Zaentz countersues the Estate

[Zigûr]

Hello everyone,
I imagine some of you heard late last year that the Estate was involved in legal action against Warner Bros. and Saul Zaentz Co. regarding the production of The Lord of the Rings-themed digital products, with the particular sore point apparently being gambling machines. Well apparently Zaentz et al have decided to respond in kind, issuing a counterclaim of their own:
http://www.wired.com/underwire/2013/01/lord-rings-slot-machines/
http://www.icv2.com/articles/news/24963.html
Now normally I'd consider this to be part of the regular back-and-forth that might happen in these kinds of situations. What's particularly egregious about it, however, is this assertion from Zaentz Co. (quoted from the ICv2 article):
"Zaentz admits that The Lord of the Rings and The Hobbit (and associated and proprietary characters, elements and markes) are among the most famous and valuable marks in the world," the response said, "and that an excellent reputation and highly valuable goodwill has been developed... Zaentz denies that this is the result of Plaintiffs’ efforts; rather, the fame and good will developed in these marks, products, goods, and services is largely the result of the dedicated efforts of Zaentz and its licensees (including Warner Bros.) over the past four decades."
Now while this is a truism when it comes to merchandise and what not which must have its origin in these corporate entities it almost seems as if they're claiming that they are responsible for the success of The Hobbit and The Lord of the Rings in general: "associated and proprietary characters, elements and marks". As far as I'm aware such a claim is not so much disputable as demonstrably wrong; Professor Tolkien's work was a massive success before these rights ever came into play, which has certainly not been happening in any noticeable way for as long as forty years - perhaps more like twelve when the films were getting going. I don't see Zaentz doing much for the "marks" between the time of their acquisition in 1976 and the release of New Line's adaptation of The Fellowship of the Ring in 2001 apart from the animated adaptations and some role-playing material which surely does not account for the majority of the "fame and good will developed in these marks" between those years.
Never have I seen the horrible corporate notion of "We made Tolkien better and are owed for it" made more apparent. I am reminded somehow of a similar claim which was also of dubious validity:
"I am the Elder King: Melkor, first and mightiest of all the Valar, who was before the world, and made it. The shadow of my purpose lies upon Arda, and all that is in it bends slowly and surely to my will."
So my question is this (for those who might be knowledgeable in such lore): is a claim of "four decades" remotely justifiable?

[Morsul the Dark]

Hmmm interesting thought... I think it could be argued that the maintained interest is due to the efforts of the movie industry Indeed most of these machines depict the actors of the motion pictures and not fan art lifted from the book...

[Nerwen]

Hmmm interesting thought... I think it could be argued that the maintained interest is due to the efforts of the movie industry Indeed most of these machines depict the actors of the motion pictures and not fan art lifted from the book...
But "over the past four decades"? Undoubtedly the Lord of the Rings films created fresh interest in Tollkien- but they weren't made forty years ago, were they?

[Morsul the Dark]

Zaentz produced the baski films in 78 I think that's where they get the forty years

[Nerwen]

Zaentz produced the baski films in 78 I think that's where they get the forty years
Seriously, Morsul- Baski's Lord of the Rings was responsible for the success of the novel? C'mon!

[William Cloud Hicklin]

This is after all Saul Zaentz we're talking about- underhanded and sleazy even by Hollywood's non-standards.

[Morsul the Dark]

Seriously, Morsul- Baski's Lord of the Rings was responsible for the success of the novel? C'mon!

I said no such thing, I said that's where the four decades comment was established.

[Nerwen]

I said no such thing, I said that's where the four decades comment was established.
Yes, but- well, see my original comment. They're claiming it's "largely"" due to their efforts "over four decades". As the books were certainly famous and popular before the Jackson films, it follows that they must be talking about earlier adaptations or what-have-you (and associated marketing).

[Morsul the Dark]

Yes, but- well, see my original comment. They're claiming that the fame and success of the Lord of the Rings and The Hobbit are "largely" due to their efforts "over four decades". As these were certainly famous and popular books before the Jackson films, it follows that they must be attributing their success to earlier adaptations or what-have-you.

They are they're claiming the popularity was maintained through films ec starting with the Bashki films in 78. I didn't say they were right, or that I even agree. I'm just saying That's the case they're trying to build.

Frankly I think they'll do pretty well considering the dominance over culture Television and film have had over the past 50-60 years. I don't think it's too hard a sell to say the films are more popular than the book. Like I said I don't agree, but they only need to get 12 couch potatoes on a jury to agree...

[Nerwen]

They are they're claiming the popularity was maintained through films ec starting with the Bashki films in 78. I didn't say they were right, or that I even agree. I'm just saying That's the case they're trying to build.

Frankly I think they'll do pretty well considering the dominance over culture Television and film have had over the past 50-60 years. I don't think it's too hard a sell to say the films are more popular than the book. Like I said I don't agree, but they only need to get 12 couch potatoes on a jury to agree...
And I'm saying I think it's a pretty hard case to build since as far as I know none of the previous adaptions had any great success. And generally a main reason for a novel to be considered worth adapting is that it is already popular. Hollywood isn't likely to show much interest in the film rights to a book no-one's ever heard of.

[Morsul the Dark]

I wish I could say I agreed with you.... But people don't buy toys for books...

I'm reminded of that scene in Spaceballs,
http://www.youtube.com/watch?v=oNZove4OTtI

[Nerwen]

I don't think that's the point.

[Nerwen]

What I'm saying is, it certainly seems that Zaentz Co did little that would have contributed to the "fame and goodwill" of the Lord of the Rings and Hobbit "brand" prior to the Jackson films- yes, even as a purely commercial property.

[Zigûr]

What I'm saying is, it certainly seems that Zaentz Co did little that would have contributed to the "fame and goodwill" of the Lord of the Rings and Hobbit "brand" prior to the Jackson films- yes, even as a purely commercial property.
This is my view as well. Surely the Bakshi cartoon and some licensed games did not account for the majority of "Tolkien awareness" during the period prior to the release of the New Line films. Indeed it would seem to me that beyond the existing enduring popularity of The Hobbit and The Lord of the Rings it would have been Christopher Tolkien's publication of material such as The Silmarillion, Unfinished Tales and The History of Middle-earth series which would have contributed the most to continued awareness prior to the New Line films, which would put things more in the domain of the Estate over the majority of those "four decades".

[Nerwen]

And again- as for the general contention that film/TV fandom comes first- well, there is a reason Hollywood does so darned much of this book-to-film stuff, Morsul. As I said, a book without a significant existing audience and/or reputation rarely makes it to the screen in the first place.

[Inziladun]

If I needed another factor to make me shy away from the movies, and the cynically crass marketing gimmickry that follows them like flies to a dunghill, I now have it.

[Boromir88]

I think we're losing sight that the lawsuit isn't about the claim "we're the reason the Lord of the Rings is a popular brand over the past 4 decades."

Zaent Co.'s countersuit is they are not in breach of contract by putting LOTR and Hobbit characters on gambling machines, and the Estate already agreed to allow this type of merchandising. The "over 4 decades" seems like one of those ridiculous, blustery statements you get from spokespersons and lawyers.

[Inziladun]

The "over 4 decades" seems like one of those ridiculous, blustery statements you get from spokespersons and lawyers.

Not that they care in the slightest what I think, but language like that isn't exactly going to win me over to their side.

[Morsul the Dark]

And again- as for the general contention that film/TV fandom comes first- well, there is a reason Hollywood does so darned much of this book-to-film stuff, Morsul. As I said, a book without a significant existing audience and/or reputation rarely makes it to the screen in the first place.

Are we playing WW right now? My head hurts the same way....

I'm not disagreeing with you, I'm explaining the defense Zainst is putting together. I again never said they were correct in their assertions.

[Ardent]

They are they're claiming the popularity was maintained through films ec starting with the Bashki films in 78. I didn't say they were right, or that I even agree. I'm just saying That's the case they're trying to build.
...

I don't think their case should be taken seriously either. I remember seeing the Bashki film and it certainly did not inspire me to buy the book.

The only thing they might actually be responsible for is unintelligible anime

.

[William Cloud Hicklin]

What I'm saying is, it certainly seems that Zaentz Co did little that would have contributed to the "fame and goodwill" of the Lord of the Rings and Hobbit "brand" prior to the Jackson films

Or after, either: all Zaentz did was accept a check from the Weinstein brothers for the privilege of making the movies (which the Ws subsequently sold along to New Line in exchange for a cut, ultimately making themselves a pile). ZaentzCo contributed pretty much zip-point-zilch, not even Miramax' sunk pre-production costs.

The notion that the Estate and the Tolkien name somehow benefited from "good will" generated by bobbleheads and Burger King cups is beyond risible.

[Galadriel55]

Seriously? :rolleyes: Can't they live a few months without suing each other? :rolleyes:

[Inziladun]

Seriously? :rolleyes: Can't they live a few months without suing each other? :rolleyes:

Let us not forget we're talking about the man who sued John Fogerty of Creedence Clearwater Revival for plagiarizing himself (http://en.wikipedia.org/wiki/Fogerty_v._Fantasy) (and lost). Nice fellow. :rolleyes:

[Nerwen]

Are we playing WW right now? My head hurts the same way....

I'm not disagreeing with you, I'm explaining the defense Zainst is putting together. I again never said they were correct in their assertions.
Well, hey, I never said you did either. But you were saying it was a case that would be hard to beat- so I'm explaining why I don't think that's so. OK?

[Morsul the Dark]

Well, hey, I never said you did either. But you were saying it was a case that would be hard to beat- so I'm explaining why I don't think that's so. OK?

Ah I see where the disagreement is now. I apologize.

The reason I think it'll be hard to beat isn't because its a good defense or even remotely true, however we live in a time where books tend to be pushed aside for cinema and television I sadly think it isn't a far stretch to convince 12 couch potatoes to side with the film company.

[William Cloud Hicklin]

Hard to beat?

Since Zaentz has now put "the fame and good will developed in these marks, products, goods, and services" in factual contention, it hangs a curveball out over the plate for the TE's lawyers to bring on a whole parade of tacky, vulgar, tasteless crap ZaentzCo has willingly licensed over the years (and contrast it with the licensing proposals Christopher has rejected for being tacky, vulgar and tasteless.)

[Bêthberry]

I wish I could say I agreed with you.... But people don't buy toys for books...

I'm reminded of that scene in Spaceballs,
http://www.youtube.com/watch?v=oNZove4OTtI

Yet they do form literary societies to perpetuate the popularity of books. And many of the societies do have online shops and events where members may buy paraphernalia associated with their author and even engage in a bit of masquerade.

There are Bronte and Austen dolls, based on the books and not the movies. And to name just some of the societies--the Tolkien Society (tee shirts and mugs if you please), Bronte Society (mugs, calendars, cards, ties--yes, that actually are printed with "BS" on them), Austen Society (mugs, jewellery, calendars, cards, thimbles, chocolates), Browning Society, Baker Street Irregulars (all kinds of Sherlockiana), The Dickens Fellowship (what hath Tiny Tim wrought for our Christmases!), H G Wells Society, Lewis Carroll Society of North America, The Ghost Story Society, Robert Louis Stevenson Club (pubs, bars, games (board and video)* and even a Mr. Hyde doll). etc. etc. etc.

Some of these groups produce just journals; others hold annual events with speakers, performances musical and dramatical, walks and talks, costume events. They may not engage with the likes of Burger King to produce stuff, and they may not number in the millions, but most are devoted to their authors and they do represent a kind of literary fandom.

EDIT: *To be correct, the RLS Club does not sell these items but rather lists them under the category of "Unclassified Artefacts" in "Derivative Works on RLS"

[Nerwen]

Ah I see where the disagreement is now. I apologize.

The reason I think it'll be hard to beat isn't because its a good defense or even remotely true, however we live in a time where books tend to be pushed aside for cinema and television I sadly think it isn't a far stretch to convince 12 couch potatoes to side with the film company.
But... Morsul, they're not just going to poll a bunch of people on what they like best, books or films, then award the thing accordingly. I'm sorry if that comes across as sarcastic, but, well I don't know what to say– honestly, it is really is sounding like that's how you think it works.

Yet they do form literary societies to perpetuate the popularity of books. And many of the societies do have online shops and events where members may buy paraphernalia associated with their author and even engage in a bit of masquerade.
Plus , there's plenty of what I would frankly term junk fiction that has a huge readership. Regrettably so, perhaps– but I think it can be pretty easily proven that many, many millions of people do read books. Often pretty bad books, in my opinion, but that's not the point.

[Morsul the Dark]

But... Morsul, they're not just going to poll a bunch of people on what they like best, books or films, then award the thing accordingly. I'm sorry if that comes across as sarcastic, but, well I don't know what to say– honestly, it is really is sounding like that's how you think it works.


Plus , there's plenty of what I would frankly term junk fiction that has a huge readership. Regrettably so, perhaps– but I think it can be pretty easily proven that many, many millions of people do read books. Often pretty bad books, in my opinion, but that's not the point.

What I'm saying is it comes down to the jury. If they get a very book friendly crowd the estate will do better if they get a bunch of tv watchers who only read texcts then Zainst has the advantage. Juries are people and people are usually swayed by their preferences. Juries are sort of like polling people, especially in a case of pretty subjective stuff. Are the movies famous because of the books or vice versa of course at the start the movies were made because of the books but after it's a bit more grey....

[Bêthberry]

Do cases like this ever reach the jury stage? Aren't they most often negotiated before trial begins?

That's certainly what happened when the Estate sued an author in the US for using Tolkien as an historical character in his novel. It's jockeying for position rather than raising a legitimate trial.

[Morthoron]

Hard to beat?

Since Zaentz has now put "the fame and good will developed in these marks, products, goods, and services" in factual contention, it hangs a curveball out over the plate for the TE's lawyers to bring on a whole parade of tacky, vulgar, tasteless crap ZaentzCo has willingly licensed over the years (and contrast it with the licensing proposals Christopher has rejected for being tacky, vulgar and tasteless.)

*fingers his Lurtz figurine*

Why, William, whatever are you talking about?

*takes a sip from his Burger King Gandalf glass*

Are you implying that Zaentz-approved merchandise is tacky?

*pulls at the snug neck of his Gollum t-shirt, newly removed from packaging*

Well, I'd like to debate this more fully, but I have very little time...

*looks irritably at his Map-of-Middle-earth wrist watch*

...you see, I am just finishing up lunch...

*picks the last of his sandwich off his Legolas-embossed dinner plate*

...and I must return to work.

*pulls his Lord of the Rings key chain out of his pocket*

I will continue this discussion...

*Glares at his "The Two Towers: Extended Edition" calendar*

...Thursday next.

[Bêthberry]

I will continue this discussion...

*Glares at his "The Two Towers: Extended Edition" calendar*

...Thursday next.

Funny, I could almost swear that should be "Thursday Next", since we do seem to have a parallel universe where certain Tolkien goods are dodgy.

[Nerwen]

What I'm saying is it comes down to the jury. If they get a very book friendly crowd the estate will do better if they get a bunch of tv watchers who only read texcts then Zainst has the advantage.
Two points, Morsul. Firstly, as Beth points out, these kind of things mostly don't get that far. Secondly, well, you seem to have a very odd idea of how a trial by jury works, anyway. I mean, you seem to think that what happens in court is basically irrelevant, and all that matters is what side the jurors "liked" best at the outset.

(And even on those terms, it's not as if Zaentz actually made the films...)

[Morsul the Dark]

Two points, Morsul. Firstly, as Beth points out, these kind of things mostly don't get that far. Secondly, well, you seem to have a very odd idea of how a trial by jury works, anyway. I mean, you seem to think that what happens in court is basically irrelevant, and all that matters is what side the jurors "liked" best at the outset.

(And even on those terms, it's not as if Zaentz actually made the films...)

Have you seen the court system? It's ALL about emotion. What happens in the court has to be outstanding to reverse someone's immediate choice I'd bet about 75-80% of jurors know within the first 5 minutes how they'll vote.

That may not be how the system is Supposed to work but as with anything on paper its perfect then once people arew involved it comes apart.

I'd like to point out I don't have much faith in juries...

[Boromir88]

Two points, Morsul. Firstly, as Beth points out, these kind of things mostly don't get that far. Secondly, well, you seem to have a very odd idea of how a trial by jury works, anyway. I mean, you seem to think that what happens in court is basically irrelevant, and all that matters is what side the jurors "liked" best at the outset.

(And even on those terms, it's not as if Zaentz actually made the films...)

It would still seem fairly difficult to argue the Estate's case.

The gambling machines could go either way. The Tolkien Estate is trying to draw the line that gambling machines should not be allowed because it's merchandise that damages Tolkien and thus violates contractual agreements. Zaentz seems to believe since the copyright doesn't specifically exclude gambling machines and therefor it's fair game to continue slapping Tolkien characters and the LOTR brand on anything and everything.

I wish it was as simple as stopping the trash and junk the Zaentz co. licenses and pushes out to sell, but unfortunately passion and justice tends to give way to procedure and legal jargon. Both sides surely have a team of expensive and talented lawyers at their disposal.

I would guess the major decision is going to be over the gambling machines. But who can tell how that will turn out when the Estate wants to block the 'brand' from going onto the machines, and Zaentz is saying "well contractually it doesn't exclude gambling machines, therefor we should just be allowed to sell it." If there was already a separate agreement over permissable video games in '96, then I don't see what the TE could do about that part of the lawsuit.

[Recoveryanonymous]

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

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

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

http://www.moddb.com/mods/merp-middle-earth-roleplaying-project/images/rohan-weapons1#imagebox

Merp will also have its own original music and voice too. Here's a track.
http://www.moddb.com/mods/merp-middle-earth-roleplaying-project/videos/edoras-walkaround-3#imagebox

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

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


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

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

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

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

[Zigûr]

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

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

[Recoveryanonymous]

That being said, and judging from the images I've seen, doesn't the mod largely use designs from the films? Their summary says:
"We use the films for inspiration, but base our visual design mainly on the descriptions in the books and the works of Ted Nasmith and John Howe."
but judging by the Rohan buildings, Treebeard etc it's still largely reminiscent of the films. I can see why it might be treading on a few toes in that regard.
I really don't think so. Warner Brothers wouldn't even allow a private release for just the developers.
http://www.pcgamer.com/2012/09/06/middle-earth-roleplaying-project-mod-for-skyrim-petitions-wb-to-revoke-cease-and-desist/

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

[Zigûr]

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

[Recoveryanonymous]

I notice however than in addition to having the license to produce film-related material WB also owns Turbine, Inc. which makes the specifically book-related The Lord of the Rings Online. Nonetheless, I would be curious as to whether there was any precedent or evidence for mods causing the kind of market "confusion" among consumers about which WB claim to be concerned. Where is the cease-and-desist against, say, The Third Age: Total War?
Frankly I despair of this 'Melkorism' among corporations, destroying things simply because they themselves did not create them and can't profit from them: "all gold (in Middle-earth) seems to have had a specially 'evil' trend"... (Morgoth's Ring)
It's probably not easy to speculate about all the variables that could effect the market. But considering the fact that Merp is a mod for an existing game, it isn't too much of a leap to assume that it wouldn't affect a large portion of people, at least not at first. Take the player-base for Skyrim, divide away the console users who can't play mods and all those who don't use mods anyways. The result can't be that much could it? If Merp were completed, I think word of mouth would make it well known, but that's years away at least. Who knows how many people would be willing to go out and buy a strong PC just to play Merp? The process of acquiring a mod tells me no one would confuse it for a game you'd have to purchase in a store. Your right about the "Melkorism" amongst these guys. It just becomes ever more transparent.

[Recoveryanonymous]

I thought you guys might be interested in this mini update about the case. Food for thought.
http://www.bizjournals.com/losangeles/news/2013/03/15/warner-bros-countersues-tolkien.html

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

My respect for the Tolkien Estate is further reinforced.

[Inziladun]

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

[Recoveryanonymous]

The Tolkien Estate tries to get Warner's claim dismissed.
http://movies.yahoo.com/news/tolkien-estate-challenges-warner-bros-patently-absurd-hobbit-050000711.html
"On Thursday, the estate asked a judge to dismiss Warners' move, saying the studio is attempting to dress up an inappropriate claim for malicious prosecution."

[Kuruharan]

My respect for the Tolkien Estate is further reinforced.

I second this motion.

[Elemmakil]

This is after all Saul Zaentz we're talking about- underhanded and sleazy even by Hollywood's non-standards.

Quite an understatement. On Zaentz's Wiki page, mention is made of him taking legal action against businesses in the UK that use the name "Hobbit" in any fashion. This is similar to the action taken against Shire Post Mint over the excellent LoTR/Hobbit/Silm. coins they produced several years back. Zaentz really is a bully, and I wish he would reunite with his master Morgoth, sooner rather than later...

[Inziladun]

Quite an understatement. On Zaentz's Wiki page, mention is made of him taking legal action against businesses in the UK that use the name "Hobbit" in any fashion. This is similar to the action taken against Shire Post Mint over the excellent LoTR/Hobbit/Silm. coins they produced several years back. Zaentz really is a bully, and I wish he would reunite with his master Morgoth, sooner rather than later...

I feel like a broken record, but that sort of thing is exactly what I feared when all the movie-hype began flaring up prior to PJ's films. I never wanted Tolkien's works to be subjected to such indignities; modern marketing treats all artistic works equally as tools for profit. I don't particularly blame Zaentz, since I am certain whatever corporation with the movie rights would act much the same. It really is a shame though to see beloved books treasured less for intrinsic literary merit than for commercial potential.

[Mithalwen]

It seems unbelievable that they think they have rights to things that didn't exist at the time of the contract..

[PrinceOfTheHalflings]

I feel like a broken record, but that sort of thing is exactly what I feared when all the movie-hype began flaring up prior to PJ's films. I never wanted Tolkien's works to be subjected to such indignities; modern marketing treats all artistic works equally as tools for profit. I don't particularly blame Zaentz, since I am certain whatever corporation with the movie rights would act much the same. It really is a shame though to see beloved books treasured less for intrinsic literary merit than for commercial potential.

Zaentz has owned the movie rights since c. 1976 - and certainly sued various people long before PJ's films were a twinkle in PJ's eye.

[Morthoron]

Zaentz has owned the movie rights since c. 1976 - and certainly sued various people long before PJ's films were a twinkle in PJ's eye.

Yes, if you recall years ago Zaentz sued Gary Gygax and Dungeons & Dragons over its use of the word "hobbit". D&D had to change the name of the game characters to "halflings".

It's also notable that Zaentz's music company managed to purloin all the publishing rights of Creedence Clearwater Revival. Zaentz sued John Fogerty (the leader of CCR and writer of all its hit songs) when Fogerty released a solo album. Zaentz in effect sued Fogerty for plagiarizing himself, which led Fogerty to write a song with the lyrics "Zanz can't dance, but he can steal your money."

Naturally, Zaentz sued Fogerty again for defamation of character. :rolleyes:

[William Cloud Hicklin]

And what's really pathetic is the fact that Zaentz has made many times as much money off the movies as Tolkien's family, without having to lift a finger.


---------

Zaentz in effect sued Fogerty for plagiarizing himself

It was worse than that: Zaentz sued Fogerty for sounding like himself, on the grounds that Zaentz owned the IP rights to CCR's distinctive sound.

[Zigûr]

In an update, the Estate tried to have the counter-claims dismissed, but this was denied, so both the suit and counter-suit are still going ahead:

http://www.deadline.com/2013/07/warner-bros-scores-legal-win-in-lord-of-the-rings-battle-with-tolkien-estate/

Frankly I could never support the filmmakers in this situation. The Tolkien Estate is repeatedly accused of greedily resting on the spoils of the Professor's achievements but personally I believe they have every right to quibble in cases like this where it's not black and white as to where the rights lie.

I assume this is why there was never a video game released for "An Unexpected Journey"?

It may or may not be pretense but if the Estate is genuinely concerned about the legacy of Professor Tolkien's work I think their concern is understandable. We are always told that "the books are still there" but when marketing, merchandise and spin have obliterated the majority of discourse on the subject I can't complain if WB and Zaentz are taken to task. On Facebook the other day people who had Liked the "The Fellowship of the Ring" page (for the book, not the film) were requested for a favourite quote. Half must have been from the film. There may have been a time before the films when Tolkien enthusiasm had receded and our conversations might be more isolated, but surely that is preferable to having it drowned beneath a sea of fatuous nonsense.

Elrond told the Council "It would be better if the Three had never been." I believe the same of the films. It is hard to know what to do in hindsight. Professor Tolkien once wrote that "the spirit of wickedness in high places is now so powerful and so many-headed in its incarnations that there seems nothing more to do than personally to refuse to worship any of the hydras' heads..." (Letter 312)

It may seem pointless for me to come here and preach to the choir, as it were, and I realise that this is not really meaningful news on a front regarding lawsuits which don't really mean anything insofar as the texts themselves are concerned, but I wouldn't be here if Professor Tolkien's work wasn't so important to me, and the symptoms of its occlusion are correspondingly troubling. If these stories are at risk of becoming palimpsests in culture, rewritten in the public consciousness in a way where films and merchandising and lawsuits have largely obscured the true and valuable matter, then I feel like there must be some who take responsibility for keeping the flame alive.

Any remarks of this nature may similarly seem like an overreaction, and I don't lay the blame at the feet of individuals in Hollywood or elsewhere, because it's symptomatic of the wider (neoliberal?) disease which afflicts Western Culture. Nonetheless I feel the need to muster my courage and take Gandalf as an example (as Professor Tolkien referenced in the same letter): "it is not for us to choose the times into which we are born, but to do what we could to repair them". Professor Tolkien places these paraphrased remarks before discussing his frustration with the heads of the hydra, but perhaps in the spirit of optimism and determination this is rather the sentiment upon which to focus.

[Inziladun]

My view on the lawsuits is no doubt colored by my antagonism toward the films, but I back the Estate.

On Facebook the other day people who had Liked the "The Fellowship of the Ring" page (for the book, not the film) were requested for a favourite quote. Half must have been from the film. There may have been a time before the films when Tolkien enthusiasm had receded and our conversations might be more isolated, but surely that is preferable to having it drowned beneath a sea of fatuous nonsense.

You know, the prospect of more people getting to know the books through exposure to the movies was the one bright spot I saw in their making. I know there have been those who have come to know and love the books thanks to PJ and Co., but for one thing, it shouldn't have to be that way, and for another, I think those people are in the minority.

Elrond told the Council "It would be better if the Three had never been." I believe the same of the films. It is hard to know what to do in hindsight. Professor Tolkien once wrote that "the spirit of wickedness in high places is now so powerful and so many-headed in its incarnations that there seems nothing more to do than personally to refuse to worship any of the hydras' heads..." (Letter 312)

I said the same many years ago (http://forum.barrowdowns.com/showpost.php?p=271530&postcount=21), and was taken to task for my "extremism". ;) I simply didn't want to see Tolkien's work brought to the level of the common Hollywood blockbuster, with the ever-present merchandising, marketing, and nearly inevitable (as we've seen) court proceedings. I wish PJ had found another pet project to bring to "life".

[Pervinca Took]

Personally, I wish Ang Lee had made the films instead of Jackson. Though wishing be vain, as I am well aware.

I would rather have had beautifully made and psychologically plausible films than blockbusters. And I think I'd rather people discovered the Professor's work through a decent adaptation.

I was very much in favour of the films during the anticipation stages. Couldn't wait for them. Overall, though, I found them a pretty shoddy result after all the hype.

[Nerwen]

It may or may not be pretense but if the Estate is genuinely concerned about the legacy of Professor Tolkien's work I think their concern is understandable. We are always told that "the books are still there" but when marketing, merchandise and spin have obliterated the majority of discourse on the subject I can't complain if WB and Zaentz are taken to task. On Facebook the other day people who had Liked the "The Fellowship of the Ring" page (for the book, not the film) were requested for a favourite quote. Half must have been from the film. There may have been a time before the films when Tolkien enthusiasm had receded and our conversations might be more isolated, but surely that is preferable to having it drowned beneath a sea of fatuous nonsense.

Elrond told the Council "It would be better if the Three had never been." I believe the same of the films.
If you mean the "Lord of the Rings" films only, I can't really agree, as with all their faults I think they're pretty decent films of their kind. Still- the main counter-argument to what you've said here is usually something along the lines of "hey, publicity, wider audience, yay" and I think there are some real problems with that- I mean, what couldn't you justify that way?

[malickfan]

I know there have been those who have come to know and love the books thanks to PJ and Co., but for one thing, it shouldn't have to be that way, and for another, I think those people are in the minority.

-I'm in that minority Inziladun-I was introduced to Tolkien through the (excellent... at least in cinematic terms) PJ lotr trilogy (which I still love) and have gone on to read and own LOTR, The Hobbit, The Sil, COH, The HOME, Letters, The HOTH, Uninished Tales, Tales from the Perilous realm, and more than a few ancillary Works such as The Atlas and Road to Middle Earth, its pretty safe to say Jackson turned me into a Tolkien Fan...but in the years since (especially since viewing that overlong, overblownrewrite of The Hobbit...Part One: An Unnessary Missfire) I've gradually come to view the films, and the related marketing with a less favourable eye, I'm definitely with the Estate on this one, and more and more do I feel Christopher's Comments in Le Monde are becoming a sad reality.

That said, I still think the LOTR trilogy are great films, and I can't fault them for introducing me to Tolkien (the Hobbit on the other hand...), but all the same I sincerely hope The Tolkien Estate never changes its posistion on marketing and future adaptations, the day when you can get your Feanor action figures free with a Big Mac is a day I do not ant to see.

[Inziladun]

I'm in that minority Inziladun-I was introduced to Tolkien through the (excellent... at least in cinematic terms) PJ lotr trilogy (which I still love) and have gone on to read and own LOTR, The Hobbit, The Sil, COH, The HOME, Letters, The HOTH, Uninished Tales, Tales from the Perilous realm, and more than a few ancillary Works such as The Atlas and Road to Middle Earth, its pretty safe to say Jackson turned me into a Tolkien Fan...but in the years since (especially since viewing that overlong, overblownrewrite of The Hobbit...Part One: An Unnessary Missfire) I've gradually come to view the films, and the related marketing with a less favourable eye, I'm definitely with the Estate on this one, and more and more do I feel Christopher's Comments in Le Monde are becoming a sad reality.

I'm always gratified to see stories like yours.
Sadly though, what I mostly see is a pop-culture bent on the quick, easy entertainment that a flashy film provides, without much regard for anything that requires as much time and imagination as books. And without getting the real tale from them, what the mass audience gets is watered down and designed to sell. It seems there's a common pattern with today's movie industry, so much so that to my eyes there's little to distinguish one film from another. It's all about the money. :(

[malickfan]

Yes, I can see what you mean, and even though I would (probably) have never discovered Tolkien if it weren't for the films...I'm beginning to think his works have become too popular for their own good. I also post on a few other forums, and in recent months I've become annoyed by the trend of new members posting again and again about how awesome the films are, and how boring the books look in comparison (books they refuse to pick up because they assume the film cuts out all the boring bits and adds much needed action and toilet humour...)

Look on the bright side, there is no way The Tolkien Estate will sell the rights to The Silmarillion-that's one car crash we are spared from seeing.

[Zigûr]

What is frustrating is that outside of places like this it is difficult, if not impossible, to hold any discourse about Professor Tolkien's work without the films rearing their head. I simply don't understand how these adaptations, just because they were popular, have somehow become grafted onto the source material as if they are all fundamentally the same thing, as if Professor Tolkien and Peter Jackson are somehow collaborators in a combined literary and cinematic vision, which is something Zaentz's countersuit would like to establish as well.

It really seems to happen a lot with "geek culture", though, doesn't it? Or maybe I should say "genre culture," or really anything that seems to attract the frothing hysteria of bored, comfortable Western people. Everything becomes indistinguishable: the source material, the adaptations, any merchandise, and their cultural presence in the shape of references, memes, catchphrases etc. It seems to be the same with things like Harry Potter or, as we've discussed elsewhere, "A Song of Ice and Fire", or comic-book superheroes. Sherlock Holmes might be another example. I find this to be a shame because it treats all of these things as one entity, so we can't talk about one without the other, at least in mainstream conversation. At least we have places like this as an alternative.

Imagine if we treated "canonical literature" this way, like if you mentioned Ninteen Eighty-Four everyone started thinking about John Hurt, or if you tried to talk about Great Expectations people started quoting lines from the various adaptations that weren't in the book. It'd be absurd, but that doesn't happen because adaptations of those kinds of texts haven't become somehow inextricably merged with the source material for whatever reason. There once was a time when I was very hostile towards the literary establishment for what I perceived as its snobbery, but these days I am as frustrated, if not more, with the cultural milieu surrounding 'popular fiction' or 'genre fiction' or however it should be described. It seems as if the overwhelming majority of enthusiasts couldn't care less if these texts are exploited into franchises which ultimately only serve a corporate interest, happily devouring the repurposed material which is chewed up and regurgitated by Hollywood and the like.

Again, I apologise if this comes across as pretentious or arrogant. There are just times when I feel extremely isolated and alien among a culture which seems to have completely different values to my own.

[Inziladun]

What is frustrating is that outside of places like this it is difficult, if not impossible, to hold any discourse about Professor Tolkien's work without the films rearing their head.

I haven't been poking around any other forums in many years, so I'll have to take your word about the prevailing sentiments there. I wonder if the distinction of the Downs is due to the fact that it was begun a couple of years before the movies were released. I do (grudgingly) credit the movies though, for apparently drawing people to this place in the buildup to the films' release. Many seem to have been only interested in the films, but some have been thoughtful, well spoken individuals who have brought a lot of valuable contributions here over the years.

Everything becomes indistinguishable: the source material, the adaptations, any merchandise, and their cultural presence in the shape of references, memes, catchphrases etc. It seems to be the same with things like Harry Potter or, as we've discussed elsewhere, "A Song of Ice and Fire", or comic-book superheroes. Sherlock Holmes might be another example. I find this to be a shame because it treats all of these things as one entity, so we can't talk about one without the other, at least in mainstream conversation. At least we have places like this as an alternative.

I think the commercialization has become inevitable, as the value of a literary work is apparently only measured in terms of monetary potential. That naturally leads to a disregard for any efforts to preserve the integrity of the source material, and the cheerful addition of ideas and scenes not conceived in the author's wildest dreams. Books written in today's times are more susceptible, I would think, but Tolkien and A.C. Doyle are certainly not immune. The mass-media product is much more attractive to this Twitter-addicted, instant gratification society, so again it's not a stretch to see that a movie would garner more attention than the book it's based upon.

Again, I apologise if this comes across as pretentious or arrogant. There are just times when I feel extremely isolated and alien among a culture which seems to have completely different values to my own.

As you said though, there are those who "feel your pain". I still haven't seen the Hobbit film myself, and I have no plans to do so. I really don't have any animosity toward PJ, nor do I look down my nose at people who have enjoyed the movies. I just don't think the movies have, or will do anything to enrich my enjoyment of Tolkien's works, so there's no point in me just helping Zaentz and co. line their pockets.

[malickfan]

As you said though, there are those who "feel your pain". I still haven't seen the Hobbit film myself, and I have no plans to do so.QUOTE]

If only I had you're willpower, I will defintely se the other two hobbit films...but only because I feel like I have to (I'll defintely buy the blu ray-I'm a sucker for behind the scenes stuff, and I enjoyed the video blogs more than AUJ itself)