Film Rights to First & Second Age

[William Cloud Hicklin]

Sauron, do you actually read my posts, or do you merely skim them and fly off half-cocked?



To quote the Copyright Act,

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, *motion picture version*, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted....The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

You talk as if Zaentz 'owns' the Appendices to the Lord of the Rings. He does not. He owns a license to make motion pictures based on The Lord of the Rings. That is a derivative right, which implies no right whatsoever in the underlying original work.

You might try to assert that (all within the primary copyrights of the author and his heirs) that the 1977 Silmarillion is somehow a 'derivative' of the Synopsis in the Appendices. But 1) this is not so; the Synopsis is an abridgemant or 'derivative' of the pre-existing Silmarillion, not the other way around; and 2) the question is irrelevant, because you are talking about the primary copyright in the written works, which Tolkien and his heirs have always owned, and upon which Zaentz has no claim at all.

Once and for all: copyright is *not* created by publication nor registration. I appreciate that you did some research last night: but give me credit for havin' done bin to lawyer school and everthin', and I might just possibly have learned more about the topic than "anything [you] have ever read or understood."

Here are relevant excerpts from the Act:

On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and came within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title

A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work.

and, reinforcing that copyright does not come into being dependent upon registration:

(a) REGISTRATION PERMISSIVE.—At any time during the subsistence of copyright in any published or unpublished work, the owner of copyright or of any exclusive right in the work may obtain registration of the copyright claim by delivering to the Copyright Office the deposit specified by this section...

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I should like to reiterate one of the above cites in a slightly different context:

....and where the work has been prepared in different versions, each version constitutes a separate work.

Got that? Each successive version Tolkien (or Christopher) made of the Elder Days material is a separate work. Zaentz owns film rights to only one of those separate works- the one-paragraph precis in the Appendices. The Silmarillion, from the Lost Tales to the 1977 text, comprises several separate works each and every one of which is completely free and clear of any claim by Zaentz, except that LR synposis.

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You try to distinguish my stock-market example because apparently everybody knows stocks go up and down in value. Guess what? So do film properties. UA paid a quarter-million for the LR film rights, and unloaded them eight years later for twenty thousand: they took a bath. No asset is ever purchased with an implied warranty of retaining value. It's called 'risk'.

Your counterexample regarding a novel-length expansion of a short story: "Would not the appearance of a far more detailed book length version compound and greatly impact my efforts to use the rights I have already purchased from you?"

Yes, it would. Tough cookies.

Your purchase of derivative film rights places no restriction or limitation on the holder of the underlying primary copyright in any way, shape or form.

There might, hypothetically, be some sort of colliding interests *if* the film rights to The Silmarillion were ever to be sold. But on that day I reckon most of us will be far too busy keeping winged hogs from crashing through our upstairs windows to worry about it.

And I'm not especially convinced that Zaentz would have much of a claim even then, since courts will apply the contract-law concept of 'the intent of the parties', and might very well conclude that what UA intended to buy and thus did buy was the story The Lord of the Rings, not an ancillary sketch of an unpublished work in which nobody, certainly not UA, had any interest in at the time.

And, again, the '77 text is a separate work, with a separate primary copyright, which Zaentz' derivative license cannot affect, limit nor constrain in any way. Could Orson Scott Card have sold the film rights to his short story 'Ender's Game' to Studio A, and then sold the film rights to the novel 'Ender's Game' to Studio B? Quite possibly. Were Beethoven subject to modern copyright law, I see no problem with him selling publishing rights to 'The Creatures of Prometheus' to Breitkopf und Haertel, and then selling pub rights to the 3rd Symphony to Schirmer, notwithstanding the fact that the finales of the two works are based on the identical theme.