus movie sequel might have been planned. Tough.

Or to take a real-world example, where the film-book relationship is reversed: George Lucas' decision to produce the second set of Star Wars films contradicted and thus lessened the 'value' of parts of Timothy Zahn's (and others') Star Wars novels. Do you think Zahn has a claim?


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.

[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]

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

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]

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?

[Nerwen]

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.

[davem]

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??

[Mithalwen]

-----------------------------------

WCH -

I hate it when otherwise good discussions come down to the old definition of terms. I remmeber my years on the debate team in college where they taught us that defining terms in your favor was one of the the easiest way to win a debate.

---------------------------------------
Mithalwen .... the absence of the index in the First Editions of LOTR is true as you discovered. It does not however have and impact on my argument regarding these rights.


I never said it did.... and how can one discuss the law of intellectual copyright without definition of terms ..?

Though I' m not a lawyer, half my family are and I have worked as a legal secretary/admin, and having seen my erstwhile employers eyes light up at the prospect of the billable hours they could clock up in dissecting knotty problems in a different field (they were licensing lawyers and the lunch at which we discussed exactly what constituted nude dancing was one of the more entertaining aspects of my time with them!), 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.

Anyway I will leave it there while I still have the will to live ...

[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]

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.

[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.

[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.

[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.

[William Cloud Hicklin]

Of course now all you're arguing is IT'S NOT FAIR!

Well, what's 'fair' about claiming that a 'significant part' of the film license you bought was in fact a one-paragraph footnote completely disregarded at the time, and of no value whatsoever until this evil Junior Tolkien attached value to the Silmarillion name?

What's 'fair' about making many, many times more money off those derivative rights than the original creator of Middle-earth and his heirs have received in fifty years?

And what's 'fair' about shamelessly profiting from action figures and much worse which the original author would have committed seppuku before permitting, had he but realized that the sharpies from UA had a very, very flexible idea of the term 'merchandising?'

Cry me a river. Saul Zaentz was a two-bit no-class chiseler when he ripped off John Fogerty, and nothing's changed.

[Sauron the White]

And WCH - your imaginary tract of land, your dream of a hog farm empire, your now Failed but once Hot Young Author, your O. J. Simpson and their problems, hopes, dreams, adventures and difficulties, all have nothing to do with this. Nothing.

Again, this is this. This is not something else. This is this.

My sincere thanks to Mr. DeNiro.

[William Cloud Hicklin]

They have everything do do with This. They are illustrations of Property Law. Are you capable of abstraction?

[Sauron the White]

WCH - I do not remember making the argument based on "its not fair". It seems again that you try to create the strawman and then smite him down hard and fast while the crowd cheers your manly and heroic efforts.

By argument is based on the very simple that Party A sold something to Party B. They were paid for it. But before Party B could exercise some of their rights granted to them under the sale, Party A takes extra-ordinary additional steps which have the direct effect of rendering their investment - MADE TO Party A - now worth little to nothing since they can not use it without risking ridicule, incurring financial damages or risking a lawsuit. And who would do that suing in court you ask?
Guess who folks? Its Party A.

Now I tried to substitute legal terminology here to get past the use of hot button names like Zaentz, Jackson, JRRT, CT, Estate, and all the rest who come wrapped up in this situation.

And if anyone cannot fill in the proper names, Party A is JRRT and his heirs, Party B is UA and their subsequent rights holders.

Maybe with just the intiials its a little more less emotional.

[Sauron the White]

WCH asks

Are you capable of abstraction?

I am but a humble man striving mightily to just keep my head above water. Its all I can do to deal with real water and not get caught up in the abstract deluge.

[William Cloud Hicklin]

Well, Sauron, it seems your only remaining argument is based on 'fairness,' since you have none at law.

I should point out of course that Party A took nothing resembling 'extraordinary additional steps.' He published his father's manuscript. That's all. If UA were really interested in The Silmarillion film rights, they could have bought them from JRRT. They did not.

And do you really think 'Party B' had any intention, or ability, or prospect of revenue, in making a 'Silmarillion' movie BEFORE 'Party A' took those 'extraordinary steps' in 1977? Please. UA got, tossed in as a disregarded freebie, a then-valueless one-paragraph synopsis. It's only valuable now thanks to the 'extraordinary steps' of 'Party A.'

And your assertion that Party A's actions rendered Party B's investment 'worthless' is a bit rich, considering that Party B and his licensees have raked in something like a billion dollars from the deal. Party B wanted The Lord of the Rings. They got it. They made movies of it. They generated squillions of dollars.

I can't bring myself to feel sorry for poor, abused Party B.

[Sauron the White]

William ... you said

I should point out of course that Party A took nothing resembling 'extraordinary additional steps.

Could you please name for me another situation in which an author sold film rights to something and then years later had it repackaged in a longer book length form and it had the effect of rendering some of the original film rights to lose their value?

I would call that extraordinary additional steps. But if you can find other instances to show that it is an ordinary business practice in the publishing or fim industry, I would be happy to read about them and change my mind and statements.

If UA were really interested in The Silmarillion film rights, they could have bought them from JRRT. They did not.

In point of fact, they did buy the only published Silmarillion based tales in 1969. They did just what you said they should have done.

[Nerwen]

I'd just like something clarified.

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.

STW, I gave you the link to that site precisely so you could see that there is no difference.

Have you conceded that point now?

[Sauron the White]

The link you gave me stated that if one registers their copyright with the government that there are additional benefits one can receive. Additional damages, attorneys fees and the ability to use the filing as evidence.

So there is a difference.

If not, why would anyone ever pay the $30.00 fee?

[William Cloud Hicklin]

No, they didn't in any real sense. "Published" is irrelevant, remember?

In any event, the synopsis in the Appendices does not purport to be 'The Silmarillion.' By its own terms,
Of these things the full tale, and much else concerning Elves and Men, is told in The Silmarillion

So, a prima facie declaration that The Silmarillion was a separate work with an independent existence- and moreover, one which everyone even dimly aware of Tolkien in the late 60s knew was supposed to be nearing completion.

It's still rather gobsmacking to consider the notion UA was so desperately concerned with a fillip tucked away on pp 1033-34, but made no move to acquire rights in the (independent) work to which it refers! It was right there in Tolken's office. You want De Niro? Here's This: UA wanted the Lord of the Rings. They didn't care about The Silmarillion.

You say:an author sold film rights to something and then years later had it repackaged in a longer book length form

You make it sound like the first page of Appendix A was the purpose of UA's purchase!

But, seriously, folks: the 'book-length form' was of course not a 'repackaging' of the Appendix A (i) preface, but a 'repackaging' of many thousands of manuscript and typescript pages JRRT created over the course of sixty years.

[William Cloud Hicklin]

Additional damages, attorneys fees and the ability to use the filing as evidence.

So there is a difference.

If not, why would anyone ever pay the $30.00 fee?

All procedural matters. They are unrelated to ownership.

[Nerwen]

Sauron, I refer you to William Cloud Hicklin's comment:

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.


Now, after that, you said this:

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 just want to know whether, in your mind, we have or have not disposed of the copyright question? Can we get a definite answer from you on this one?

Edit: X'd with William Cloud Hicklin.

[Sauron the White]

from WCH
So, a prima facie declaration that The Silmarillion was a separate work with an independent existence- and moreover, one which everyone even dimly aware of Tolkien in the late 60s knew was supposed to be nearing completion.

I remember The Shadow used to proclaim "who knows what evil lurks in the hearts of men? The Shadow knows." I guess he had nothing on you. By the way, when you are not looking into the future expecting your contractual partners to screw you, could you define "to be nearing completion"? By your own timeline there was a good ten years between when everybody was suppose to know these things and when the SIL was published. But it makes no difference. None. Zip. Nada.

from Nerwen

I just want to know whether, in your mind, we have or have not disposed of the copyright question? Can we get a definite answer from you on this one?

Mr. Hicklin is attempting to soften or mitigate his previous firm statement that there is no difference - NONE - between what I called a copyright and what I called a legal registered copyright. When I quoted the link where it said that one can gain additional damages from statuatory law, that one can gain repayment attorneys fees, and one can use the filing as evidence - and I take that to mean they save tons of work producing other proof in court - those are definite differences that go beyond the limited word PROCEDURAL. The link that you provided clearly spells out some additional benefits one can gain from taking the steps and spending the money to get a registered copyright. And I believe we have disposed of the copyright question and it has no impact on my main point either way.

I never ever ever claimed that the Tolkien Estate or CT did not have the right to have the SIL published as a book. Never.

The value of the rights held by the legal film rights holders were severly diminished by actions taken by CT with the publication of the SIL.

from WCH -

In any event, the synopsis in the Appendices does not purport to be 'The Silmarillion.' By its own terms,

So what?
It does list a whole bunch of First Age historical events which it says are taken from The Silmarillion. Where else in 1969 could you pick up a published book by JRRT and find that information? And it all was sold to UA in film rights. LOTR is much more than the story that ends with Sam going back announcing his return safe and sound. Its also the Appendicies.

UA wanted the Lord of the Rings. They didn't care about The Silmarillion.

How do you "know" for certain what UA wanted?
What I know for a fact that does not depend on some mystical powers or abstract reasoning is this: UA bought the films rights to LOTR from JRRT and gained the film rights to everything in that book including the Appendicies. They gained the usage of a whole list of events from the First Age that JRRT says are part of The Silmarillion. They gained the right to use those in a film.

It is foolish and silly to speculate and argue about what somebody wanted and what you may know about it. Lets look at the facts. The facts say what happened.

In 1969 there existed no bloody work titled the SILMARILLION outside of stacks of unsorted and sometimes unreadable papers strewn around various locations where JRRT worked. It may have existed in his mind. Fragments may have existed on scraps of paper. But THE SILMARILLION as an identifiable work that UA or anyone else (beyond some Tolkien groupies) would know about did not exist to be bought, stolen or anything else.

You make it sound like the first page of Appendix A was the purpose of UA's purchase!

It matters not one jot or tittle what UA 's purpose or motive was in their purchase. I could not care less if they were more concerned about page 7, 353, 869 or 1012. It matters not. They bought the whole darned thing lock stock and barrel. They bought film rights to LOTR from cover to cover and that includes the whole contents including the Appendicies.

I have tried to answer all your questions. Would you please be good enough to answer this for me that I have posed before?

Do you know of any other situation in publishing or in film rights where someone made a legal purchase of film rights and then, years later, some of those same contents were repackaged and sold in a longer format thus weakening the usability and exercise of rights of the original sale?

Because I know of not one situation like that. I spent several hours researching this to find out if there was precedent for it and cannot find one case where anyone did that.

[zxcvbn]

My,my. Things sure are getting heated up here! :D

I'll just contribute my two cents: Saul Zaentz only licensed the Hobbit and the LOTR including Appendices, and those are the only rights he owned. He never owned the rights to any of Tolkien's unpublished notes(which, at that time, were unknown to most of the world) and Christopher Tolkien did not 'degrade' Zaentz's license in any way because he never owned the rights to any of the material in the Silmarillion (except whatever little appears in the Appendices: words like 'Silmarillion', 'Tuor', 'Thingol' etc.).

[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.

[Nerwen]

Mr. Hicklin is attempting to soften or mitigate his previous firm statement that there is no difference - NONE - between what I called a copyright and what I called a legal registered copyright. When I quoted the link where it said that one can gain additional damages from statuatory law, that one can gain repayment attorneys fees, and one can use the filing as evidence - and I take that to mean they save tons of work producing other proof in court - those are definite differences that go beyond the limited word PROCEDURAL. The link that you provided clearly spells out some additional benefits one can gain from taking the steps and spending the money to get a registered copyright. And I believe we have disposed of the copyright question and it has no impact on my main point either way.

For the last time, Sauron– the creator of a work owns the copyright by default. This right exists as soon as the work is created. Registering copyright only helps facilitate things.

That is what that link is saying. You have had this explained to you over and over again. Why can't you just admit you were wrong? People can be wrong sometimes– it's no disgrace.

I never ever ever claimed that the Tolkien Estate or CT did not have the right to have the SIL published as a book. Never.

Actually, I believe you are claiming that, if you think the film rights holders can sue Tolkien Estate for damages caused by publishing The Silmarillion. Isn't that the cornerstone of your argument?

Do you know of any other situation in publishing or in film rights where someone made a legal purchase of film rights and then, years later, some of those same contents were repackaged and sold in a longer format thus weakening the usability and exercise of rights of the original sale?

Because I know of not one situation like that. I spent several hours researching this to find out if there was precedent for it and cannot find one case where anyone did that.

I think you just shot yourself in the foot. What you have proved, if anything, is that no film company has ever tried to sue an author for publishing a sequel (or prequel) to his own novel. I don't know if this is so– but if it is– well, why do you think?

[Sauron the White]

Nerwen
It seems to me that the actual truth is somewhere in the middle. WCH claimed that there was absolutely no difference between the home created copyright when the work was created and a legally registered copyright. The link you provided explains several differences that I have repeatedly pointed to. Those include additional damages, repayment of attorney fees and the ability to introduce the filing as evidence thereby saving lots of other work.

Mr. Hicklin was wrong in claiming that there was no difference. Then he attempted to mitigate or soften his claim calling those differences (which previously DID NOT EXIST in his opinion) procedural. I also was wrong about some things. The truth lies somewhere in between.

Originally Posted by Sauron the White
I never ever ever claimed that the Tolkien Estate or CT did not have the right to have the SIL published as a book. Never.

from Nerwen

Actually, I believe you are claiming that, if you think the film rights holders can sue Tolkien Estate for damages caused by publishing The Silmarillion. Isn't that the cornerstone of your argument?

Its a free country so you can believe anything you darn well please. That changes nothing I said. Believe away. Please show me where I said the film rights holders can sue the Tolkien Estate for damages caused by publishing THE SIL. Please show me. I never said it. Some type of action may have come up in the discussion in passing over the last three pages but that was never my point. And if I never said it it cannot be the cornerstone of my argument. This is not about litigation or lawsuits.

What you have proved, if anything, is that no film company has ever tried to sue an author for publishing a sequel (or prequel) to his own novel. I don't know if this is so– but if it is– well, why do you think?

I have no idea of what you are saying here or what your point is because you are completly missing my point. I am not saying and have never said that no author cannot write a prequel to an existing story or a sequel to an existing story. If I did please show me where I said it. I have never talked about suing an author for doing that. If I did please show me where I did.

My point and my question was this: can anyone please show me evidence of another case where an author sold a piece of his work to a film company and then used that exact same work in an expanded form to cause diminshment of the original film holders rights?

I spent a couple of hours researching this yesterday and could find no other case.

[Nerwen]

In 1969 there existed no bloody work titled the SILMARILLION outside of stacks of unsorted and sometimes unreadable papers strewn around various locations where JRRT worked. It may have existed in his mind. Fragments may have existed on scraps of paper. But THE SILMARILLION as an identifiable work that UA or anyone else (beyond some Tolkien groupies) would know about did not exist to be bought, stolen or anything else.

You see, copyright does matter– despite your own statements to the contrary. Tolkien owned the copyright on his work as soon as he wrote it. Publication has nothing to do with it. This is the basic point which you refuse to accept.

I have tried to answer all your questions. Would you please be good enough to answer this for me that I have posed before?

Do you know of any other situation in publishing or in film rights where someone made a legal purchase of film rights and then, years later, some of those same contents were repackaged and sold in a longer format thus weakening the usability and exercise of rights of the original sale?

Because I know of not one situation like that. I spent several hours researching this to find out if there was precedent for it and cannot find one case where anyone did that.

But that's not what happened. The Silmarillion is not an expansion of the LotR Appendices. They are a synopsis of it. J.R.R. Tolkien owned the copyright on the Simarillion material from the moment he wrote it. He did, Sauron. He really, really did. Your personal beliefs do not change this in the slightest.

And while we're on the subject of belief:

Its a free country so you can believe anything you darn well please. That changes nothing I said. Believe away. Please show me where I said the film rights holders can sue the Tolkien Estate for damages caused by publishing THE SIL. Please show me. I never said it. Some type of action may have come up in the discussion in passing over the last three pages but that was never my point. And if I never said it it cannot be the cornerstone of my argument. This is not about litigation or lawsuits.

Here we go again. Will you kindly explain what your argument is?

You say it's not about who owns the rights. You say it's not about whether the rights holders can sue for damages.

Then what is it?

Edit: Another thing: How do you think registering copyright affects an author's ownership of his work?

Don't say this doesn't matter– you've been arguing on this issue for ages.

[davem]

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?

" in little better condition that stacks of unsorted papers and notes" could describe the manuscripts of many authors pre-word-processors. And how many studios have bought the movie rights of forthcoming books? And even if we were to sympathise with that well-known humanitarian organisation United Artists because they didn't get around to asking Tolkien whether he was going to actually publish this 'Silmarillion' thing (probably the board of directors was too busy going out on the streets & handing out soup & sandwiches to the homeless or something), Saul Zaentz could have easily found out (it being, as WCH has pointed out, widely known throughout the '60's he was working on it) if he'd taken the time - Tolkien never made any secret of his desire to publish it. To continue his example - you purchase one acre of land from him but fail to ask what plans, if any, he has for the rest of it. He has actually published out his plans to turn the rest of the land into a 'hog-farm/sewage treatment plant/toxic waste dump' - in fact, on the one acre of land (LotR) you bought there was actually a big sign stating 'This land to over look a new hog-farm/sewage treatment plant/toxic waste dump' (the clear statement/wide knowledge that The Sil was a work in progress). You, in your eagerness to buy the acre of land, simply ignore the sign & also fail to ask what plans the owner has for the rest of the site.

The other point I would make is that Zaentz has never cared whether his licensing of trashy cartoons, action figures & general tat might adversely affect the reputation/perception of the Estate's property (ie Tolkien's writings). Do you think that in return for access to use some of Tolkien's unpublished work Zaentz would let the Estate have a say in what was licensed - or would this all be one way traffic?

[Nerwen]

Can I just remind everyone that in Sauron the White's original post he said this:

Consider that Christopher Tolkien had published and copyrighted THE SILMARALLION four years after his fathers death and some eight years after the film rights to that material were sold.

Is it not possible, that a sharp legal staff with some innovative thinking, could well claim that they own the films rights to that material and anything published later and made known to the public can be used by them as well since it only details material which they already owned and had use of?

Could it not be legally argued that CT causing to be published the SIL after his fathers death, was the unfair diminishing of rights his father had already sold and were legally owned by others?

Yes, this would indeed be pushing the envelope and an attempt to expand upon what many now believe the film rights are constituted of. And yes, it would be an end run around the idea that THE SILMARALLION cannot be touched by New Line, Zaentz, Jackson or anyone else. But could it happen?

So Sauron... you did start off talking about the legal aspect. Now you say that doesn't matter and it's a question of ethics.

Okay, fine. It's a question of ethics. We'll talk ethics now... but will you acknowledge that your original question has been answered?

[Sauron the White]

Nerwen .. when you accuse me of something, please stick to that when reposting my previous thoughts so we can see if you were correct or not. That is only fair.
There is a disturbing trend here - not only here but on other boards also - where instead of directly meeting a persons point head on, people like to rephrase, paraphrase, change the meaning or wordsthe person used in an attempt to twist the original argument to bettermeet their own response.

You accused me of

Actually, I believe you are claiming that, if you think the film rights holders can sue Tolkien Estate for damages caused by publishing The Silmarillion. Isn't that the cornerstone of your argument?

I replied

Please show me where I said the film rights holders can sue the Tolkien Estate for damages caused by publishing THE SIL. Please show me. I never said it. Some type of action may have come up in the discussion in passing over the last three pages but that was never my point.

Obviously you could not locate what I did not say and could back up your accusation. So today you come back with

So Sauron... you did start off talking about the legal aspect

Legal aspect? legal aspect? What in the world is a legal aspect? Sounds like the broadest possible term you could come up with that takes in nearly everything that has anything to do with contracts, rights or the law. It says nothing about me urging anyone to sue anybody else as you claimed wasthe cornerstone of my argument.

And all this about copyright. It has nothing to do with my main point. I am not arguing that JRRT did not own The Silmarillion. I am not arguing that he cannot produce a book about it or the events in it. I am not arguing that anybody but the Tolkien Estate owns The Silmarillion. Can we please get that straight.

The facts are simple.
1- JRRT sold the film rights to both THE HOBBIT and LOTR to UA in 1969.
2- Included in LOTR are the Appendicies, including accounts of events in The FIrst , Second and Third Ages. Among these items are

- 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

3- UA sells these film rights to Saul Zaentz in 1976.
4- JRRT dies never completing his SILMARALLION leaving behind various versions of stories which are later combined into a book length narrative by his son CT.
5 - THE SILMARALLION is published in 1977. Since that time the SIL has sold over a million copies and has remained in print for the last thirty years in languages all around the world.

Does anyone find those facts to be in error? Please say so because if we cannot even agree on the facts we certainly cannot find any common ground on what they mean or their implications or effects.

I will await responses before discussing what I think are the imlications of these facts.

[William Cloud Hicklin]

Sauron:

You're stalling. We've been over this again and again and again: the facts are stipulated; we're arguing the law as it applies to the facts.

Why don't you come out and tell us what claim or rights you think Zaentz/New Line have in The Silmarillion? And is your position any different from the one you started with,

they own the films rights to that material and anything published later and made known to the public can be used by them as well since it only details material which they already owned and had use of?

[Sauron the White]

WCH - so you agree to that facts as I have listed them here and above?
We should all get this straight before moving on to what we each thing these facts mean.

1- JRRT sold the film rights to both THE HOBBIT and LOTR to UA in 1969.
2- Included in LOTR are the Appendicies, including accounts of events in The FIrst , Second and Third Ages. Among these items are

- 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

3- UA sells these film rights to Saul Zaentz in 1976.
4- JRRT dies never completing his SILMARALLION leaving behind various versions of stories which are later combined into a book length narrative by his son CT.
5 - THE SILMARALLION is published in 1977. Since that time the SIL has sold over a million copies and has remained in print for the last thirty years in languages all around the world.





-

[The Saucepan Man]

STW, much as I admire your spirited efforts in sticking up for Jackson and the LotR films and share your discomfort with some of the more strident negative opinions expressed here in respect of them, I am afraid that you are on a very sticky wicket on this one.

Mr. Hicklin was wrong in claiming that there was no difference. Then he attempted to mitigate or soften his claim calling those differences (which previously DID NOT EXIST in his opinion) procedural. I also was wrong about some things. The truth lies somewhere in between.The law makes a distinction between substantive and procedural matters. The former (in this context) concern rights, while the latter relate to the ability to enforce such rights. Substantively, there is no difference between the copyright which comes into existence when a work is created and a legally registered copyright. So, WCH is correct to say that the rights of the Estate and UA/Zaentz are no different now than they were when the film rights were first sold. All that registration does is make it easier to enforce those rights.

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.This is spot on and merits restatement. Tolkien owned the rights to all works created by him. He sold an aspect of those rights, the right to make films of TH and LotR (plus associated merchandising rights) to UA. He, and the Estate as his successor, retained the publishing rights to these two books plus all the unpublished material that was not included in the sale. CT was therefore entirely free to publish the Silmarilion (and other) material. Legally, there is no issue.

You state that this leaves Zaentz (or his licensee) in a position whereby he either fills in the gaps in the Silm material contained in the Appendices and invites ridicule or risks infringing the Estate’s copyright. That is correct. And, as others have said, tough.

You seem to suggest that this is somehow unfair on Zaentz. I happen to agree with others that he has done quite well out of the whole deal already thank you and that neither UA nor he were likely to have been interested in the Silm rights anyway until fairly recently, if at all. But putting that aside, in a situation where two parties freely enter into a contract, fairness doesn’t enter into it, unless there is some suggestion that one party was in an inferior bargaining position (which consumer law largely addresses) or was improperly induced to enter into the contract. It seems to me that, if anyone was in a lesser bargaining position when Tolkien sold the film rights to UA, it was Tolkien himself.

In any event, freedom of contract is the reason that parties (of relatively equal bargaining power) pay loads of lolly to lawyers like WCH and me to make sure that their interests are protected.

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?Again, I’m sorry, but davem is right. It is not an amazing statement at all. If UA were at all interested in the rights to the Silm, they could have insisted that such rights be included in the deal or that Tolkien agree not to publish the Silm material in the future. If Tolkien did not agree, then they could have reduced the amount paid to reflect the (perceived) lower value of what they were buying. If they were not aware of all the Silm material that had already been written by Tolkien and of his future intention to publish it, then (assuming that they were at all interested in it) they (or their lawyers) did not do their due diligence properly.

Similarly, when Zaentz purchased the rights from UA, if he was at all interested in the Silm rights, he should have made sure that he was aware of how the publication of the Silm might affect them and, if appropriate, negotiate a lower purchase price.

[Sauron the White]

I would remind everyone here that when I started this thread my intention was not to build a case for legal action or litigation taken against Christopher Tolkien, The Tolkien Estate or anyone else. It was motivated by a desire for future filmmakers to , as far as is possible withing the confines of changing mediums from one art form to another, "get it right".

Over the last several pages we have become enmeshed in legal arguements about copyright, enforcement, penalites and other "legal aspects" as one poster put it. I have stated several times that I am not a lawyer, did not attend law school and am at a disadvantage in arguing the technical legalities of a situation.

There are going to be two more movies about Middle-earth. Like it or hate it that is now the reality of the situation. It has been announced that one will be of THE HOBBIT while the second will use material from the Appendicies to bridge the gap of years betweent HOBBIT and LOTR. This caused the usual speculation about what can be used and portrayed and what cannot be portrayed in a film.

I stated here that I do not want to be here five or ten years from now arguing about the rightness or wrongness of what was placed in those movies. Did they confine themselves strictly to the Appendicies or did they go beyond and include material they could only have gotten from other Tolkien sources outside of HOBBIT and LOTR? I would like to avoid that if possible.

I said there now exists a situation where the current film rights holders could make a movie containing the following events taken from the Appendicies:

- 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

At the same time, the Estate owns all rights to THE SIL and that would include potential film rights to those exact same events plus more. So we have an area of overlapping rights.

And that is just the tip of the iceberg since the Appendicies go on for many more pages giving accounts of far more Middle-earth history than just those major First Age events. Again, the right to include all that in a film in held by New Line Cinema.

I said more than once that I think everyone would benefit if both parties, the Estate and current film rights holders sat down like two civilized people and said lets see what we can do about this. Is there a way that material can be shown on screen taken from the Appendicies but do it in such a way so that it is as accurate as possible when compared to the larger Tolkien writings that many people know so well?

I believe that if this could be done, the movies would be more accurate, be better and everyone wins. I agree that they will never be as accurate or as faithful as some people want them to be. When you change from one art form to another, things are lost, things are changed, things are added, things are gained - in short its not the same thing.

My entire thrust was to say that given that the currents rights holders are between a rock and a hard place in depicting many Appendicies events accurately, it would be in everyones interest to sit down like two civilized parties and try to reach some steps to improve the situation.

[Nerwen]

Nerwen .. when you accuse me of something, please stick to that when reposting my previous thoughts so we can see if you were correct or not. That is only fair.
There is a disturbing trend here - not only here but on other boards also - where instead of directly meeting a persons point head on, people like to rephrase, paraphrase, change the meaning or wordsthe person used in an attempt to twist the original argument to bettermeet their own response.

Sauron. I have never attempted to twist your words.

All I am doing is trying to find out what your current position actually is. You seem to change it constantly. So I state things in my own words and ask you if that's what you mean. That's all.

And I did quote you directly. In my last post I gave a lengthy quotation from you. Here it is again:

Is it not possible, that a sharp legal staff with some innovative thinking, could well claim that they own the films rights to that material and anything published later and made known to the public can be used by them as well since it only details material which they already owned and had use of?

Could it not be legally argued that CT causing to be published the SIL after his fathers death, was the unfair diminishing of rights his father had already sold and were legally owned by others?

You attack my use of the phrase "legal aspect" when referring to this quote:


Legal aspect? legal aspect? What in the world is a legal aspect? Sounds like the broadest possible term you could come up with that takes in nearly everything that has anything to do with contracts, rights or the law. It says nothing about me urging anyone to sue anybody else as you claimed wasthe cornerstone of my argument.

I did indeed want to be as broad as possible. I was sure that if I used any more specific term you would fall back on your usual tactic of claiming that's not what you meant... without having to state what you do mean.

You are clearly nitpicking in order to evade my main point. Do you deny that you were talking about law in this post? I drew attention to it because you have recently started claiming that the question is a purely ethical one.

I challenge you to find anywhere that I said you were urging lawsuits. For someone who claims other people are twisting his words, you seem rather adept at it yourself.

Please show me where I said the film rights holders can sue the Tolkien Estate for damages caused by publishing THE SIL. Please show me. I never said it. Some type of action may have come up in the discussion in passing over the last three pages but that was never my point.

Obviously you could not locate what I did not say and could back up your accusation.

It wasn't an accusation. I was asking you if that's what you meant. At that stage you were still talking about Christopher Tolkien having harmed Zaentz/New Line by diminishing the value of their film rights to LotR.

Edit: X'd with Sauron the White and The Saucepan Man.

[The Saucepan Man]

My entire thrust was to say that given that the currents rights holders are between a rock and a hard place in depicting many Appendicies events accurately, it would be in everyones interest to sit down like two civilized parties and try to reach some steps to improve the situation.Well, that's something on which we can all have an opinion. Personally, I am decidedly less excited about the prospects of a film of the Silm material than I was about the LotR films and am about the prospective TH film, and I wonder whether, generally, such a film would be likely to generate anything like as much interest (and, thus, revenue). But it is not an issue which we can really come to a conclusion on. Only the parties involved themselves can do that. And, while I can see that there might be some benefit to Zaentz and co in pursuing it, I fail to see any incentive for the Estate to go along with it.

[Nerwen]

I would remind everyone here that when I started this thread my intention was not to build a case for legal action or litigation taken against Christopher Tolkien, The Tolkien Estate or anyone else. It was motivated by a desire for future filmmakers to , as far as is possible withing the confines of changing mediums from one art form to another, "get it right".

Over the last several pages we have become enmeshed in legal arguements about copyright, enforcement, penalites and other "legal aspects" as one poster put it. I have stated several times that I am not a lawyer, did not attend law school and am at a disadvantage in arguing the technical legalities of a situation.

But you started the legal arguments. You started them in your very first post. Here's that quote for the third time:

Is it not possible, that a sharp legal staff with some innovative thinking, could well claim that they own the films rights to that material and anything published later and made known to the public can be used by them as well since it only details material which they already owned and had use of?

Could it not be legally argued that CT causing to be published the SIL after his fathers death, was the unfair diminishing of rights his father had already sold and were legally owned by others?

Subsequently you insisted on the validity of your own interpretation of copyright law over everyone else's– including a lawyer's. Your arguments showed that you knew nothing about the subject, but that didn't stop you nitpicking on every possible point and refusing to back down. It seems to me that you never had any intention of accepting an answer to the question you posed, unless it was one you wanted to hear.

At any time you were free to drop the whole copyright issue– by conceding defeat– and move on to what you say is your main point.

Well, then, how about it?

[William Cloud Hicklin]

What lies at the back of this, I think, is that you, StW, are bummed that Peter Jackson doesn't have film rights to all of Middle-earth; and you have an enormous chip on your shoulder vis-a-vis Christopher Tolkien because he won't play ball.

I'm sorry, Sauron, but JRR Tolkien did not dedicate his entire life to creating first drafts of screenplays for Peter Jackson. If Jackson wants to make a fool of himself trying to stretch a page and a half of Appendix B into a 'bridge' movie, that's his problem, and I see no reason at all why Tolkien's family should deign to bail him out.

[Sauron the White]

Did any of you ever see the sketch on the Ali G Show where Sasha Cohen as Ali G goes into a book publishers office to pitch a book? He opens by remarking how much money the LOTR films have made and then says something like "now imagine this .... LORD OF THE RINGS ... the book. We would sell like billions of copies". And the publisher sits there patiently and without batting an eye points out that the LOTR films were made from books ... books that were very successful before the movies were made.

That sketch is meant to be funny. But if humor like that is to work there has to be some truth and something recognizable in it. The fact is this, - right now and for some time to come, Middle-earth, LOTR, and all in it are wound together in a nice symbiotic package that includes both the books and the films. The number of tickets sold to the movies over that three year period exceeds the number of book sold over the last fifty plus years. There are probably a whole bunch of folks out there like Ali G who think that LOTR is just a series of movies and know nothing about the books.

There are probably others who saw the movies and then went out to buy and hopefully read the books. And for many others they are reminded of LOTR everytime they see toys, posters, statues, T-shirts and all the "junk" that some here hate so much.

You can like it or not. You can hate it or not. But its a reality that LOTR is now both the books and the movies all tied up together in the mind of the public. And now we are going to get at least two more Middle-earth movies over the next few years which will only make that symbiotic arrangement all the more cemented in the mind of the public.

In another post, the Saucepan Man rejected my idea of both parties working together saying

And, while I can see that there might be some benefit to Zaentz and co in pursuing it, I fail to see any incentive for the Estate to go along with it.

How about the incentive that the worldwide public thinks your product is mostly the movies and you don't like that impression? How about the incentive that the worldwide public is going to see more movies that you do not particularly like or approve of but right now are powerless to do anything about? How about the incentive of getting an expert adviser picked by the Estate in on the next two films giving expert advice and suggestions to help make the product more authentic so that when the next wave of millions of ticket buyers see the next two Middle-earth films, they see a product more authentic?

That is what I would like to see. An arrangement where both sides who are different parts of Middle-earth come together and benefit together. The films could gain more leeway in utilizing passages from other books when depicting things from the Appendicies in the effort to be more authentic and correct to what Tolkien wrote in much more detail. The Estate would get an expert on the inside, there to give advice, to make suggestions, and to further their own hopes of keeping it real and authentic.

Is that incentive enough?

[Thenamir]

With the highly informative posting of one of the Downs' most repected legal minds (thank you, SPM), I am calling a time-out. This conversation is beginning to look like a time-lapse photograph of a dog chasing its tail. The levels of friction-generated heat are beginning to be greater than the light being shone upon the subject.

I am, for a short period, closing this thread in hopes that all involved will go back and re-read (and hopefully digest and reconsider) all the relevant information posted here. When the thread re-opens (in a relatively short but intentionally vague number of days), let us see if cooler heads and better information will prevail.

[Thenamir]

Let's see if anyone notices.