Or no Hobbits at all...

[davem]

http://biz.yahoo.com/ap/080211/tolkien_lawsuit.html?.v=2

- The estate of "Lord of the Rings" creator J.R.R. Tolkien is suing the film studio that released the trilogy based on his books, claiming the company failed to pay a cut of gross profits for the blockbuster films.

The writer's estate, a British charity dubbed The Tolkien Trust, and original "Lord of the Rings" publisher HarperCollins filed the lawsuit against New Line Cinema on Monday in Los Angeles Superior Court.

The lawsuit claims New Line was required to pay 7.5 percent of gross receipts from the films to Tolkien's estate and the other plaintiffs. A call to a spokesman for New Line, a unit of Time Warner Inc., was not immediately returned....

The plaintiffs seek more than $150 million in compensatory damages, unspecified punitive damages and a court order giving the Tolkien estate the right to terminate any rights New Line may have to make films based on other works by the author, including "The Hobbit."

Such an order would scuttle plans New Line has in the works to make a two-film prequel based on "The Hobbit."

Well, I thought it was funny....

[Sir Kohran]

Hold on a sec - Christopher Tolkien spends year remaining neutral on the topic of the movies and has nothing to do with them, but now the companies he is related to are demanding money from the movies? Isn't this somewhat contradictory?

Could someone better explain this, please..

[davem]

Well, it looks like New Line have tried to get out of paying the Estate & the Publisher what they're due to - mush like what seems to have happened with Jackson.

Note though - this is simply aimed at stopping New Line making any sequels...

[William Cloud Hicklin]

If the Estate is in fact legally owed millions of dollars, it would be a breach of fiduciary duty for its executors not to try to enforce payment of the debt. That's a fundamental obligation imposed by the law regardless of personal feelings.

It's worth noting that The Tolkien Trust (which holds the US copyrights of LR) is the charitable arm of the Estate.

[Quempel]

I was under the impression Tolkien sold all his rights to LoTR/Hobbit, so why is the estate getting anything at all? And if he did sell all his rights, what claim can they make to NL. Doesn't Saul Zaentz own the rights? And if anything shouldn't the estate being suing him instead of NL?

[davem]

I was under the impression Tolkien sold all his rights to LoTR, so why is the estate getting anything at all?

This report has more detail http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2008/02/11/financial/f115544S35.DTL&tsp=1

Main point is:

The lawsuit claims J.R.R. Tolkien established a trust through which he signed a film deal in 1969 with United Artists. After Tolkien's death, his heirs created the charity in the author's name.

[William Cloud Hicklin]

Tolkien sold all his rights to LoTR/Hobbit, so why is the estate getting anything at all?

Well, yes, JRRT sold those rights; but the purchase price he got for them was some amount of cash up front *plus* a promised share of the income. Apparently New Line rather neglected that bit. Just like they did with Peter Jackson, and Saul Zaentz, and the actors, all of whom have had to sue New Line to get their share.

[Sauron the White]

This should be a cut and dry matter of what the contract language says the filmmakers are obligated to. Up until now, they only information I ever saw said that JRRT sold the rights for a specified cash payment. No mention of royalties or profit sharing. If the contract does include profit sharing or royalties then New Line clearly owes money to the Estate. And in that case they deserve it.

The one thing that really disturbs me is the mention of this in the story


The plaintiffs seek more than $150 million in compensatory damages, unspecified punitive damages and a court order giving the Tolkien estate the right to terminate any rights New Line may have to make films based on other works by the author, including "The Hobbit

AHHHH!!!!! So thats is then. The Estate does not want two more movies taking away all the attention that they themselves want for the books. The attention they tried to grab by agreeing to publish the CHILDREN OF HURIN as a "new book" in an obvious fraud.

If the Estate deserves money, fine.... they are entitled to it and I hope they get it. If this is just some legal ruse to abort rights that JRRT already sold and now the Estate regrets, forget them.

[William Cloud Hicklin]

The attention they tried to grab by agreeing to publish the CHILDREN OF HURIN as a "new book" in an obvious fraud.

Scurrilous and beneath contempt.


*****************

This after all is the same New Line that refused to pay PJ his cut, refused to pay Zaentz his cut, refused to pay actors their cuts......


-

[Sauron the White]

WCH - YOu are an attorney for heavens sake.
Go look up the definition of NEW in any dictionary. I defy you or your mods or your purists or the Estate themselves to show how a tale which has been on my shelf for year after year can be advertised as "the first new novel by JRRTolkien in thirty years".

Have we truly entered the age of Newspeak where words are defined by idealogy or belief instead of their true meaning.

I am abiding by the rules here 100%.
It is your post which is

Scurrilous, beneath contempt, and inappropriate on this forum.

William - you are not in a court of law and I am not on trial here. I merely posted my thoughts on the highly questionable ethical decision and business practices of being party to advertising a book as NEW when it clearly was already in existence on many of our shelves. How is that any violation of the rules here?????????????

[davem]

AHHHH!!!!! So thats is then. The Estate does not want two more movies taking away all the attention that they themselves want for the books. The attention they tried to grab by agreeing to publish the CHILDREN OF HURIN as a "new book" in an obvious fraud.

If the Estate deserves money, fine.... they are entitled to it and I hope they get it. If this is just some legal ruse to abort rights that JRRT already sold and now the Estate regrets, forget them.

Carefully avoiding the side argument....as I pointed out, they are not (CAN NOT) seeking to prevent a movie of TH or a possible sequel/sequels being made. They are attempting to prevent New Line Cinema making any further Tolkien movies - from the sound of it on the grounds that they haven't received the profits they are due from the LotR movies & probably wouldn't receive any profits from further movies - ie that New Line are abusing their rights & so should have those rights taken away from them.

None of this would prevent a Hobbit movie being made by someone else. I was just being a bit provocative with the thread title:p

EDIT Latest on the One Ring site seems to imply that New Line may be slapped down hard by Time Warner & reduced to making cheap 'n' nasty junk while leaving the blockbusters to Warner Brothers.

[Lalwendë]

Actually, according to today's news reports, they ARE seeking to halt The Hobbit from being made by New Line!

From The Grauniad:

In the complaint, the plaintiffs accuse the studio of "unabashed and insatiable greed" and of engaging in the "infamous practice of creative 'Hollywood accounting'."

Perhaps more worrying for Tolkien fans looking forward to seeing the planned Lord of the Rings prequel, The Hobbit, hit the big screen, the suit also calls for "a declaration from the Court that the plaintiffs have a right to terminate any further rights New Line may have to the Tolkien works under the agreements, including The Hobbit, due to the serious and material nature of the breach of the agreements".

http://film.guardian.co.uk/news/story/0,,2255880,00.html

I have highlighted the most damning statement made! :eek:

EDIT:

Story from The Times: http://business.timesonline.co.uk/tol/business/industry_sectors/media/article3354936.ece

Seems several family members are involved, plus 'two of Tolkien's children' - probably including Christopher and Priscilla.

[Mithalwen]

One thing I had been wondering generally was how long a "shelf life" the film rights had. Given that copyright on books and songs expire after a certain period of time it would seem unlikely that film rights could be held in perpetuity. Is there a general rule or would it be contract specific?

[Lalwendë]

It looks like there was a clause in the original sale which entitled the estate to a share of profits.

New Line don't sound like they're run by very clever people, do they? They've also had legal cases brought by Jackson, and by the actors, and they sold the foreign rights to The Golden Compass, which could have earned them a lot of money, especially now it's winning awards!

[Azaelia of Willowbottom]

What on earth is wrong with New Line? Lal must be right--the heads of the company must not be particularly bright. You'd think that after the actors sued, and Peter Jackson sued, they'd go through their records and make sure that everyone else had been paid their due so that they didn't get dragged back into court for the very same problem a third time. What's next? Are the gaffers and cinematographers, sound and CGI teams going to come out of the woodwork with a complaint that their contracts aren't being followed, either? Bad form, New Line.

...They must think they're above the law.

TH could still be made, just not by New Line, assuming this goes through. I'm not expecting it by 2010 anymore, that's for certain. *sigh*

[Quempel]

Ok I must be just not getting it. How can the Tolkien Estate stop the movie? They don't have the rights to the movie at all, but only rights to the profits from the movie...is this correct in my assumption?

And not that I believe NL wouldn't rip off the Estate, since they have a track record of ripping off everyone else. I am just wondering what legal leg they can stand on to claim stoppage of the The Hobbit, because it seems to me they don't have any rights to if the movie gets made, but only have rights to the profit of the movie, if and when it gets made.

My other question is this, once Christopher dies, who will be the 'Estate' that will stop the selling of the movie rights to the Sil? Because it seems that once he dies that the other children might not be such 'sticks in the mud' as it were.

[William Cloud Hicklin]

Quempel:

The doctrine invoked by the Estate (to the extent I can judge by the press reports) is that when a party to a contract breaches it materially, outrageously and in bad faith, the aggrieved party can ask the court to nullify the contract.

Let's look at it this way: suppose Farmer Jones contracts to sell this year's and next year's crop to a wholesaler. After Year 1 the wholesaler doesn't pay a penny- it's hardly unreasonable then for Farmer Jones not to give them Year 2's crop for nothing as well.

Mind you, this applies only to New Line- Saul Zaentz would still be free to license TH to any other studio. MGM/UA might be interested because they already own the distribution rights. And this other studio would be free to hire Peter Jackson if desired.


The Board of the Tolkien Estate* comprises Christopher, his wife Baillie, and JRRT's grandson Michael George Tolkien. All three appear to have the same attitude towards visual (as opposed to audio) adaptations. There's no telling in advance who might take up Christopher's vote on the board, but the most likely candidate is son Adam, whose position is also very book-centric and anti-exploitation.

*That's not strictly accurate- it's actually the board of The Tolkien Company Ltd, whereas the Estate is run by its executors, CRT and Cathleen Blackburn; and the Tolkien Trust has its own Board which includes JRRT's daughter Priscilla.

[alatar]

I don't know if it's the lawyers, accountants, the movie industry, etc (and I'm not tarring anyone who may be or be associated with such), but what fun seemingly can be had with reality in Hollywood. Remember the movie starring Eddie Murphy called Coming to America? Art Buchwald won a lawsuit against the studio as it was his idea that they stole. He was awarded damages on settlement of the appeal (or something). Anyway, the studio claimed that the movie never made a profit (though in the US alone it made $350 million), and so they could never pay up. You can read more here (http://en.wikipedia.org/wiki/Buchwald_v._Paramount).

New Line may just be like everything else in that unreal world.

[Sauron the White]

I have a serious question about this development.

To what end (other than the obvious financial one) is The Tolkien Estate pursuing this? What is in it for them besides the $150 million that they feel they contractually deserve?

As I said in my first post, if the contract says they get the money then they certainly should get every penny they are owed. No problem there - at least from me. New Line has a had record of cheating nearly all concerned and it would not surprise me to find out the Tolkien Estate is in that line also.

I do find two things interesting about the money however. First, this is the first time I can remember hearing about a 7.5% profit sharing arrangement. Second, Jacksons attorneys used a figure of $4 billion US in revenues from the films and other sources. The Tolkien Estate figure of $6 billion is a good 33% higher than that. Why the difference?

But back to my main question....... what is the Tolkien Estate really angling to do here other than collect money? They want to strip New Line of the rights to both LOTR and HOBBIT. Okay. They flex some legal muscle and show they are no pansies. But if those rights go back to Saul Zaentz and he is free to sell them to anyone else, how does the Estate profit from that? What do they gain?

Or do they then claim in court that Zaentz failed to exercise some type of due dilligence or responsibility and he too should be stripped of those rights and they should revert totally to the Estate?

Unless that is the ultimate plan and goal, I suspect that what they gain is time. It would push back the two Middle earth films a good year or two and that may be important to them. I have thought all along that what the Estate resents most about these films is their success has supplanted the books in the minds of the world when it comes to what LORD OF THE RINGS is. The Ali G skit comes to mind where he attempts to sell a British publisher on the idea of "LOTR- the books" due to the films success. Shoving these two films even further on the back burner advances their goal of no more movies at all and only having the books out there.

If I am missing something, please respond.

[William Cloud Hicklin]

Jacksons attorneys used a figure of $4 billion US in revenues from the films and other sources. The Tolkien Estate figure of $6 billion is a good 33% higher than that. Why the difference?

The difference between US and worldwide.

this is the first time I can remember hearing about a 7.5% profit sharing arrangement.

The existence of a percentage deal has been long known. The surprise to me at least was that it was gross rather than net- revenues not profits-- the latter being the usual Hollywood method of fobbing off authors with worthless promises. JRRT must have been too smart for that.

They want to strip New Line of the rights to both LOTR and HOBBIT. Okay. They flex some legal muscle and show they are no pansies. But if those rights go back to Saul Zaentz and he is free to sell them to anyone else, how does the Estate profit from that? What do they gain?

If the Estate succeeds in having the court set aside New Line's license, then the rights should indeed revert to Zaentz. What the Estate gains is is not having the Hobbit rights in the hands of approved chiselers who can be expected to cheat them again.

However, I suspect that that part of the complaint is a tactical maneuver, the easier to leverage judicial or third-party oversight of the Hobbit movies' books.

[Sauron the White]

WCH - the figure used by New LIne of a total of $4 billion is indeed their worldwide figure. That comes to $3 billion in film receipts and another $1 billion in DVD and ancillary sales. If you check boxofficemojo, you can see that those are worldwide figures.

Jacksons attorneys used that figure of $4 billion in the suit they had filed as the figure to figure his percentage of profit. If the estate is using a figure that is a good one-third over that one I would be interested in seeing how that was determined. The figure of 6 billion is double what the films grossed worldwide. Thats a great deal of additional income.

If you check the press releases on the lawsuit you will see that it is not a true percentage of the gross. Even the statement from the Estate mentions deductions for expenses. So expenses such as cost of making the films, cost of marketting the films and cost of DVDs will most likely come off of that figure. It is unclear as to what other things can reduce that figure.

So apparently, JRRT was wise in getting a percentage but not as wise as you may have thought when you though it was gross.

[davem]

If you check the press releases on the lawsuit you will see that it is not a true percentage of the gross. Even the statement from the Estate mentions deductions for expenses. So expenses such as cost of making the films, cost of marketting the films and cost of DVDs will most likely come off of that figure. It is unclear as to what other things can reduce that figure.


Yes, but...the Estate's lawyer states:

The plaintiffs are asking for at least $150m, representing 7.5% of gross revenues, after deduction of certain costs. They claim New Line excluded certain revenues from its calculations, and artificially inflated costs so that it did not have to pay the money owed to it.

Seems NL have been indulging in creative accounting - plus weren't there accusations that NL destroyed some of the accounts? If there's any truth in all that it would be down to NL to prove that they didn't make six billion!

I can see yet another out of court settlement looming. Of course, we'll be able to see how much NL shell out to the Estate if it comes to that - as a charity the Tokien Trust will have to declare all income in its accounts for this year...

[Sauron the White]

The blog by Kristin Thompson titled The Frodo Franchise has a detailed account of all this.

http://www.kristinthompson.net/blog/?p=191#more-191

She points out that there are several versions of all thedifferent claims being made and its not clear at all what terms like GROSS, and EXPENSES mean to the parties involved.

I guess that is the kind of stuff that gives lawyers very broad smiles.

from davem

If there's any truth in all that it would be down to NL to prove that they didn't make six billion!

Would not it make more sense to state this in terms of a positive? It would be up to New Line to prove what their revenues were and what their costs were. The way you state it arouses all those old cliches about proving a negative.

In the Thompson blog she seems to say that the Estate is adding up the receipts of every single thing sold from LOTR films. I guess that would include ancillary licensing like clothing, toys, statues, games, cards and the whole ball of wax. It is not clear if the estate is entitled to a percentage of those sales or just the fees that were paid to get the licenses. Usually its the fees and not all revenues on ancillary items like toys.

Of course, if Tolkiens contract had the foresight to ask for what nobody else ever has gotten, then that really would be a stroke of genius.

As I have said from the start, I hope they get every penny owed to them.

[davem]

Bit more here http://www.vfxworld.com/?sa=adv&code=3631a5a1&atype=news&id=22202

including the interesting snipet


The Tolkien Trust is a U.K.-registered charity that has made grants to charitable causes all over the world totaling over $8 million in the last five years.

Anyway, I don't think either Zaentz, Jackson, the Estate or anyone outside of New Line Cinema would shed any tears if NLC lost this case & the rights to make the movies. Zaentz wants Jackson to do a Hobbit movie, but I strongly suspect that he doesn't much want NLC involved - & for all those who are annoyed or upset that a Hobbit movie might now be delayed I can only point out that there would already have been a Hobbit movie (& sequel probably) by now if NL had behaved decently from the get go.

[Mithalwen]

there is just one accountancy joke:

Client: What is 2+2?

Accountant: What do you want it to be?

I would imagine that the Estate are fairly bullish about this given the legendary scale of US legal fees and the fact that other charities have come unstuck over rights issues (DPOW Trust and the Franklin Mint...?). From what I remember of the Trusts accounts they were admirably frugal on admin so this is quite a big thing not just taking a punt with funds that could go to better things than making lawyers rich.

[Sauron the White]

After digesting all that has happened in the last 48 hours, it looks like one thing is clear: these events will cause THE HOBBIT to at least delayed. The combination of New Line and its leaders fighting within their corporate structure for the very existence and the suit by the Estate seem to indicate that there is no longer a bright green light for the next two ME movies.

Which one will shake out sooner? That would probably depend on how Warners decides to resolve the New Line as a studio situation. Reports weeks ago said that Shaye was out and yet he is still there. Reports from two weeks ago said New Line was going to be completely absorbed by Warners but the latest reports seem to say otherwise.

How much money is Warners willing to part with to settle with the Tolkien estate and get the films back on the fast track? If we use conservative figures, we see that the sum could be considerable.

Lets look at the numbers.

Th films took in $2,956,000 US dollars according to boxofficemojo.com. The lions share of that was outside of North America. In fact, some 64% of revenues came from outside. To make it easy, lets take 64% of 3 billion dollars which equals $1,923,000 dollars. New Line sold the foreign rights in many territories for less than the normal 50/50 split before the films ever came out as a way to finance and pay for them. Lets pretend that the money NL did end up with was closer to 35% of that foreign take. That would give NL $675 million dollars from foreign sales of the film.

US sales equaled just over a billion dollars, so using the normal 50/50 theater split, figure on $500 million to NL.

Add those two figures together and you get a total of $1,175,000 in their pockets. Then there is the ancillary income from things like DVD sales and licensing. Attorneys for Peter Jackson in his lawsuit said that was $1 billion dollars.

So what we have to work with is a pot of money of almost $2,200,000 more or less as money NL put in its coffers.

Now what about expenses? This is where studios always padded the books to lessen the shares of others profit participation shares. But lets use some conservative numbers.

The films had an itial budget of $270 million plus some add on costs for film pick-ups. Lets call it $300 billion for the three. Marketting and advertising costs were said to be $50 million per film for another $150 million. Thats a total of $450 million.

So take the revenue profit of $2,200,000 and subtract that figure of 450 from it and you get $1,750,000.

The Estate claims 7.5% of that which equals $131 million.

But then the lawyers really earn their money. Peter Jackson was cut in for almost $200 million dollars in profit sharing. The Weinsteins got a big chunk as did Saul Zaentz. Question: are those legitimate "expenses" which are taken off the revenue before the Estate gets their share or are they consided as after cost expenses? If NL can take another $300 million off the top of their revenue stream, that gets the revenue down to $1,450,000.00.

That would reduce the Estate share to about $109 million. And knowing how these accounting tricks worked in other cases there are all kinds of costs, both real, semi-real and totally bogus which NL will attempt to say they incurred and are legit.

Even using a worst case scenario, where NL is able to get all payments and profits sharing listed as legit and gets their so called profit down to $1.2 bilion, that would still leave the Estate claiming some $90 million US dollars. That is a great deal of money.

So even with every single possible expense being figured in and deducted from the profit calculation, the Estate is in line for about a $100 million dollar payday.

Peter Jacksons attorneys figured he was owed about that same amount. They looked to settle for about 40 cents on the dollar. Will the Estate do the same and still get the single biggest payday in the history of JRRT and his Estate? Will a check get them to back off on claimsto strip NL of rights? Or is it in the interests of the Estate to tie this up in years of litigation hoping to stop the films altogether?

[davem]

Will a check get them to back off on claimsto strip NL of rights? Or is it in the interests of the Estate to tie this up in years of litigation hoping to stop the films altogether?


Hmm....'Cash or kudos' as Humphrey Carpenter had it...

The Estate could accrue a lot of money from more movies - except they may not trust NLC to pay it. Its a gamble. If the only way they could get profits out of NLC for a Hobbit movie & sequel is to go through this kind of , er, hassle all over again they may feel they don't want to bother & stop NLC producing any more movies & try their luck with whoever leases the rights from Zaentz next.

[Sauron the White]

Yes, I thought of that exact same thing. Maybe one way around that is to structure some sort of contract which spells out in detail the ins and outs of the whole thing with specific dates for payment checks and some mechanism for a fairly speedy resolution of differences of opinion. The Estate has some power now in this matter and they could use it not only to benefit themselves and the charities they give to but also establish some sort of template that could open up the door for other authors in the future when it comes to profit sharing.

In past disputes over profit sharing, everyone is looking back at how much money is involved. The Estate has the advantage of also needing to look forward in this regard to the next two movies that the stuiod has announced. They could use this to the advantage of all authors, future profit sharers and strike a blow for fairness.

[Mister Underhill]

As a practical matter I don't see this suit slowing down TH movies. Suits over profit-participation on successful movies are unfortunately all too common. I would be extremely surprised if the Estate could convince a judge to nullify a contract on a different property and make it stick. Of course, I'm not an entertainment lawyer, so...

In the meantime, now that the strike is over, I'd expect formal announcements of a director and a writer soon. If Del Toro becomes official, it's possible he could take on writing duties as well.

[William Cloud Hicklin]

OK, I've seen the Complaint.

Couple of interesting points:

1) JRRT's original 1969 contract with UA awarded him 7.5% of *gross* revenues (not profits, StW), after such revenues exceeded 2.6 times production costs, and after certain specified cost deductions. The $6B figure alleges $3B boxoffice and $3B video, TV and merchandising etc.

2) the $150M figure is a minimum, as in "At least $150M and probably a whole lot more;" the actual sum isn't known because New Line won't let the plaintiffs see the books. (The contract entitled JRRT to *monthly* financial reports!)

3) The plaintiffs are only seeking a court declaration that they have the *right* to terminate the Hobbit licence, not necessarily actually to terminate it (the Complaint alleges that the original contract gave JRRT the right to void it in the event of nonperformance).

4) There isn't complete detail on the creative accounting techniques, but some of those specified look familiar: especially New Line allegedly contracting services to its own subsidiaries at obscenely inflated rates. Another dodge, if New Line did it as alleged, is dead meat: subtracting out Zaentz', Miramax' and Jackson's cuts and trying to claim that what's left is 'gross.'



Given that NLC has already been sanctioned for concealing and destroying documents in the Peter Jackson suit, I expect Shaye & co are in for some very, very rough litigation. Basic Fact No. 1- these movies have generated billions of dollars, yet according to NLC 7.5% of billions somehow = zero. They don't dare let a California jury get hold of that.

Frankly they would be smart to consider selling the Hobbit rights to somebody else right now, since I don't see any way NLC or Warners could possibly proceed with it while this is pending.

[William Cloud Hicklin]

I would be extremely surprised if the Estate could convince a judge to nullify a contract on a different property

It's not really a separate property in that both were assigned under a single contract, which by its own terms JRRT could cancel in the event of material breach.

[Sauron the White]

This quibbling about I definegross versus expenses and how you define it is a matter of semantics. Gross, usually refers to every dollar taken in from day one. It allows nothing for deductions. The formula you cite allows for the costs to be deducted which is basically the same thing I explained in my post above. What you are calling GROSS is not the normal film definition of gross. But it looks like we are talking about revenues less expenses which is the important figure to determine what their 7.5% is.

In fact, by the formula you cite, basic production, marketting and distribution costs would easilly surpass $1 billion dollars.

Do you know how the contract defines or lists what you call "certain specified cost deductions"? That would seem to be all important here.

Do you really think that NL took in every penny of the $3 billion in box office receipts? Well over half of it was kept by the theaters in distribution costs. Add that to the $450 million in production costs and marketting costs and you have a tidy sum in legitimate expenses.

Consider just these three main items:
actual production cost of filming the three movies $300 million
marketting and advertising costs $150 million
cut of theaters to show the films 50 to 65% of box office revenue estimated at between $1.5 billion and almost $2 billion.
Those three figures alone add up to between $2 and 2.5 billion dollars.

You are saying that the contract allows that expense figure to be multipled by a figure of 2.6 before profits have to be shared?

And remember that the figure Jackson was using for revenue was $4 billion dollars. This Estate figure of $6 billion is a good $2 billion higher, thats 50% in addition to what the Jackson attorneys could document. Thats quite a difference not just in money but in the estimate of revenue.

I still think the amount we are talking about is more in line with 100 million or so. Unless the estate can prove their much higher revenue figures as the bas to begin calculating their percentage.
Even $100 million is a great deal of money. New Line should be ashamed for not having paid it already.

Okay - not a lawyer myself. Is not the purposes of damages to "be made whole"?
In this case, would not "whole" be what they should have gotten if the payments had been made?

As I said, I hope the Estate gets every penny legally due to it.

The idea of getting the rights taken away seems to be something that does not pass the smell test. It seems like a convenient excuse just to stop something they never liked in the first place - (Middle-earth movies which supplant the books in the minds of hundreds of millions of people) - but were powerless to change since JRRT himself sold those rights.

Can you cite a precedent where claims such as these were honored in a court of law and rights were stripped?

What would the Estate have to prove in court to get that type of award? And I am NOT speaking about the money but the stripping of rights from NL.

Isn't NL simply going to claim that they did not breach the contract but the differences are merely accounting differences?

[Mister Underhill]

It's not really a separate property in that both were assigned under a single contract...Ah, this I did not know. That makes things more interesting.
so using the normal 50/50 theater splitThis is a small point but I've mentioned it before and I'll mention it again. The distributor/exhibitor split is usually calculated according to a sliding formula that typically favors the distributor in the early weeks and the exhibitor later on. So it could be as much as 80% of receipts going to the distributor for the first few weeks. Don't know what the exact formula was for LotR, of course, but I can pretty much guarantee you it wasn't a straight fifty-fifty split.

[William Cloud Hicklin]

The idea of getting the rights taken away seems to be something that does not pass the smell test. It seems like a convenient excuse just to stop something they never liked in the first place - (Middle-earth movies which supplant the books in the minds of hundreds of millions of people) - but were powerless to change since JRRT himself sold those rights.

Can you cite a precedent where claims such as these were honored in a court of law and rights were stripped?

Thousands, if I could be bothered. Courts set aside contracts every day when there is material breach in bad faith. Don't make your car payments? Here comes the repo man.

The formula I cite (as I can glean it from the Complaint, which does not have the contract attached) provides for 7.5% of the gross. Nothing gets paid unless and until the gross reaches 260% of production costs, but when that threshhold is crossed the 7.5% is based on the whole kit and caboodle.

It is *not* subject to deductions for distribution, marketing, etc etc etc.

[Sauron the White]

WCH - This is getting very interesting. Of course, it is difficult to understand this without the legal papers in front of all of us. So I am depending on you and your inside knowledge here.

According to what you are saying, let us say that the expenses on the film were $1 billion dollars. Times 2.6 would equal a figure of $2,600,000.00. Once the gross receipts hit that level, then the Tolkien Estate gets their 7.5% of that figure and everything after that figure. Is that correct?

So if the receipts were only 2.5 billion, the Estate gets nothing because that threshold was not reached.

So no expenses are deducted from the total but are only important in figuring if the threshold to pay royalites has been reached.

Is that correct?

One more question: is there an agreement or specified listing of what constitutes both income and expenses for New Line?

Is that not what this is going to come down to? It is in the interest of the TE to get the income figure as high as possible while keeping the expense figure as low as possible. It is in the interest of NL to get the income figure as low as possible while keeping the expense figure as high as possible.

If NL can show that their end of that $4 billion revenue stream was actually only half of that in their pocket, and can demonstrate expenses that when multipled by 2.6 fall short of that threshhold, can't they make the case that there is not breach and no royalties are owed at this time due to JRRT making "a bad deal"?

from THE HOBBIT by JRR Tolkien

In ancient days they had wars with some of the dwarves, whom they accused of stealing their treasure. It is only fair to say that the dwarves gave a different account, and said they only took what was their due, for the elf-king had bargained with them to shape his raw gold and silver, and afterwards had refused to give them pay.

[William Cloud Hicklin]

I have not seen the contract. Given what little I know about the through-the-looking-glass world of showbiz accounting terms, I would expect that 'production costs' is equivalent to what the industry calls 'negative cost'- ie what it costs to shoot and assemble the finished master print of the movie, before distribution, marketing etc. The usual figure reported for the 3 PJ films is about $300M.

Again, I haven't seen the contract; it might or might not include the notorious clause under which the studio gets to use whatever bizarre accounting methods it likes.

BUT

1) In at least one famous movie-percentage case, Buchwald v. Paramount, the court found that clause to be 'outrageous' when coupled with the studio's shameless accounting practices, and threw it out.

2) This contract is governed by New York, not California, law, and NY is a real stickler for 'accepted standards of accountancy.' I wouldn't be surprised if the court ordered NL to produce its tax returns and SEC filings- in which the books have to play by tight Federal accounting rules. After all, New Line was reporting record profits to its shareholders the whole time it was claiming the movies were losing money!

3) Greenberg, Glusker is a major-league LA entertainment-law firm, and I would reckon they know exactly what they're doing. Remember, New Line ignominiously settled the previous LR-share suits it's defended; and, like Peter Jackson and Saul Zaentz and unlike most authors, the Tolkien Estate (and HarperCollins) have the money to hire bigtime lawyers and fund bigtime litigation.

4) Interestingly, the plaintiffs are not asking the court to strip New Line of the Hobbit rights- they just want a ruling that they have the right to do so. This provides some wiggle room, as in perhaps the Estate agreeing to allow some studio not connected with NL to buy the rights.

[Sauron the White]

In the absence of defined language in the contract which clearly specifies what is income and what are expenses, I would expect this is going to come down to a definition of both of those terms by armies of very well paid accountants and attorneys. I would expect NL to list every single dollar they have spent on behalf of LOTR in any capacity that it was done. I would expect them to mitigate their income by using every conceivable accounting device that they can get in under New York law, if that is the applicable standard.

In the end, I would not be surprised is NL takes the tact that yes the film did indeed make a profit and stockholders, Jackson and Zaentz did share in the profits HOWEVER the levels of profit did not meet the threshhold of that magic number times the 2.6% in the contract with JRRT.

Or perhaps we will see a out of court settlement. I expect nothing at all to happen with the demand for a stripping of rights from NL. Not one thing.

from WCH

This provides some wiggle room, as in perhaps the Estate agreeing to allow some studio not connected with NL to buy the rights.

Why would the Estate have any voice at all in which studio gets the HOBBIT or LOTR rights if NL is stripped of them. Those rights will soon revert to Saul Zaentz who owns them and can make that decision on his own. How can the Estate get back what does not belong to them and has not belonged to them for three decades now? Saul Zaentz also claimed to be an injured party at the hands of NL and had to sue them. How can the Estate leapfrog over the rights of Zaentz when he is not the one who injured them?

Or is that what this is all about?

[William Cloud Hicklin]

Accounting terms don't exist in a vaccum*: definitions and acceptable methods are rigorously defined in the 'generally accepted accounting practices' established by the American Institute of Certified Public Accountants.

Moreover, I take 'certain specified costs' in the contract to mean that only certain expenditures can be counted.

I would be utterly *un*surprised if New Line loses the Hobbit rights or is forced to sell them. Courts generally always refuse to enforce contracts in favor of fraudsters and deadbeats.


*No, they don't exist in a cow any more than they do in an airless void :)

[Sauron the White]

from WCH
Accounting terms don't exist in a vaccum*: definitions and acceptable methods are rigorously defined in the 'generally accepted accounting practices' established by the American Institute of Certified Public Accountants.

If that is so cut and dry, what do these rigorously defined standards say and mean as it applies to film revenue and expenses?
Until we know that, all this is just idle speculation based on next to nothing.


Moreover, I take 'certain specified costs' in the contract to mean that only certain expenditures can be counted.

And until we know if those "certain specified costs" are listed, enumerated or defined in the contract, such statements are merely speculation.


I would be utterly *un*surprised if New Line loses the Hobbit rights or is forced to sell them. Courts generally always refuse to enforce contracts in favor of fraudsters and deadbeats.

Fraud must first be proven in a court. We are light years away from that. And even if those rights are eventually stripped from New Line, they revert to Saul Zaentz. The Tolkien Estate has no claim on Saul Zaentz.

Or is that what they are going to try to do in the end? Leapfrog over the rights of Zaentz to somehow, someway claim that they want them back?

[William Cloud Hicklin]

It's tactical leverage. If New Line is looking at the possibility of losing the Hobbit rights and getting nothing for them, they may well be amenable to getting something for them by selling them back to Zaentz or to a third party in whose hands they would not be at risk. Once those rights are no longer connected to NLC or Warners they are out from under the cloud, and production could proceed- even using PJ if desired. MGM/UA, who already have the distribution rights, might jump all over that.

[William Cloud Hicklin]

Fraud must first be proven in a court

Fraudsters *and* deadbeats. If you don't pay your bills, you're a deadbeat.

[Sauron the White]

from WCH

If you don't pay your bills, you're a deadbeat

Very true. And from that I take it that the Estate gave an itemized bill to NL to pay? It could be that because of the deal that JRRT himself signed, NL feels that the royalty threshold has not yet been reached. In that case, they can make a legal arguement for not having a bill to pay.

As I have said, I am all in favor of the Estate getting every dollar owed to them. I am totally and completely against any kind of legal ruse or claim that would restore the rights to both HOBBIT and LOTR back to the Estate over the legitimate claim of Saul Zaentz.

The cynical part of me suspects that something like that may be part of all this. And that same cynical part also suspects that the Estate would not mind preventing any more films being made for year after year while this winds it ways though a series of courts.

[alatar]

Not to takes sides, but I'm not sure why the Estate would not want more films to be made. Surely the glory and fame of Peter Jackson's films has died, or at least has waned, and so for the Estate, another go at the movies can only increase books sales and cash flow (whether or however they get a cut) - as the other movies obviously did.

[Sauron the White]

Alatar ... my statement that the Estate may not want additional films made is based on many posts here and on other sites where people of a Purist stripe keep saying the films should not have been made and do not want the others made either.

[alatar]

Maybe I'm misunderstanding things. This thread, which I've been reading, has had lots of talk about the Estate getting their due. In cash. Why then wouldn't they want more? :confused:

[Boromir88]

Alatar ... my statement that the Estate may not want additional films made is based on many posts here and on other sites where people of a Purist stripe keep saying the films should not have been made and do not want the others made either.~Sauron the White

They may not want movies to be made at all, but they aren't trying to block The Hobbit from being made, they are trying to block New Line from making it. Quite understandable, if New Line didn't honor the contract, you wouldn't want those figure fudgers involved in The Hobbit where they can "forget" to pay your proper due yet again.

[William Cloud Hicklin]

22. Under the 1969 agreements, United Artists obtained the right, among other things, to make films based on the Literary Works and agreed, among other things, to pay [Tolkien and his publishers] a total of 7.5% of the "Gross Receipts" from any films based upon the Literary Works after a contractually-defined "Artificial Payment Level" is reached (hereinafter referred to as the "Gross Receipts Participation" or "Participation"). The 1969 Agreements expressly define "Gross Receipts" to include "all moneys derived by the distributor of the photoplay" less certain defined "off-the-top" expenses. The 1969 Agreements define the "Artificial Payment Level" as that point at which the "Gross Receipts" exceed 2.6 times the defined "final cost of production of the photoplay," plus certain other defined costs.

The repeated use of defined implies that each of these terms is defined within the four corners of the contract.

Allegations of New Line financial shenanigans tomorrow.

[Sauron the White]

Well it looks like we are closer to having more information.

The 1969 Agreements expressly define "Gross Receipts" to include "all moneys derived by the distributor of the photoplay" less certain defined "off-the-top" expenses.

So based on this clause, is money taken in by a theater showing LOTR but not sent to NL part of the gross receipts?

And hopefully we will see those definitions of expenses.

Sadly - or happily, I will be gone from the electronic world for one week so will catch up on my return.

[William Cloud Hicklin]

So based on this clause, is money taken in by a theater showing LOTR but not sent to NL part of the gross receipts?

No.


Unfortunately the original contracts were not appended to the Complaint (grr- here they'd have to be); so unless and until they're filed with the Court we're still in the dark as to the actual contract language.

[zxcvbn]

Earlier, someone posted something about the Tolkien Estate's 'official position' issued by Christopher through lawyers in 2001 or so('...thinking evil of those involved are wholly without foundation.'). I'd like to point out that when you're the head of a private company or foundation, you have to maintain a neutral, non-inflammatory 'official position' towards the public that may or may not be your actual opinion.

This is mostly guesswork on my part(basing it mostly on a few things like the 'source close to Tolkien family' revealing that he is 'catatonic' over the films success and thinks that all popular entertainment is unutterably low') but I feel that the older members of the Tolkien Estate(who are the ones participating in the lawsuit) harbour a feeling of resentment and anger towards the movies and would rather not have any more made(hence the audacious 'seeking a court order banning the Hobbit'). I feel relatively sure that if they win the case with New Line they'll turn their attention to Saul Zaentz and try to regain the rights from him.

[Boromir88]

but I feel that the older members of the Tolkien Estate(who are the ones participating in the lawsuit) harbour a feeling of resentment and anger towards the movies and would rather not have any more made(hence the audacious 'seeking a court order banning the Hobbit'.)~zxcvbn
Hearing from some friends, the Tolkien Estate has always been pleasant and helpful but the same can't be said for New Line. This is coming from an administrator of a forum who had to deal with both the Estate and New Line to avoid any sort of legal issues). Also, as I believe davem mentions the Tolkien Estate has given millions of dollars to several charities, whilst New Line has had a tendency to cheat people out of their due money.

Think of it this way...it's going to be a slightly different scenario, but it's virtually what the argument is here.

If a company wants to put your face on their merchandise and they say you will get 5% of the revenue they make from merchandise, but you don't see a penny of that money (or you don't get what they promised you) if they come to you again asking "hey can we put your face on our merchandise, you'll get 5%...etc) are you going to say yes a second time, knowing they cheated you before? Then why would the Estate let New Line continue to make these movies if New Line had not honoured their contract?

[William Cloud Hicklin]

source close to Tolkien family' revealing that he is 'catatonic' over the films success and thinks that all popular entertainment is unutterably low

That press report was a fabrication. Untrue. Either the 'pal' in question was lying through his teeth and doesn't actually know CRT, or the reporter simply made him up (as the British press have invented so many other 'facts' about CRT).

Consider: on a parallel thread we've been discussing the extent to which CT helped out with the BBC radio production, even recording a tape of Elvish pronunciation.

In point of fact CRT likes movies. Just not these particular movies.

[davem]

Consider: on a parallel thread we've been discussing the extent to which CT helped out with the BBC radio production, even recording a tape of Elvish pronunciation.



CT's participation in the radio production has to be kept in mind here - that adaptation was not a straight 'lift' from the books - new scenes were specially written (one in episode 1, where Sam brings post to Bilbo & Frodo in Bag End, another in episode 2 where Gandalf visits Edoras & asks for help after escaping from Orthanc). Other episodes & characters were omitted (Bombadil/Barrow Downs, Gildor, Imrahil, Elladan & Ellrohir). But the point is that before the production began the scripts were sent to Christopher for approval - which he gave. Sibley stated that Christopher was very sympathetic to the difficulties they faced in adapting the story into another medium.

In fact, a few years later one of the adaptors of the series, Brian Sibley, dramatised some of Tolkien's short stories (Niggle, Smith, Giles, &, interestingly, the Old Forest/Bombadil/Barrow Downs episode missed out of the series). Point being, Christopher is not stupid, realises that there is a difference between books & dramatisations - whether that's to radio or film - & appreciates that some changes are necessary. But not every change is necessary.

Of course, as far as I know, the movie makers didn't even bother to consult Christopher - which is hardly a sign of respect. And something else to bear in mind here is that the producers of the stage show requested, & received, access to all Tolkien's linguistic writings.

I can't help feeling that if the movie makers had consulted Christopher he would have been prepared to help out, & that the movies would have been all the better for it - and anyone who thinks that he would simply have demanded every single thing from the book should be included, & would have vetoed every change simply misunderstands him.

[William Cloud Hicklin]

34. Notwithstanding New Line's obfuscation, even the partial audit revealed that New Line has failed and refused, and continues to fail and refuse. to properly account, calculate and pay the Gross Receipts Participation due and owing to plaintiffs under the 1969 Agreements in numerous ways, including but not limited to the following:

a. Substantially understating Gross Receipts earned on the Films by, among other things, underreporting hundreds of millions of dollars in domestic and international home video/DVD receipts, improperly and intentionally excluding Gross Receipts received by New Line and its affiliates in connection with the Films. failing and refusing to calculate Gross Receipts "at the source" where New Line or its affiliates have self-distributed the Films or distributed it through a "rent-a-system," joint venture or other similar arrangement;

b. Substantially overstating purported costs and expenses associated with the Films by, among other things, improperly including hundreds of millions of dollars in participation payments and bonuses for certain talent. production companies and prior rights holders, including without limitation New Line's predecessors-in-interest Zaentz and Miramax, improperly including hundreds of millions of dollars in purported worldwide advertising, publicity and promotional costs; improperly claiming hundreds of millions of dollars of purported overhead, administrative, supervisory or similar charges; and accruing hundreds of millions of dollars of participations not yet due or payable;
...
d. Improperly charging plaintiffs with millions of dollars as a purported "overbudget penalty," phantom interest charges and/or other similar charges in calculating the Artificial Payment Level;
....
g. Failing and refusing to deduct from the costs of production amounts received by New Line and/or its affiliates in the form of production tax subsidies, rebates, and the like.

Seems the industry hasn't mended its ways since the Buchwald case.

[zxcvbn]

Of course, as far as I know, the movie makers didn't even bother to consult Christopher - which is hardly a sign of respect. And something else to bear in mind here is that the producers of the stage show requested, & received, access to all Tolkien's linguistic writings.

I can't help feeling that if the movie makers had consulted Christopher he would have been prepared to help out, & that the movies would have been all the better for it - and anyone who thinks that he would simply have demanded every single thing from the book should be included, & would have vetoed every change simply misunderstands him.

My dear davem, I'm not sure if you'd been following the development of the LOTR films from the beginning(I guess not) but the filmmakers DID approach the Tolkien Estate for assistance(including approval of scripts). The Estate declined since they feared that their participation would be seen as an endorsement of the films, making them 'official'. I believe the old PJ interview where he says this is still up on AICN somewhere.

[davem]

My dear davem, I'm not sure if you'd been following the development of the LOTR films from the beginning(I guess not) but the filmmakers DID approach the Tolkien Estate for assistance(including approval of scripts). The Estate declined since they feared that their participation would be seen as an endorsement of the films, making them 'official'. I believe the old PJ interview where he says this is still up on AICN somewhere.

That's interesting - I've got a tape of a South Bank Show (UK arts programme) where Jackson stated that they'd avoided getting involved with the Estate as they (ie the film makers) didn't want the movies seen as 'officially authorised' versions, because this was just to be their own take on the story.

So, I've now seen both versions, so I'm not sure what the actual truth is. I can see that the Estate would maybe not want to get involved if their participation was to be trumpeted by New Line as official endorsement, but as I stated CT offered a great deal of help with the radio series, & also gave permission for the producers of the Musical to use Tolkien's linguistic writings. Of course, in neither case did the Estate officially recognise, or endorse, the productions. However, things can be done 'behind the scenes'. 'Approval of scripts' is a delicate matter - would they have allowed CT a veto over anything he found unnacceptable, or was it a case of them showing him the scripts & simply saying 'This is what we're going to do, let us know if you like it'? Did the movie makers offer such a veto - if not, I can see that they'd decline to participate. All I can say, without knowing more about exactly what kind of approach they made, is that in two adaptations (one of which is very much in a visual form) they offered some degree of assistance, & in the other they had no participation. They seem to have a good relationship with both the producers of the radio & stage versions & a pretty poor one with the makers of the films...

[Child of the 7th Age]

This article just appeared in the New York Times: http://www.nytimes.com/2008/02/16/movies/16ring.html?th&emc=th

The article mentions the other suits against New Line as well--the second lawsuit filed by Zaentz last December which still must be tried and the one by 16 New Zeeland actors that will come to trial in December 2008.

One attorney feels that part of the problem in all this litigation is the fact that New Line computes its profits differently than other studios:

What they’re accounting for is different than the majors, because the majors are worldwide distributors,” said David Colden, an entertainment lawyer with the Beverly Hills firm Colden, McKuin & Frankel, which is not involved in any of the litigation. New Line’s international division works through foreign distributors that are not part of the company, while major studios are equipped to distribute directly abroad. The way New Line calculated payments based on its revenue from its foreign distributors of “Rings” was a major issue in the first Zaentz suit, filed in 2004.

Also, any litigation will be tremendously complicated because there are so many contractual agreements to consider: (1) the literary-rights agreement made in 1969 with United Artists (2) the agreement made in 1976 which sold the rights to Zaentz (3) the agreement of 1997 that licensed them to Miramax, AND, (4) the final agreement in 1998 that licensed them to New Line

[davem]

Also, any litigation will be tremendously complicated because there are so many contractual agreements to consider: (1) the literary-rights agreement made in 1969 with United Artists (2) the agreement made in 1976 which sold the rights to Zaentz (3) the agreement of 1997 that licensed them to Miramax, AND, (4) the final agreement in 1998 that licensed them to New Line

Well, New Line made an initial payment to the Estate of $62,500 so they must have been working to one of those agreements - unless they just picked that figure out of thin air. It would seem from the case brought by the Estate/Harper Collins that the agreement it is based on is the original. I don't think its legal to change the rights of one party to an agreement if the other party sells its rights on. Tolkien, & by extension the Estate, has the rights he signed up for, & is due the money. The idea that all that money could be made from the movies & yet, because contracts are sold on/leased out, he doesn't get what the contract said he should get is at best ridiculous & at worst dangerous - wouldn't it mean that any writer who signs a similar film deal could end up in the same position - its a perfect way for a studio to get the rights to any work virtually for free.

Sorry, but if New Line can get away with paying nothing to the Estate because of the way their movies are distributed then its no different to people illegally downloading movies or music in order to avoid paying for it. The idea that NLC could make so much money out of Tolkien's lifetime work & avoid paying anything for it because of this kind of 'creative accounting/distribution' is sickening, & I'm sorry, but if they get away with it then no-one who calls themselves a Tolkien fan should have anything to do with their movies or merchandising, & anyone who goes to see the Hobbit movie or its sequel should be ashamed of themselves. Ripping off Jackson or Zaentz is one thing, ripping off JRR Tolkien, & the CHARITY that operates in his name is another.

Of course, if anyone felt inclined to download them illegally.......

[William Cloud Hicklin]

The Complaint alleges that New Line failed to report 80% of the DVD income, and I have a feeling, combined with what Child said, that New Line was running a time-honored scam- er- methodology of Hollywood Accounting: New Line Cinema sold the DVDs to its wholly-owned subsidiary New Line Video at 20 cents on the dollar, and then claimed that 'they' (NLC) only realized that much revenue, pretending that NLV's revenues wound up on Pluto.

Incidentally, the Complaint is now online at http://news.findlaw.com/nytimes/docs/ent/tlknnewline21108cmp.html

[zxcvbn]

That's interesting - I've got a tape of a South Bank Show (UK arts programme) where Jackson stated that they'd avoided getting involved with the Estate as they (ie the film makers) didn't want the movies seen as 'officially authorised' versions, because this was just to be their own take on the story.

davem, I couldn't reply for a few days because my computer was down, but now here is the link to the actual interview.
http://list.pvv.org/pipermail/hexagon/1998-October/001863.html

We are dealing with the "estate", rather than
Christopher personally. They have made their
position very clear: While they are in no way
opposed to a film(s) being made, they do not
want to be involved.

The reason is basically simple: if they had any
involvement, then the films would become
"official" - in other words, they would be seen
as being endorsed by the estate. This is a
situation that the estate does not want, as
they consider themselves to be protectors of
Tolkien's written word, not film makers. I
don't think the estate will be reading scripts
or commenting on the movies. We keep them
informed on progress, which they appreciate,
but they want their involvement to be very arms
length.

This interview dates back to 1998, before the films proved to be such a success and when all parties involved were a lot more humble. So I'm inclined to think PJ was telling the truth. What year is that South Bank show tape from?


So, I've now seen both versions, so I'm not sure what the actual truth is.
Maybe both? The two don't exactly contradict each other.


I can see that the Estate would maybe not want to get involved if their participation was to be trumpeted by New Line as official endorsement, but as I stated CT offered a great deal of help with the radio series, & also gave permission for the producers of the Musical to use Tolkien's linguistic writings. Of course, in neither case did the Estate officially recognise, or endorse, the productions. However, things can be done 'behind the scenes'. 'Approval of scripts' is a delicate matter - would they have allowed CT a veto over anything he found unnacceptable, or was it a case of them showing him the scripts & simply saying 'This is what we're going to do, let us know if you like it'? Did the movie makers offer such a veto - if not, I can see that they'd decline to participate. All I can say, without knowing more about exactly what kind of approach they made, is that in two adaptations (one of which is very much in a visual form) they offered some degree of assistance, & in the other they had no participation. They seem to have a good relationship with both the producers of the radio & stage versions & a pretty poor one with the makers of the films...
Well, I believe the Tolkien Estate had the rights to the stage and radio versions. On the other hand they didn't have the film rights. A few years ago while googling
I came upon an web page on Simon Tolkien(Christopher's disinherited son) where he said that the reason Christopher felt that the Estate should have no involvement in the films is because they didn't own the rights and had no creative control(JRRT chose cash over kudos). Simon countered by saying that the films were going to be made anyway, better to have the Estate involved so thay maybe they can 'steer' them in the right direction. That, among other things, led to the rift between father and son.

[William Cloud Hicklin]

....That, among other things, led to the rift between father and son.

Oh, no. The rift went back years and years, although the press coverage at the time took that angle, and Simon's original interview was craftily phrased to allow unwitting journalists to assume what was not actually said. Even PJ confirms that at the time he first met Simon in 1998 he and his father hadn't been on speaking terms for a long time. This has everything to do with the unhappy relationship between a father and the child of his first marriage, and little or nothing to do with movies.

That to my mind doesn't excuse Simon airing the family's dirty laundry in an effort to peddle his own book. (Incidentally, Simon isn't 'disinherited': he still gets his cut.)


In any event, 'steering' was never a realistic option- PJ and/or New Line were *only* interested in being able to trumpet the Estate's 'seal of approval' for marketing purposes.

[zxcvbn]

In any event, 'steering' was never a realistic option- PJ and/or New Line were *only* interested in being able to trumpet the Estate's 'seal of approval' for marketing purposes.

Yeesh. Why do the purists ALWAYS have to assume that the filmmakers have the worst possible attitude towards the source material and are only in it for the money?! If that's the case, then did PJ and New Line approach Alan Lee, John Howe and David Salo for the same reason: to get their endorsement of the films, being well respected in the Tolkien community? NOPE!! Maybe New Line had that kind of attitude, but there's no doubt PJ and the folks at Wingnut Films and WETA only wanted the Estate's assistance to help create a more accurate, painstaking vision of Middle-earth. Notes on Tolkien linguistics, advice on costumes, architecture etc.

[Galin]

Well, on the languages, Jackson chose much fabricated Neo-elvish over much of Tolkien's actual Elvish in the books.


But this provides yet another example of how little appreciation Jackson had for the tone and "feel" of Tolkien's work. Yes, Jackson went to considerable length to include Elvish in the movie: but he did so mostly by _discarding_ Tolkien's _own_ Elvish exemplars -- which, please note, are almost entirely in the form of songs, poems, spells, and exclamations made in crisis or _de profundis_ that are used sparingly so as to punctuate the story and to not cheapen the effect of the Elvish -- and instead substituting for them long passages of made-up "Elvish" (however skillfully) constituting (mostly banal) _dialogue_ of the sort entirely _missing_ from Tolkien's own application of Elvish in his story (or anywhere else). As such, it is really part-and-parcel with Jackson's treatment of all of the source material: it touches on it, it _appears_ (at first glance, and on the surface) to be almost reverential towards that material, and yet on further consideration in fact mostly and quite badly fails to capture, present, or even to understand the most important themes, aspects, and tone of the work, substituting instead Jackson's own really quite shallow, banal, and clichéd sensibilities.' Carl Hostetter

Disagree with this if you like, but to my mind Jackson didn't have to go to the Estate or anyone to represent Tolkien's Elvish, just the books basically (maybe to someone on pronunciation, though the books are quite handy there too).

In any case, what proof is there (I'm not saying there isn't any) of Jackson wanting to go to Christopher Tolkien, or anyone who is actually part of the Estate, for advice on languages, costumes, architecture, for a more accurate vision of Middle-earth? And how far was this going to go, even if true? And did it include advice on story too? proper emphasis on battles or monsters? important themes? advice on characters?

The section quoted in the linked interview is quite brief: who exactly was 'dealing' with the Estate and about what?

[William Cloud Hicklin]

Yes, Galin: it was much more important to sell "the fans" on the appearance of authenticity than to deliver the genuine article.

[Quempel]

http://www.kristinthompson.net/blog/?p=193#more-193

Both this site and WCH were mentioned in The Frodo Franchise....;)

[zxcvbn]

Well, on the languages, Jackson chose much fabricated Neo-elvish over much of Tolkien's actual Elvish in the books.
Blame David Salo for that. Only a tiny minority of Tokien fans study Middle-earth linguistsics, and I doubt there is anyone on this forum who has enough knowledge
to distinguish between 'authentic' Sindarin and Salo's neo-Sindarin. I'm pretty sure Jackson also knows zip about Elvish, so he approached one of the most well-known Tolkien linguists out there, David Salo. Who, by the way, is respected and considered a credible source on Tolkien linguistics by MOST of the Tolkien fan community. It's only in hardcore linguistic circles, consisting of those who've studied Tolkien languages for years, that he's disliked for his inaccuracies.


Disagree with this if you like, but to my mind Jackson didn't have to go to the Estate or anyone to represent Tolkien's Elvish, just the books basically (maybe to someone on pronunciation, though the books are quite handy there too).

The LOTR books only contain about two to three dozen Elvish words, all in all. To properly study Elvish you need someone who's spent years reading Tolkien's unpublished texts.


In any case, what proof is there (I'm not saying there isn't any) of Jackson wanting to go to Christopher Tolkien, or anyone who is actually part of the Estate, for advice on languages, costumes, architecture, for a more accurate vision of Middle-earth? And how far was this going to go, even if true? And did it include advice on story too? proper emphasis on battles or monsters? important themes? advice on characters?
It would be logical. What else would they want? What proof is there that the filmmakers only wanted the Estate's official endorsement?

It seems to me that some people are going out of their way to 'prove' how Jackson intentionally 'bastardized' the books for profit.

[Galin]

'Blame David Salo for that. Only a tiny minority of Tokien fans study Middle-earth linguistsics, and I doubt there is anyone on this forum who has enough knowledge to distinguish between 'authentic' Sindarin and Salo's neo-Sindarin. I'm pretty sure Jackson also knows zip about Elvish, so he approached one of the most well-known Tolkien linguists out there, David Salo. Who, by the way, is respected and considered a credible source on Tolkien linguistics by MOST of the Tolkien fan community. It's only in hardcore linguistic circles, consisting of those who've studied Tolkien languages for years, that he's disliked for his inaccuracies.'

Whether the Neo-elvish is accurate enough is beside the point however. Nobody was needed to invent any; rather someone associated with the films decided more was 'needed' I guess. A claim that Jackson desired accuracy concerning the languages, which he probably did with respect to invented stuff, is one thing -- but then, since Jackson largely chooses fabricated Elvish over Tolkien's actual examples -- well this seems to be rather an odd choice with respect to accuracy to my mind.


The LOTR books only contain about two to three dozen Elvish words, all in all. To properly study Elvish you need someone who's spent years reading Tolkien's unpublished texts.

The books contain more than just a scattering of words of course -- basically incorporate the Elvish that appears in the tale, and have a pronunciation coach maybe. See Carl Hostetter's previous quote (in my post) for why.

(...) It would be logical. What else would they want? What proof is there that the filmmakers only wanted the Estate's official endorsement?

Back up the train here -- you wrote: 'Maybe New Line had that kind of attitude, but there's no doubt PJ and the folks at Wingnut Films and WETA only wanted the Estate's assistance to help create a more accurate, painstaking vision of Middle-earth. Notes on Tolkien linguistics, advice on costumes, architecture etc.'

I don't need positive proof that Jackson only wanted an official endorsement. I asked for proof because you appeared to claim there was no doubt concerning your statement. So far it appears (now) to be your opinion, but I thought the wording implied there was more in the way of some evidence I was unaware of.

[William Cloud Hicklin]

It's not unlike Gen. Omar Bradley's status as "advisor" on the biopic Patton. Coppola got a very big-name endorsement; Bradley got a pot o' cash and a glowing, almost saintly portrayal onscreen.

What was never in play was anything resembling historical accuracy.

[Sauron the White]

Well, having just returned from a week of fun in the sunny climes of the Florida Keys, I must say that not one thing has been cleared up in my absence. I do find it interesting that the complaint filed is now available online and has been extensively quoted here and elsewhere, but the key elements have not been disclosed. And what are those?

The most important things as I see them is the definition of income, expenses and what is allowable and what is not. If NL is going to claim that their expenses times the 2.6 multiplier factor yield a number that denies the Estate any revenues at this time, then the important thing is to determine how that series of numbers is put together.

A week ago I wrote that we need to know how the contract defines the permissable expenses that the filmmaker is allowed to use before determining if the 2.6 multiplier goes into effect. AS OF TODAY, WE DO NOT KNOW THAT.

A week ago I wrote that we need to know how the contract defines the monies that amount to gross receipts or income. AS OF TODAY, WE DO NOT KNOW THAT.

Until we know those things, we are just running all our collective mouths as we attempt to discuss this suit without proper evidence. Of course, that has never stopped anyone here before.

I hesitate to get into a discussion about the motives of the filmmakers and if they should have, or if they did, consult Christopher Tolkien. Some here have floated the idea that if they - Jackson and company- would have given CT a veto over the scripts they maybe he would have helped. That is simply something that no filmmaker would want to do unless they had absolutely no other way of obtaining the rights. You are giving a veto to somebody who may not know beans about the filmmaking process, script writing, directing or anything else asociated with films.

Ernest Hemmingway said the best thing a author and producer could do was to meet on a deserted beach at midnight and toss the book and a briefcase filled with money to each other and never see or talk to each other again. Hemingway knew what he was talking about. And it looks like JRR Tolkien took Hemingways advice because his agreement with UA gave him not even the merest suggestion of a whisper of influence. And he was happy with enough with that to sign the contract.

If the Estate wants fans to be informed about this lawsuit and wants fan support for their position, they would do well to release the important language defining the items I have mentioned here. Without that, we are only getting very spotty information which in the end is like trying to read so many tea leaves.

[Estelyn Telcontar]

As I see it, our purpose in discussions here at the Downs is to talk about content, not about finances. So unless there is something really important that needs to be said about this issue, let's chill it. There's no sense in getting hot and bothered over an issue that concerns none of us directly and that cannot be influenced by any of us.

[William Cloud Hicklin]

If the Estate wants fans to be informed about this lawsuit and wants fan support for their position, they would do well to release the important language defining the items I have mentioned here.

As if the Estate cared about either, or 'fan support' mattered a hill of beans in court.

The Estate's *lawyers* have not yet filed the original contracts. Eventually they will. That's the way litigation works.

[Sauron the White]

from Estelyn

There's no sense in getting hot and bothered over an issue that concerns none of us directly and that cannot be influenced by any of us.

I agree with that statement that nobody should get hot and bothered about this because none of us have a dime to make either way. That is true. And you certainly have taught me that no discussion should be heated. Nice and proper with all courtesy and respect extended to all.

However, I do think that this entire situation could have impact upon all of us who have an interest in future films about Middle-earth particularly the announced HOBBIT film and a bridge film. Since the Estate has announced that part of their suit is to explore the idea that NL can be stripped of rights to make these films, and many of us want these films, there is a very direct effect upon us. That is what makes this an interesting topic for discussion here and a very much on topic subject for discussion.

from WCH

As if the Estate cared about either, or 'fan support' mattered a hill of beans in court.

There are several kinds of courts. There are courts of law and there is the court of public opinion.

The Estate's *lawyers* have not yet filed the original contracts. Eventually they will. That's the way litigation works.

If and when that happens, I would be greatly interested in seeing the actual language to see if it is indeed specific in offereing crystal clear definitions of the various terms in the contract identifying what these acceptable expenses are and how they are calcualted and what constitutes income and how that is calculated. Until we have that nobody here can make any judgment as to if or how much the Estate has been cheated by NL or how much money is due to them.

I totally agree that the Estate should get every dollar owed to them under the contract. NL has a terrible record of paying off profit sharing partners so it would not surprise me at all if the Estate is just the latest in that line. However, the deal the Estate has if far different than simple profit sharing becauses of this expenses times 2.6 multiplier. That makes their profit sharing far different than Saul Zaentz, Peter Jackson or anyone else.

JRR Tolkien may have made the best deal in the history of selling film rights. Or he may have made a terrible deal. We will not know that until these facts come out.

I suspect that even when they do, they will be less than crystal clear and offer much wiggle room for accountants and attorneys to earn their princely salaries in court for the next couple of years.

[davem]

Re 'Fan support": Ace Books anyone?

[Boromir88]

There's no sense in getting hot and bothered over an issue that concerns none of us directly and that cannot be influenced by any of us.~Estelyn

I agree with that statement that nobody should get hot and bothered about this because none of us have a dime to make either way.~Sauron the White

I'm going to have to respectfully disagree with both of you on this. This suit does effect us. Maybe we don't have money to gain, and we may not be as personally effected by it as the Tolkien Estate, but when did the idea of as "common people" (or "fans") we have no choice but to sit idle and observe at a distance?

If New Line did cheat the Estate out of the money owed to them (which seeing the complaint by the Estate it sounds identical to what NL has done to the actors, Peter Jackson, and Saul Zaentz - this "creative hollywood accounting" crap). What New Line has attempted to do is cheat, and profit, off an author's hard earned work, that he spent years to write for our enjoyment:
Of course the L.R. does not belong to me. It has been brought forth and must now go its appointed way in the world, though naturally I take a deep interest in its fortunes , as a person would of a child.~Letter # 328
'I hope that you have enjoyed The Lord of the Rings? Enjoyed is the key-word. For it was written to amuse (in the highest sense): to be readable.'~Letter 181
An author who had to work late hours as a professor to scrape in more money, an author who's books I have enjoyed reading several times for many many years.

New Line is facing a public relations disaster, and I may not get a dime out of it, but I can try to make sure New Line doesn't make another dime off someone else's years of work and get away without paying for it.

This doesn't effect the fans? It certainly does. As fans we must sit and merely watch like little children as the "adults" duke it out, powerless to effect anything? No. I can make sure New Line doesn't get another cent from me, and I can try to persuade other effected fans to do the same; hoping New Line pays so dearly for a problem they brought upon themselves that they are never able to recover. Now, that is power.

[zxcvbn]

Whether the Neo-elvish is accurate enough is beside the point however. Nobody was needed to invent any; rather someone associated with the films decided more was 'needed' I guess.


The books contain more than just a scattering of words of course -- basically incorporate the Elvish that appears in the tale, and have a pronunciation coach maybe. See Carl Hostetter's previous quote (in my post) for why.

The films had several scenes where characters exchange Elvish dialogue which does not match the books word-by-word, and many of the songs in the soundtrack had Elvish lyrics. This demanded a lot more words and grammar than was printed in the LOTR books.


A claim that Jackson desired accuracy concerning the languages, which he probably did with respect to invented stuff, is one thing -- but then, since Jackson largely chooses fabricated Elvish over Tolkien's actual examples -- well this seems to be rather an odd choice with respect to accuracy to my mind.
Re-read my previous post before repeating the same argument again. Jackson himself didn't know anything about Elvish, so he hired Salo. From his point of view, Salo's Elvish was as accurate as can be, since he probably hasn't read any critiques of Salo's work from the scholarly community.


Back up the train here -- you wrote: 'Maybe New Line had that kind of attitude, but there's no doubt PJ and the folks at Wingnut Films and WETA only wanted the Estate's assistance to help create a more accurate, painstaking vision of Middle-earth. Notes on Tolkien linguistics, advice on costumes, architecture etc.'
my apologies. I should have phrased that a little differently. I'm not SURE that 'PJ and the folks at Wingnut Films and WETA only wanted the Estate's assistance to help create a more accurate, painstaking vision of Middle-earth. Notes on Tolkien linguistics, advice on costumes, architecture etc.' but that is certainly my opinion, seeing as that's what the creators of the stage play asked for(and recieved) from the Estate.

I don't need positive proof that Jackson only wanted an official endorsement.
Then you have some doubt about that statement? It seems WCH doesn't. So I, in turn, take the liberty to ask him for proof.
It's not unlike Gen. Omar Bradley's status as "advisor" on the biopic Patton. Coppola got a very big-name endorsement; Bradley got a pot o' cash and a glowing, almost saintly portrayal onscreen.

What was never in play was anything resembling historical accuracy.

I asked for proof because you appeared to claim there was no doubt concerning your statement.
I'm afraid I don't have solid proof because most of the facts are unknown. You'll find that most of the posts here are made up of inferences made from known facts
instead of pure fact.

[Galin]

The films had several scenes where characters exchange Elvish dialogue which does not match the books word-by-word, and many of the songs in the soundtrack had Elvish lyrics. This demanded a lot more words and grammar than was printed in the LOTR books.

Yes, and this includes a decision on someone's part to add more fabricated Elvish. Since none was necessarily 'needed' for a film, I'm not sure what the point is here.

Re-read my previous post before repeating the same argument again. Jackson himself didn't know anything about Elvish, so he hired Salo. From his point of view, Salo's Elvish was as accurate as can be, since he probably hasn't read any critiques of Salo's work from the scholarly community.

I'll try a question here: was it Salo's decision to discard much of Tolkien's Elvish in favor of invented stuff?

One doesn't need to know much about Tolkien's Elvish to see what appears in the book, and incorporate that into the films. One might need help in incorporating it 'correctly'... but that doesn't mean adding all kinds of invented stuff while discarding Tolkien's material.

[Sauron the White]

It seems a fair gesture on the part of a filmmaker to go out and hire an expert on something of which he has little knowledge. That is what happened with the hiring of Salo. Instead of criticizing Jackson for this effort, it would seem some praise is in order for him attempting to go the extra mile to get things right. This kind of constant carping simply reinforces the idea that nothing short of a literal word for word translation- in this case Elvish words = from the page to the screen would have pleased some. I know of no cases where audiences emptied from the theaters in anger screaming "the Elvish was wrong:mad:"

[Bêthberry]

I know of no cases where audiences emptied from the theaters in anger screaming "the Elvish was wrong:mad:"

Possibly not. Most scholars of Middle-earth and Tolkien's languages would probably be too polite and socially gracious to do that.

I did, however, hear of mutterings to the effect of, "The Elvish has left the building."

:)

[Galin]

It seems a fair gesture on the part of a filmmaker to go out and hire an expert on something of which he has little knowledge. That is what happened with the hiring of Salo. Instead of criticizing Jackson for this effort, it would seem some praise is in order for him attempting to go the extra mile to get things right.

I have not criticized Jackson for seeking out an expert on Elvish, I expected him to do so.

And my earlier issue with his desire for 'accuracy' was in a larger context than whether or not he desired to get any grammar correct -- it's about the decision to toss out what one knows is accurate for what simply cannot be Elvish of the same order. It's easy enough: if one wants unassailable accuracy (and authenticity) use what you find in the books. All other Neo-elvish is already on a different level; and it's a different thing from the art of JRRT, no matter how well researched and fabricated.

That said, generally speaking I would no more mind invented Elvish in a film than invented scenes with Boromir, for example. But that's different from largely tossing out the scenes and dialog that Tolkien wrote concerning Boromir -- and replacing them with a greater bulk of others (written by Boyens or someone) which do not capture the spirit of the books, or which change Boromir into a character that resembles Tolkien's in name only (hypothetically -- actually Sean Bean was a bright spot in the films for me).

This kind of constant carping simply reinforces the idea that nothing short of a literal word for word translation- in this case Elvish words = from the page to the screen would have pleased some. I know of no cases where audiences emptied from the theaters in anger screaming "the Elvish was wrong"

Using some constructed Elvish in the same way Tolkien largely used his work would have been fine with me (despite that it is not 'true Elvish' to my mind).

The issue is Jackson choosing to largely discard the actual Elvish in the tale in favor of the Neo-constructions, including the issue raised by Mr. Hostetter, whose comments include '... constituting (mostly banal) _dialogue_ of the sort entirely _missing_ from Tolkien's own application of Elvish in his story (or anywhere else)').

And no one said audiences were emptying theaters in anger screaming. There's no need to inject hyperbole here -- my part of the discussion with zxcvbn has now (since the issue of 'evidence versus opinion' is off the table for the moment) narrowed down to me wondering why I should blame the person hired to construct the fabricated Elvish...

... when I am criticizing rather those who decided to largely leave JRR Tolkien's work at the door, and use lots of Neo-elvish instead.

[Galin]

Possibly not. Most scholars of Middle-earth and Tolkien's languages would probably be too polite and socially gracious to do that. I did, however, hear of mutterings to the effect of, "The Elvish has left the building."

Indeed 'it left'.

And, just for clarity here, for the thread, to my mind Carl Hostetter (since he is a scholar) is not criticizing how 'wrong' he thinks the fabricated Elvish is, or might be (regarding grammar or pronunciation), but rather that it does not capture the spirit of the books due to its nature. Moreover, it has taken over the linguistic stage not simply due to its own bulk, but due also to a disappearance of Tolkien's actual examples.

Not that I can speak for Mr. Hostetter, but I see nothing in the quoted section above about grammar or whatever... indeed he adds 'however skillfully' because that's not the point.

[zxcvbn]

Galin, it seems my discussion with you has reached a dead end. Regardless of how I reply, you seem to be repeating the same point over and over; that Jackson is guilty because he 'chose' to put 'fabricated' Elvish in the films. I once again reply that Jackson would not know that the Elvish was fabricated, and from his perspective(as well as most other fans') Salo's Elvish is the real thing. And indeed, whether or not it matches what Tolkien had in mind in his last years, it has been constructed using the Professor's own texts as a basis(use of loan words, earlier drafts etc.).

And as for maintainging the 'feel' of Middle-earth, it certainly sounds quite authentic, even if the exact words are somewhat different(something only a few people like Hostetter could make out).

[Sauron the White]

from Galin

It's easy enough: if one wants unassailable accuracy (and authenticity) use what you find in the books.

I understand your point and respect that it means something important to you and some others who share your love of the Professors Elvish . (and special bonus points to Bethberry for the best line of the month on the Elvish leaving the building). However, not meaning to be rude, but one is tempted to say "so what"? What does it matter to the construction, flow and success of LOTR as a film if the Elvish is used word for word, is changed slightly, or is invented out of whole cloth ? It really has no impact or effect on the film as a film.

Why would a filmmaker want "unassailable accuracy and authenticity" by using what they find in the books if it does not help them in constructing the story as a film? That is one of their main priorities and helps to determine the success of a film. The idea of "unassailable accuracy" means little or nothing in determining the overall success of a film.

I am not trying to belittle your position. Just to clarify that your priorities are clearly not the priorities of the world of commercial filmmakers.

[Galin]

Galin, it seems my discussion with you has reached a dead end. Regardless of how I reply, you seem to be repeating the same point over and over; that Jackson is guilty because he 'chose' to put 'fabricated' Elvish in the films. I once again reply that Jackson would not know that the Elvish was fabricated, and from his perspective(as well as most other fans') Salo's Elvish is the real thing.

He can read, of course. You appear to be defending Jackson for being ignorant enough to not even bother to check the books, or have someone do it for him. I'm not going to blame Salo for that either. And you are simplifying what I'm saying Jackson 'chose' to do -- see below.

And indeed, whether or not it matches what Tolkien had in mind in his last years, it has been constructed using the Professor's own texts as a basis(use of loan words, earlier drafts etc.). And as for maintainging the 'feel' of Middle-earth, it certainly sounds quite authentic, even if the exact words are somewhat different(something only a few people like Hostetter could make out).

If you disagree with Mr. Hostetter fine (as I said); but he is not talking about the sound or the exact words, but the type of language.

The 'taste' of Sindarin is well enough represented in my opinion -- but I have no great praise for anyone who decided to construct phrases like 'Sit down Legolas' and a pile of other similar Neo-language.

I understand your point and respect that it means something important to you and some others who share your love of the Professors Elvish . (and special bonus points to Bethberry for the best line of the month on the Elvish leaving the building). However, not meaning to be rude, but one is tempted to say "so what"? What does it matter to the construction, flow and success of LOTR as a film if the Elvish is used word for word, is changed slightly, or is invented out of whole cloth ? It really has no impact or effect on the film as a film.

That's a different discussion that I have not really entered into here. If you want to start a new thread on it I will be happy to read it and maybe contribute.

Why would a filmmaker want "unassailable accuracy and authenticity" by using what they find in the books if it does not help them in constructing the story as a film? That is one of their main priorities and helps to determine the success of a film. The idea of "unassailable accuracy" means little or nothing in determining the overall success of a film.

Nor would 'unassailable accuracy and authenticity' regarding the Elvish necessarily hurt the overall success of a film -- but as I have already stated, a measure of constructed Elvish in the film would not bother me. What Jackson did do goes beyond that however.

I am not trying to belittle your position. Just to clarify that your priorities are clearly not the priorities of the world of commercial filmmakers.

My priority would be to successfully adapt the spirit of the source material to film, and create a successful film too. That includes the languages, including the matter Mr. Hostetter speaks to regarding the tone and feel -- which does not mean Jackson needed to use only the Elvish found in the books.

The point was: if Jackson was so concerned with accuracy he could have easily achieved it by incorporating only the Elvish from the books. Ok he didn't, so, so much for 'accuracy' step one.

But I wouldn't be criticizing him today if all he did was add some constructed stuff of the same order as Tolkien's actual Elvish -- he went beyond adding fabricated Elvish, he added stuff of a different feel from the books and chose to largely discard Tolkien attested examples along the way. So, if one tries to paint Peter Jackson as the director in search of linguistic accuracy, because he hired an expert -- let's remember that at the same time he's largely tossing Tolkien's actual Elvish out the window.

Yes Jackson desired a measure and type of 'accuracy', once he decided that he was going to approach the languages his way that is.

[ArathornJax]

On page 7 and 8 of the compliant, the compliant traces the history of the rights from UA, to Zaentz to Miramax to New Line.

The compliant says, on point 27 on page 7
"In or about August, 1998, Zaentz consented to Miramax's assignment to defendant New Line of Miramax's rights and obligations under the Miramax agreement.

Pursuant to a written agreement effective May 9, 2000 between New Line and Zaentz (the "New Line/Zaentz Agreement"), New Line expressly assumed the obligations to pay plaintiffs their Gross Receipts Participation required by the 1969 Agreements with respect to any films based on the Literary Works produced by or pursuant to the authority of New Line. In sum, UA, Zaentz and Miramax are predecessors in interest of New Line and New Line "stands in their shoes." "

My question then is this. Is the compliant saying that New Line holds all the obligations and rights of the former holders, thus they must be held to them? I would assume that the answer is yes. Thus could you take say that later in the compliant, when the plaintiffs ask the court to rule on whether they have the right to cancel New Line's rights to making films on based on any of the literary works of J.R.R. Tolkien, could the plaintiffs legal team argue that since New Line "stands in their shoes" (UA, Zaentz, Miramax) that this would also cancel the rights of Zaentz and MGM and give the rights back to them, the plaintiffs (especially since Zaentz agreed to to the transfer of rights from Miramax to New Line)? This would allow them to sell the rights again under more profitable terms and thus would be a further punitive damage to the parties concern (in addition to the money NL will have to pay to them)? I guess I'm asking that if a breech by New Line to the agreement, voids the agreement for all parties since New Line is "standing in their shoes?" Can that be argued and if so, what are the chances that a court would do that, restore all rights back to the plaintiffs?

Any clarification would be appreciated.

[Sauron the White]

ArathornJax has asked the jackpot question. And I thank him for making it so clear. I also would like answers on that issue and ask in a slightly different way.

Is it possible that once they get into court (or before for that date) the Estate can make a demand that since Zaentz is the actual rights holder and New Line only a temporary lessee, that Zaentz is somehow someway responsible in the final analysis for making sure that the Estate got their rightful payment?

And .... if Zaentz did not somehow someway make sure that the Estate got their rightful payment then he is just as guilty of not paying the Estate theri rightful cut as New Line is?

And ... the rub would then be ..... take away the rights from not only New Line but also from Zaentz too since he is guilty of not protecting the Estate.

[William Cloud Hicklin]

The Complaint never proposes ending anyone's rights other than New Lines; and allows for protecting the interests of 'innocent parties.'

The court will look, not at one big indivisble parcel of rights- 'THE' rights- but as several chunks of rights which have been split up. UA never sold the Hobbit distribution rights to anybody, and there's no way they can lose them. Zaentz effectively split the rights he held in the licensing deal with Miramax- he sold the right to make films which commence production through 2008, but held onto the right to all films after that. The court can't take away Zaentz' 'reversionary interest' just because the other chunk of rights was mishandled after he sold them.

Although creative lawyers could in theory try to make a case that Zaentz is somehow at fault for New Line's non-performance, this suit *does not do so*. Zaentz is not a defendant, nor does the complaint allege any wrongdoing or negligence on his part.

It's a basic rule of plaintiff-side pleading that "The court can't give you what you don't ask for." The Estate has *not* asked for the termination of any rights not in New Line's hands. Again- were the Estate interested in taking rights away from Zaentz, then the Complaint would have named him as a defendant and alleged why he deserves to lose the rights. It didn't.

[ArathornJax]

Thank you WCH for clarifying that for me. It will be interesting to see how this falls out.

[Sauron the White]

from Galin

if Jackson was so concerned with accuracy he could have easily achieved it by incorporating only the Elvish from the books. Ok he didn't, so, so much for 'accuracy' step one.

What Peter Jackson was concerned with was making the best possible film he could make and having that film be a success by the standard measurements common in the commercial film business. And by those measurements it was a wild success.

Accuracy ---- what the heck is that? No film adaption is anything near the realm of "accuracy". Its an entirely different medium. One cannot adapt anything accurately from a book into the far different medium of film unless you use the book as your shooting script . Anything else is change. Accuracy regarding something as an obscure language which hardly anyone speaks is irrelevant as far as a films success is concerned. It would mean nothing either way and as such is a non issue.

[Galin]

What Peter Jackson was concerned with was making the best possible film he could make and having that film be a success by the standard measurements common in the commercial film business. And by those measurements it was a wild success. (...) Accuracy ---- what the heck is that? No film adaption is anything near the realm of "accuracy". Its an entirely different medium. One cannot adapt anything accurately from a book into the far different medium of film unless you use the book as your shooting script . Anything else is change. Accuracy regarding something as an obscure language which hardly anyone speaks is irrelevant as far as a films success is concerned. It would mean nothing either way and as such is a non issue.

I note that now accuracy is irrelevant when you shift the context to 'film success'. Earlier however, you were suggesting we roll out some praise for Jackson with your statement: 'Instead of criticizing Jackson for this effort, it would seem some praise is in order for him attempting to go the extra mile to get things right.'

Should we praise Jackson for his pursuit of accuracy in this matter? Or should we just note that it's irrelevant anyway with respect to 'film success'?

How the emphasis appears to have shifted :)

And if we stick to the subject of accuracy with respect to the Elvish then it's not really all that hard, of course, or overly mysterious, to keep things Tolkien-made if desired.

I'm not a scholar of the invented languages. That noted, had anyone hired me to represent JRRT's Elvish tongues in a film I feel reasonably confident I could: A) find the Elvish in the books for the director B) tell him what the examples mean using the sources available C) help with pronunciation D) add my thoughts concerning the creative task of incorporating the attested Elvish into the films.

No, I'm not going to praise Jackson for hiring someone to fabricate a different order of Elvish while largely tossing Tolkien's Elvish aside. And I see no great reason to blame Salo either.

[davem]

I can only note that CT did not get too hung up on correct pronunciation - in the tape he made as a pronunciation guide for the radio adaptation he pointed out that the 'correct' pronunciation of, say, Celeborn would be 'Keleborrn', but that in a modern dramatisation that wasn't necessary & 'Keleborn' would be acceptable. He also stated that in many cases there wasn't a 'correct' pronunciation of all words. The important thing, as far as he was concerned, was to avoid obvious mistakes in pronunciation - like 'Soron', etc.

Oh, & if anyone wants to hear some of that tape its available on a CD from Nigel Sustins via his website http://www.biblio.com/search.php?author=&title=microphones+in+middle+earth&keyisbn=&format=any&stage=1

'Microphones in Middle-Earth', talks given at Church House, Westminster, relating to the BBC Radio dramatisation of Tolkien's 'Lord of the Rings' on 5th March 1981. [Track 1] Brian Sibley and Michael Bakewell, co-adapters of the series, talk about how they tackled the task (33 minutes); [Track 2] Penny Leicester, co-producer, Stephen Oliver, composer, David Collings, actor (Legolas) and Peter Woodthorpe, actor (Gollum) discuss their work on the series (39 minutes). It only includes the first few minutes of the CT recording, but its very interesting to hear his attitude to dramatisation.

[Sauron the White]

from Galin

I note that now accuracy is irrelevant when you shift the context to 'film success'. Earlier however, you were suggesting we roll out some praise for Jackson with your statement: 'Instead of criticizing Jackson for this effort, it would seem some praise is in order for him attempting to go the extra mile to get things right.'

Should we praise Jackson for his pursuit of accuracy in this matter? Or should we just note that it's irrelevant anyway with respect to 'film success'?

You seem to be a stickler for the tiniest iota of detail so allow me to add a few qualifying words to my original statement....

Jackson went the extra mile to get things right as necessary for the film. I had thought that was implied from my comments but I guess that was my fault for not making it more clear. So I do so here.

Over the years we have seen countless discussions of this type where someone has a particular deep interest or love of one specific aspect of the book and is angry or dissapointed that it was altered for the movie. Here it seems to be Elvish. With others its the hair color of Legolas or Boromir. With others its the lack of facial hair on Denethor. Others claim that Theoden is too young and virile. And on it goes without end.

We are discussing the movie. When we discuss the movie it is relevant to mention that the film was a rousing success by most standard industry measurements because that is the final test of such commercial ventures. To the vast majority of the six hundred ticket buyers of the films, it did not matter if the hair color of Legolas or Boromir was correct or how long ago Denethor had stopped shaving or if a phrase of Elvish was accurate or had been cobbled together from someones imigination. It matered not to them because the film worked. It worked.

Peter Jackson had no obligation to make his film as accurate as possible or as faithful as possible or as bookish as possible. None at all. Because none of those things matter in the final judgment as to the film working as a film.

[davem]

Of course, one has always to keep in mind that he didn't have to make the film at all, & that having freely chosen to make it he was never, ever, ever, ever ever going to escape criticism from some lovers of the books because THIS IS TOLKIEN.

Tolkien's work, for whatever reason, inspires a deep & abiding love in the hearts of many of those who read it. It changes their lives & makes them different people. When someone comes along & starts playing around with it, changing it - however good their reasons - they will bring down on themselves the 'righteous ire' of those fans.

You have to keep in mind that LotR is not simply another book as far as many readers are concerned, & lovers of the book feel a deep attachment to it. LotR is a pretty unique case among works of fiction - how many novels from the mid fifties are still so popular that they are still published, & sell massively, in hardback? Harper Collins in the UK must have a half dozen different hardback editions in print & as many in paperback - teverything from cheap mass market paperbacks at one extreme to expensive slip-cased deluxe editions at the other. And this is not down to the movies - it has pretty much always been the case that both standard & deluxe hardbacks of LotR have been available.

And we need to put aside this 'the movies are not the books' thing once & for all. The producers have gone out of their way to tie the movies in with the books - the SEE versions come in cases designed to look like books, & the on-screen menus are designed to look like books (even down to using the term 'Appendices' rather than the usual 'Extras' on the 'pages'). DVD 'chapter titles' are in most cases taken from the chapter names in the book. Jackson & the producers have gone out of their way to tie the movies in with the books - to the extent of employing two of the best loved Tolkien book illustrators as production designers. Jackson didn't have to do any of that.

Put simply - no-one is more 'guilty' of attempting to tie the movies directly into the books than Jackson himself. If he then finds himself criticised for not being faithful to the books I don't think he's really got grounds for complaint. If he hadn't wanted his movies to be judged by the books he could have done a great deal more to distance the two. Try listening to the commentary tracks & counting how many times Jackson, et al, talk about 'being faithful to the book'.

[Sauron the White]

davem

I do think your latest post was written from the heart and contains a great deal of truth. Your point about the lasting qualities of these tales rings very true and it certainly is obvious that millions of readers love the LOTR far more than the average book which comes and goes from bookstore and library shelves with little notice.

I especially find your words to be very poignant when you state

Tolkien's work, for whatever reason, inspires a deep & abiding love in the hearts of many of those who read it. It changes their lives & makes them different people.
You have to keep in mind that LotR is not simply another book as far as many readers are concerned, & lovers of the book feel a deep attachment to it. LotR is a pretty unique case among works of fiction - how many novels from the mid fifties are still so popular that they are still published, & sell massively, in hardback?

But having said that, I think this statement

And we need to put aside this 'the movies are not the books' thing once & for all.

is simply an attempt to find a way around one of the most convincing and obvious points in this continuing discussion. To put away this idea that the movies are not the books once and for all would be akin to all agreeing that what is reality is simply not. It is simply not true and to accept your idea would be a betrayal of reason and fact. Yes, I realize that my saying this angers many here and they would rather not hear about it again. Several have pointed out to me that they tire of hearing it, reading it, and responding to it. I imagine they would be happier in an environment where those nasty realities are never mentioned.

A book is one thing and a movie is another thing. The characteristics, elements, qualities, features, assets and liabilities of one are not the same as the other. To deny that is to deny real world reality.

The fact that the extended editions were packaged to look like books does not change the reality that a book and a movie are two different things. The nice wrapper does not change the characteristics of the real object. Book illustrators were used because they are talented and have knowledge about the world they were asked to illustrate. The fact that they worked on the books does not alter the reality that they produced work for something different - a movie.

Put simply - no-one is more 'guilty' of attempting to tie the movies directly into the books than Jackson himself. If he then finds himself criticised for not being faithful to the books I don't think he's really got grounds for complaint. If he hadn't wanted his movies to be judged by the books he could have done a great deal more to distance the two. Try listening to the commentary tracks & counting how many times Jackson, et al, talk about 'being faithful to the book'.

Advertising and marketting and shiny packaging does not change the reality of the essence of an object or thing. You are too easily confused by the games of Madison Avenue. Jackson did not write a book about LOTR. He made a movie adapting the book. That is distance indeed. That is distance enough because the two are not the same. When Jackson talks about being faithful to the book he does so in the context of making a film that works as a film. That was his goal and his obligation. He made it faithful enough so that it was still LOTR. He changed it enough to make it work as the film LOTR. An please remember that the one who knew the book the best - JRR Tolkien himself, felt that his book was unfilmable as written. To be faithful to be book would have produced something that could not be filmed. That is not my opinion but a reasonable inference from the authors own statements.

[Galin]

You seem to be a stickler for the tiniest iota of detail so allow me to add a few qualifying words to my original statement....

I'm just trying to say on topic instead of being pulled into a discussion that (it appears) you want to have.

Over the years we have seen countless discussions of this type where someone has a particular deep interest or love of one specific aspect of the book and is angry or dissapointed that it was altered for the movie. Here it seems to be Elvish. With others its the hair color of Legolas or Boromir. With others its the lack of facial hair on Denethor. Others claim that Theoden is too young and virile. And on it goes without end. To the vast majority of the six hundred ticket buyers of the films, it did not matter if the hair color of Legolas or Boromir was correct or how long ago Denethor had stopped shaving or if a phrase of Elvish was accurate or had been cobbled together from someones imigination. It matered not to them because the film worked. It worked.

The matter under discussion was not in the context of how important or minor it is to a film's success. You appear to be trying to shift it that way. I'm well aware that a phrase being Elvish or Neo-elvish doesn't really matter to the vast majority concerning the film; however the point I raised by quoting Mr. Hostetter is about fidelity to the tone and feel of Tolkien's work.

And this alone is a worthy enough point to be raised to my mind, despite that one could jump into the thread and claim that no Elvish at all was necessarily 'necessary' in the film for it to make tons of money or win some Hollywood award -- and thus make it seem as if the matter is trivial in a certain context (no matter whether it is 'trivial' or not with respect to other considerations worth discussing).

Peter Jackson had no obligation to make his film as accurate as possible or as faithful as possible or as bookish as possible. None at all. Because none of those things matter in the final judgment as to the film working as a film.

Again I'm not sure with whom you are having this discussion. Earlier I wrote...

'My priority would be to successfully adapt the spirit of the source material to film, and create a successful film too.' (and) '... but as I have already stated, a measure of constructed Elvish in the film would not bother me.'

I have not argued that with respect to the Elvish Jackson was under some obligation to be as 'accurate as possible' (staying 'on topic' on the languages, off topic as it may actually be, in this thread).

[Sauron the White]

Galin
Please... please ... no patronizing lectures from on high about my being off topic. The topic here was "or no hobbits at all". And you keep talking about the use of Elvish in the LOTR films. Seems the pot is calling the kettle black.

All I am trying to do is discuss an issue you posted about here. With all due respect to you, I reserve the right to approach it in the way I feel is best. Thank you.

[Galin]

Please... please ... no patronizing lectures from on high about my being off topic. The topic here was "or no hobbits at all". And you keep talking about the use of Elvish in the LOTR films. Seems the pot is calling the kettle black.

In my last post I admitted the languages were off-topic here.

And earlier when you began (post 83): 'What does it matter to the construction, flow and success of LOTR as a film...' (see above) I responded with: 'That's a different discussion that I have not really entered into here. If you want to start a new thread on it I will be happy to read it and maybe contribute.'

In any case, the issue is not so much topic, but the topic in context.

All I am trying to do is discuss an issue you posted about here. With all due respect to you, I reserve the right to approach it in the way I feel is best. Thank you.

Feel free. You don't need to quote something from my posts to form a soapbox for your opinions on 'film success' however.

And intended or not, I feel you are misrepresenting my argument by doing so, as the contexts are different (for example [currently] post 88).

I have no problem with you giving your opinion on accuracy in general but at the end of post 91 it seems implied that my argument concerning 'accuracy' is something it is not; and it only takes a few moments to word a post for better clarity in this regard.

[Sauron the White]

from Galin

In any case, the issue is not so much topic,
really? It seems to be something that you have brought up a couple of times until you were called on it.

but the topic in context.

The context here is not as narrow as you want to keep it. As the moderators have explained over and over in many threads, discussion of the work of JRRT and the movies that flow for that work is on topic regardless of the ebb and flow of how a thread evolves.

It does seem really bizarre and highly irregular for you to even mention being off topic when this thread was started to discuss the possibility that there may not be any HOBBIT films at all. You eventually mentioning that reality in no way diminiishes your own deviation from that orginal thread topic.

Lets get back to the thread topic of no more hobbits if we can.

[Galin]

I think the thread as it stands shows that I meant I wanted to keep the topic in context (for my part anyway).

The context here is not as narrow as you want to keep it. As the moderators have explained over and over in many threads, discussion of the work of JRRT and the movies that flow for that work is on topic regardless of the ebb and flow of how a thread evolves.

I said feel free to enlarge the context as you like -- just try and do it in a way that does not misrepresent my argument please.

Lets get back to the thread topic of no more hobbits if we can.

I'm all for that :)

[Sauron the White]

from Galin

I think the thread as it stands shows that I meant I wanted to keep the topic in context (for my part anyway).

This thread was started to discuss the legal actions taken by the Tolkien Estate and how it may end up finishing off the idea of the 2 possible HOBBIT films.

Your posts have continually discussed the Elvish language in the Jackson films.

How in the world can you now say with a straight face that you meant to keep the topic in context? Elvish language and its use or misuse has nothing to do with the original topic of this thread.

And what is with this "for my part anyway"? It was your part that played a significant role in getting this off the topic that the thread started with. Is that qualfier some sort of public show of washing your hands to show that you are without any responsibility? The first 61 posts in this thread dealt with the topic. Then one person mentioned languages in passing as a tiny part of thread 62.... then you turned it into some major platform and have run with it ever since.

As I have said, the threads flow and evolve the way they do and the mods have said that as long as we discuss Tolkien or the films it is okay. But to first change the topic of the thread and then lecture me that I am not discussing it in the context you want to is completely bizarre.

[Galin]

This thread was started to discuss the legal actions taken by the Tolkien Estate and how it may end up finishing off the idea of the 2 possible HOBBIT films.

Your posts have continually discussed the Elvish language in the Jackson films.

How in the world can you now say with a straight face that you meant to keep the topic in context? Elvish language and its use or misuse has nothing to do with the original topic of this thread.

And what is with this "for my part anyway"? It was your part that played a significant role in getting this off the topic that the thread started with. Is that qualfier some sort of public show of washing your hands to show that you are without any responsibility?

As I have said, the threads flow and evolve the way they do and the mods have said that as long as we discuss Tolkien or the films it is okay. But to first change the topic of the thread and then lecture me that I am not discussing it in the context you want to is completely bizarre.

I meant the 'topic of the languages' that arose in this thread -- yes obviously a subtopic technically. I could have stated that more clearly; but as I could hardly be claiming to have kept on topic with respect to the original (topic), the meaning seemed clear to me when I posted it. All I meant by 'for my part' is that I did not desire to get dragged into the context of 'Elvish and the film's success'... though as I say others are free to go there, of course.

Back to the 'main topic' I hope.

[ArathornJax]

In terms of the lawsuit, I think it will be some time before we hear anything more in the public realm about the suit. I imagine that the lawyers on both sides are preparing and reviewing right now.

[zxcvbn]

Galin, it seems to me that the sum of your arguments is: In order to be accurate Peter Jackson should have incorporated ONLY the Elvish dialogue seen in the books and nothing else. I consider that an amazingly unfair expectation. NO adaptation of LOTR(BBC, film or the recent stage adaptaion made with the Estate's permission) has ever had the dialogue copy-pasted from the books.

And if you want to argue against the Salo Elvish reconstructions, I would like to point out that the accuracy(or lack of) of these is heavily debated, and I would advice against your passing off Carl Hostetter's opinions as fact when(I hazard a guess here) your own knowledge of Elvish is limited to a dozen or so words.

[Galin]

Galin, it seems to me that the sum of your arguments is: In order to be accurate Peter Jackson should have incorporated ONLY the Elvish dialogue seen in the books and nothing else. I consider that an amazingly unfair expectation. NO adaptation of LOTR(BBC, film or the recent stage adaptaion made with the Estate's permission) has ever had the dialogue copy-pasted from the books.

I have made statements already that I think should show that this is not my argument, though I agree I might not always have been wholly clear in setting apart my preference (concerning the approach to the languages in general), and my actual criticism of Jackson here.

Within my argument I mean Jackson could have incorporated only the Elvish from the books, not that he should have in the sense that he 'needed' to, but only 'should' have in the sense that I would have liked it better (myself) -- that is only 'step one' -- as in, one approach he could have taken, but did not.

OK, I prefer that, but also it is a factor to consider if one is going to paint Jackson as going the extra mile. In that Neo-elvish is not Elvish (Tolkien's own art) no matter how good the grammar is, or is not, and considering that 'unassailable accuracy' is found with Elvish, then jackson really went that extra mile after he decided to skip this approach.

Back to the Estate: originally I said Jackson didn't 'have to' go to the Estate or anyone to represent Tolkien's Elvish; and again he didn't have to go to Salo for fabricated Elvish (who then in turn tries to make that as accurate as he could). He could have hired someone to help with using only the Elvish already available. OK, he didn't, and this is not the problem.

My ultimate preference on the matter should not be confused with what I have criticized Jackson for doing -- missing the feel and tone with respect to the type of language he added and largely tossing Tolkien-made examples aside in one fell swoop.

By type I refer not to grammar or how good a job Salo did with his invented stuff, but to Elvish renderings of dialogue like 'Sit down Legolas' or 'Be quiet...' or similar (whatever they all are exactly, I can't remember now). By type I mean to refer to Mr. Hostetter's distinction when comparing Tolkien's work to Jackson's substitutions: '... please note, are almost entirely in the form of songs, poems, spells, and exclamations made in crisis or _de profundis_ that are used sparingly so as to punctuate the story and to not cheapen the effect of the Elvish -- and instead substituting for them long passages of made-up "Elvish" (however skillfully) constituting (mostly banal) _dialogue_ of the sort entirely _missing_ from Tolkien's own application of Elvish in his story (or anywhere else).'


And if you want to argue against the Salo Elvish reconstructions, I would like to point out that the accuracy(or lack of) of these is heavily debated, and I would advice against your passing off Carl Hostetter's opinions as fact when(I hazard a guess here) your own knowledge of Elvish is limited to a dozen or so words.

I don't want to argue against the accuracy of the grammar of Salo's Neo-elvish, and haven't been. Neither has Carl Hostetter in the quote I posted.

And here we are guessing that my own knowledge of Elvish is 'limited to a dozen or so words' incidentally. Can you correctly guess how tall I am? Or my favorite color?

I bet you can't :D

[Sauron the White]

First we saw the accountants and attorneys for Saul Zaentz go up against the accountants and attorneys of New Line Cinema. Then Peter Jackson assembled his own legion of numbers crunchers and did the same. Even the lower tier bit actors like Rosie Cotton got into the act and hired legal atalent to get their share of merchandising monies. Now its the Tolkien Estate with their own company of lawyers and forensic accountants.

The Battle of the Five Armies takes on an entirely new meaning.

[Sauron the White]

Three questions for our legal minded Downers...

1.- if this suit was filed in California why would New York law apply?

2. - Would the previous filings of Wingnut Films and Peter Jackson be available to the Estate and would Peter Jackson be a good possible witness to assist them?

3- This was posted on another site - halloffire.net - by an attorney. Is there any truth to this and could you explain what you think it means?

If the Estate REALLY wanted to play hardball, they could move in 2012 (1937 + 75 years) for copyright reclamation, voiding every single license or copyright assignment in TH JRRT ever made in his lifetime. The same could apply to the LR in 2010-11 (1954-55 + 56 years).

Thank you for the pro bono work. ;)

[William Cloud Hicklin]

1.- if this suit was filed in California why would New York law apply?

New York law applies because all parties to the original 1969 contracts agreed that it would. This is legally valid and indeed almost standard in commercial contracts (read the fine print in a product warranty if you don't believe me). The case was filed in California because New Line is located there and therefore California has in personam jurisdiction. It's not all that unusual a situation.

2. - Would the previous filings of Wingnut Films and Peter Jackson be available to the Estate and would Peter Jackson be a good possible witness to assist them?

The actual filings- documents filed with the court- are matters of public record and open to anyone. Of course since PJ eventually settled a lot of stuff was never filed or submitted as evidence. Whether PJ would be a good witness is a judgment call for the lawyers. However, it's certainly possible that PJ's version of production costs might be rather different from what New Line is claiming!

3- This was posted on another site - halloffire.net - by an attorney. Is there any truth to this and could you explain what you think it means


I posted it, and was referring to the doctrine of Copyright Reclamation, a part of US law. The purpose behind it is to allow the heirs of an author or artist a chance to 'reclaim' the copyright as against any really crappy deal he might have made in his lifetime: the classic case is that of Superman's creators who sold the character to DC Comics for peanuts. Basically the way it works is that whenever a copyright by a *deceased* author comes up for its third or fourth renewal (at 56 or 75 years after publication) the author's heirs can apply to reclaim the copyright and void any assignments or licences the author may have granted in his lifetime.


I have absolutely no reason to think, incidentally, that the Tolkien Estate is remotely contemplating anything of the sort. I brought it up rather as the sort of the thing this mythical Mean Old Take-Our-Movies-Away Estate might indulge in., if it really wanted to be nasty.


-

[Sauron the White]

Thank you William for those answers. Interesting to see that it was you in another form who posted that other information. Small world.

So now what happens? Is there anything that prevents NL from going ahead on this film right now while the legal dispute plods on for months or even years? Would the Estate have to ask for an injunction to stop the films from being produced.... or once done, distributed to theaters?

One of the things that I was looking forward to in the Jackson suit was a final resolution to this and a end to Hollywood accounting methods. I wanted to see all the dirty laundry aired in public, all the in-house merchandising deals revealed, and all the accounting gimmicks exposed. It seemed that Jackson and his legal team wanted that also. In the end they settled for the same thing that everyone else settles for - money and the prospect for even more money in the future.

I wonder will the Estate do the same or will they force the issue takin this all the way to a jury?

[Mandos Turambar]

Much has been written above about the Plaintiffs seeking to stop any new movie. The odds of this happening through successful litigation are unlikely in any common law court. I have not read which court this suit is in, but essentially all US states and the federal system have a very strong public policy of NOT using equitable orders when the plaintiff can be made whole by contract damages.

The law is divided into multiple areas. For instance, Torts are civil wrongs, such as assault, trespass, slander, etc.., while Contracts are oral or written agreements. Historically, the courts were divided into the law courts and the courts of equity. With limited exceptions, the law courts did not issue orders except for the payment of money, while the equity courts primarily issued orders, generally known as injunctions. In modern practice, these two courts are merged, but the echo of these differences remains.

Essentially all common law jurisdictions (i.e. governments that mainly derive their law from the built up case law of England) follow a rule that says, "when a contract calls for a monetary payment, the relief granted to a plaintiff pleading breach of contract is limited to ascertaining the amount of monetary damages and making an award thereof." In other words, where the plaintiff can be made whole by awarding damages, he/she is not entitled to other relief such as injunctions. This rule is strong, but not absolute. Where fraud (a tort) is properly pled, it can augment the remedies, perhaps leading to injunctions to prohibit further fraud.

However, it appears from the press reports, and what is posted above, that the Tolkien Trust et al. are seeking "rescission" based upon allegations of fraud. This is a very difficult thing, as rescission is used primarily as a remedy for "fraud in the inducement" to enter into the contract - and nothing here would indicate that there is any fraud (if there is) except with regard to New Line's accounting practices (note that I am NOT saying that such allegations are true).

Thus, it is very likely that there is no legal basis for the Tolkien Trust's petition for an order barring further productions. All that is likely is an order that sets forth what the contract means, gives damages for its past breach (if that is found), and perhaps sets forth how it will be interpreted for the future as it applies to the Hobbit.

I'm just a country lawyer, but all this is pretty elementary law...
Then again, Ecclesiastes is right when it says, "One sounds right until another answers." We really have too little information so far, and I cannot wait to hear New Line's response.

[Mandos Turambar]

I am fascinated by some press reports that indicate that NL is planning 2 "Hobbit" movies, one being the story of the Hobbit, and one being the period between the end of the Hobbit and the beginning of LotR.

I expect that this issue will be fiercely litigated by the Tolkien Trust and heirs. I very much hope that we will get to see the rights contract soon (i.e. the one that JRRT signed in '66), as I cannot imagine that he, so jealous of his great creation, would have knowingly transferred creative rights for new story content!

Then again, some published reports long ago indicated that he signed the contract while desperate for $ to pay taxes, and he may not have had adequate legal advice on the implications as well.

Anyone know more on this?

[William Cloud Hicklin]

Mandos: at least as alleged in the Complaint, the original 1969 agreements by their own terms provide for recission in the event of material breach.

As for New Line proceeding while this suit is in litigation: how will they get financing? Investors won't touch this with a ten-foot pole until the matter is resolved.

[Mithalwen]

I know that the wheels of the English legal system seldom turn swiftly and don't get the impression that the US version moves with more alacrity, but is this likely to take months or years to come to court? Could it turn in to a Jarndyce v Jarndyce?

[Sauron the White]

Thanks to both WCH and Mandos for their legal expertise. I truly appreciate the clarity of the posting by Mandos regarding injunctions.

I found this from WCH interesting

As for New Line proceeding while this suit is in litigation: how will they get financing? Investors won't touch this with a ten-foot pole until the matter is resolved.

Is this something you know as fact based on news or inside reports or is this just your conclusion based on how you see things? Because I have read several legal people say that while the Estate has a strong case in winning damages, their claim to stop the upcoming productions is weaker in comparison. Given the track record of LOTR in terms of revenues, if there is one film that investors would be lining up to get in on it would be another Jackson Middle-earth film. Of course, that excludes the accounting methods of NL to pay off the investors. If protections could be provided and accounting methods transparent, I would think there would be a rush of investors to fund these films.

If Warner takes over operations of NL I would think they would have little difficulty in financing a $150 million dollar film with the possibility of $1 billion in ticket sales let alone ancillary revenue.

[Sauron the White]

from Mandos

I expect that this issue will be fiercely litigated by the Tolkien Trust and heirs. I very much hope that we will get to see the rights contract soon (i.e. the one that JRRT signed in '66), as I cannot imagine that he, so jealous of his great creation, would have knowingly transferred creative rights for new story content!

This is speculative of course.... but ... most reports indicate that the second movie could be built around the attack on Saurons fortress in Mirkwood and the efforts of the White Council to displace him. That is a very real thing that JRRT wrote about and something to which the rights were assigned in 1969. Other events were also written about by JRRT although not in a detailed fashion.

question: can the Estate object to anyone using these events and characters that were clearly written about by JRRT and then the producers filling in the spaces and connecting the dots with dialogue of their own? Is that the same as "new story content"?

And is that what this is about aside from the money? The goal of stopping of that second film from even being made. Because that is what some have been saying ever since the suit was announced but have been met with denials and words of calming caution by defenders of the Estate.

[Mister Underhill]

Well, the rumored absorption of New Line by Warner Brothers finally happened (http://www.variety.com/article/VR1117981598.html?categoryid=13&cs=1). It will be interesting to see how this affects not only The Hobbit and the litigation with the Estate, but also Pullman's HDM franchise. Compass looks like it's going to be big in Japan.

[Sauron the White]

Thanks for that bit of good news Mister Underhill. Now they need to
1- fire Shaye and his cohorts
2- sit down with the Estates legal team and work a settlement
3- adopt honest accounting methods so nothing like this happens again to anyone they deal with

And all that should happen by tomorrow. ;)

[Sauron the White]

Shaye is gone.

"February 28, 2008

To: New Line Colleagues

From: Bob Shaye and Michael Lynne

Subject: Our Company

This afternoon, Time Warner is announcing that New Line will become a unit of Warner Bros. This is, of course, a very difficult and emotional time for all of us who have worked at New Line. While there is not much we can say that can lessen the impact of this announcement, we did want you to know about the decision before you read about it in the press.

New Line will maintain its own identity and will continue to produce, market, and distribute movies. But New Line will now do so as part of Warner Bros. and will probably be a much smaller operation than in the past. Time Warner hopes that operating New Line as a unit of Warner Bros. will allow New Line to focus on the creative side of movie-making, while reducing costs and taking advantage of Warner Bros.' distribution systems. The company will be holding group meeting with New Line employees tomorrow in Los Angeles and New York to discuss this announcement, and is committed to letting employees know as soon as possible about how this change affects them individually.

For our part, we will be stepping down as Co-Chairmen and Co-CEOS of New Line. This was a painful decision, because we love New Line and the people who work here have been like our second families. But we will be leaving the company with enormous pride in what all of us at New Line have accomplished together. From its humble beginnings 40 years ago, our studio has created some of the most popular and successful movies of all time. Those movies are a tribute to the amazing creative energy and entrepreneurial abilities of the talented people at New Line. They are a legacy that will endure forever.

Although we are stepping out of New Line, we intend to remain actively involved in the industry in an entrepreneurial capacity, and will keep you advised of developments.

We thank all of you who have worked so hard to make New Line such a success. We are very proud of every one of you.

Bob & Michael"

[Child of the 7th Age]

The Golden Compass film was a disappointment, but I would still like them to go ahead with the sequels. Given the profits generated by Compass overseas, perhaps it would be profitable to make the second and third movies if Warner adopts a new scheme for handling foreign revenues from their movies, which now appears likely.

How great if this whole dispute would suddenly be settled fairly out of court now that new parties are involved. But I doubt the likelihood of that when so much money is involved.

[Sauron the White]

from VARIETY the show business newspaper reporting on the various implications of the NL folding and Shaye departure.

Variety’s article :
‘Warner Bros. gobbles up New Line’: “The Hobbit” has Guillermo Del Toro in talks to direct, and the picture will be unaffected by the ouster of Shaye and Lynne. Though the films won’t be scripted until a director is hired, and Jackson wraps “The Lovely Bones,” the expectation is that the films will be ready for release for Christmas 2011 and 2012. Harry Potter will have wound down at WB by then, and the corporation will surely welcome another fantasy franchise that has an eager global audience waiting. New Line will distribute domestically, while MGM has international rights.

The official HOBBIT movie site and discussion board has been carrying the official announcement since back in December stating that the two films would be released in 2010 and 2011. This article seems to postpone that by a full year although no months were given in either release cycle. You would have to suspect they would want to keep to the December releases since they had proven success with that.

Would this extra year be to a) work out a deal with the Estate before proceeding any further, or/ and b) get Jackson on board in a larger capacity even if it he will not direct - at least the first pic?

[ArathornJax]

Well, some more great info/speculation from The Frodo Franchise site. First comes this from Fred Schrurers blog found at http://www.portfolio.com/views/blogs/the-hollywood-deal/2008/02/29/the-perfect-storm-that-sank-shaye-and-lynne-at-new-line

The article is called The Perfect Storm that sank Shaye and Lynne. He makes some excellent points I think.

Most fans will find this quote interesting:

"In the last category, Shaye and Lynne's long unwillingness to cede control to the company that linked with them in 1996 by acquiring the studio's then-parent Turner Broadcasting System, mixed with such untoward events as another perfect storm around the company's one huge success, Lord of the Rings (New Line was sued by director-producer Peter Jackson, original option holder Saul Zaentz, and more recently, the Tolkien estate).

That perfect record of being called chiselers on their biggest hit (the first two disputes were settled out of court) dovetails with Warner Bros.'s need to take the Hobbit project in hand--now that Jackson has agreed to produce it--and free it from potential legal entanglement by the Tolkien trust."

Kristin Thompson states on her blog "That reference to freeing the Hobbit project “from potential legal entanglement by the Tolkien trust” may hint that Warners or New Line will settle out of court in the not-too-distant future–which would be a logical move, given the value of the franchise." See the rest of her quote over at her blog.

Here's the link to The Frodo Franchise for Kristin's take:

http://www.kristinthompson.net/blog/

I sure like the sound that Warner Bros. "needs to take the Hobbit project in hand -- now that Jackson has agreed to produce it -- and FREE IT from the potential legal entanglement by the Tolkien trust."

Sure sounds like a settlement is coming!

[Sauron the White]

Given the time that has passed since the Estate filing, does anyone know if there was a legal answer from NL/Warners? Is there any news on this front?

[zxcvbn]

Most likely several months will go by without news and we'll only know about the settlement when it happens, just as in the case of PJ's lawsuit.

By the way, what's this talk of Peter directing the second film? I thought the plan was to shoot both prequels simultaneously(like the LOTR films), indicating a common director for both? That would make sense considering that there is only a one year difference between the realeases.