Film Rights to First & Second Age

[William Cloud Hicklin]

Procedural advantages are not the same as asserting that copyright doesn't exist pre-registration!

Perhaps you're confusing property with the value thereof. A copyright is property. Its monetary value may be enhanced by many things, including registration. That doesn't in any way alter the basic fact of ownership.

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You seem to be making a similar mistake in your 'diminished value' argument. Again, you've bypassed my essential point: As holder of the primary copyright, the Tolkien Estate is under *no* obligation to take cognizance of any 'dimunition of value' in derivative rights. Zaentz owns exactly what he always did. If it has fallen in value: tough.

Why therefore should the Estate 'settle' or 'negotiate' anything. They owe Zaentz *nothing*. He got what he paid for. Its subsequent vicissitudess in market value are his problem, not the Estate's.

[Sauron the White]

WCH - two things: First, if you go back and read my statement (and I did reproduce it for you) I said

There is a huge legal difference between a copyright and a legally registered copyright which attaches protections of law and introduces certain legal remedies and penalties. Huge difference.

Please note that I used the word "copyright" and did not deny it. I also differentiated between the type of copyright that you keep referring to and a legally registered copyright. I do believe that any fair minded person can read the quote from the Copyright site that Nerwen provided and see that there are indeed definite differences that are beyond procedural. In fact, they also are in the amount of monetary damages one can collect.

You seem to be making a similar mistake in your 'diminished value' argument. Again, you've bypassed my essential point: As holder of the primary copyright, the Tolkien Estate is under *no* obligation to take cognizance of any 'dimunition of value' in derivative rights. Zaentz owns exactly what he always did. If it has fallen in value: tough.

Why therefore should the Estate 'settle' or 'negotiate' anything. They owe Zaentz *nothing*. He got what he paid for. Its subsequent vicissitudess in market value are his problem, not the Estate's.

The owner of the Silmarillion events as told in the Appendicies sold those film rights to UA who then sold them to Zaentz. Then, the designated and rightful heirs of JRRT, CT and the Estate, caused to be published THE SILMARILLION some eight years later.

You refer to these "subsequent vicissitudess in market value" like they fell from outer space or were created by some other force like a third or third-millionith party. That is not the case. The reason for the loss of value was the publishing of THE SILMARILLION by CT using some of the same material that had already been sold as film rights.

Yes, CT had a right to publish that book. But it had the unintended (I am giving the benefit of the doubt here) consequence of causing the rightful films rights holders to now be holding a property one Tolkien sold them only to have another Tolkien put out a similar property using much of the same content.

How can you not admit this? Are you of the impression that CT or the Estate can do no wrong and regardless of what they do its never their fault?

Were it not for several million copies of THE SIL in existence for the last three decades, the lawful rights holders could make a movie including that laundry list that both you and I agree are withing their rights to include. But now, if they fill in the blanks or connect the dots between those events with material of their own invention, they risk seriously damaging their product in the eyes of the public because "its not the real SILMARALLION", "you just made all this stuff up to make money", or "you are urinating upon the real SILMARALLION". Before the publication of that book, there was no SILMARALLION to compare such a movie effort to. None.

Or they can take some chances, and fill in the blanks and connect the event dots with actual things, characters, dialogue and other material taken directly from the published SIL. They then risk a very damaging lawsuit.

Again, they are damned if they do and damned if they do not. And who put them into this position? They were sold rights by one Tolkien and had those rights diminished by another regardless of the intent and absence of malice.

So now they own something which they paid for and cannot exercise their rights without risking either public ridicule and rejection of their film, or, a serious lawsuit which could bankrupt them. Talk about your rock and a hard place. They did not put themselves there. The publication of the book length SIL did - intended or unintended - the results are the same.

[William Cloud Hicklin]

So now they own something which they paid for and cannot exercise their rights without risking either public ridicule and rejection of their film, or, a serious lawsuit which could bankrupt them. Talk about your rock and a hard place. They did not put themselves there. The publication of the book length SIL did - intended or unintended - the results are the same.

Again, tough.

Zaentz did not buy the underlying copyright in The Lord of the Rings. He bought the right to make movies. The primary copyright in Middle-earth never changed ownership, and Zaentz has bugger-all room to complain about whatever Tolkien-plus-heirs do. Including 'diminishing his value.'


You asked for the Denzel Washington treat ment. Very well, then.

Copyright is a form of intellectual property. Copyright law is a branch of property law. Now, what is property? Property is any thing, real or personal, tangible or intangible, which one person may possess to the exclusion of all others. Copyright is the right of an author to reproduce his own work, and (most importantly) exclude anyone else from doing so.

Like all property, copyright is alienable: it gan be given, bartered, sold etcetera. It is divisible: one can sell a part of a copyright and retain the rest. With me so far?

If the author sells film rights, he is actually selling a license under which the purchaser has the right to make film adaptations. After selling that small piece, however, the author retains all the remaining copyright. It's still his, to do with as he wants.

That might include writing a sequel or other work related to the first work in such a way that it might be classed as 'derivative' were another person to do so. But of course the author owns his characters, incidents and settings and can do with them whatever he bloody well likes. He *owns* them: the sequel is derivative of the primary copyright, not the alienated film license. If he writes a sequel, then it is a new work, and the owner maintains absolute copyright ownership of that too.

No problems so far?

Now, notice that all of this is concerned strictly with *ownership*- it is, after all, property law. "Value" simply doesn't enter in. Property law is only concerned with who owns what, not what it's worth. If the author writes a sequel, it doesn't matter a fart in a tornado whether it might negatively affect the value of film rights he's already sold. His right is exclusive and unaffected- which is to say that the film-rights buyer of Book 1 has no claim nor restraint on the sequel just because the value of his property might be affected. It doesn't matter. The law only looks to ownership, not value.

Suppose that I own a large tract of land, and you approach me to buy one acre on the corner to build a house. We agree on a price and close the sale. (Assume no restrictive covenants or zoning laws, or verbal undertakings)

A few years later on, I elect to develop the rest of my tract as a combination hog-farm/sewage treatment plant/toxic waste dump. Would your house value be affected? Yep. Down the toilet. Would you have a claim against me? Absolutely none whatsoever. I sold you one acre and one acre you own. End of story.

Now, that's a deliberately extreme example. Let's look at another one. Suppose Hot Young Author writes a bestseller. Studio A negotiates and executes a film deal for it.

Suppose that subsequently, HY Author writes a sequel. Or an unrelated book. Or several. Whatever- but they're all rubbish. The kid is a flash-in-in-the-pan, a one hit wonder. His stock in literary circles takes a dive, he doesn't get invited to the good parties any more, and he's universally now regarded as a talentless hack. Think Barton Fink.

Does Studio A have a claim based on its now-worthless movie rights? Nope. They still own what they bought.

Or let's suppose Studio B buys film rights to the [ghostwritten] autobiography of a star athlete- let's call him, say, ummmm....OJ. After inking the deal, OJ does something damaging to his public image, like, oh I dunno, carving up his ex-wife and her friend with a knife. Public enemy number one. Plug pulled on biopic. Film rights worthless.

Does Studio B have a claim? Nope. They still own what they bought.

[William Cloud Hicklin]

Your use of the word trash I imagine is defined by your own particular tastes and in no way reflect the hundreds of millions of people who bought tickets again and again to see the Jackson films making them some of the most successful and loved films ever made?

You're overlooking those Burger King goblets and 'Lord of the Rings' Monopoly sets and all the other exploitative merchandising dreck that was churned out under licenses from Tolkien Enterprises. Yes, trash. Without regard to the movies.

[Sauron the White]

WCH - even before your previous post, we had disposed of copyright questions.
The link from Nerwen was extremely helpful as were you. Thank you.

I cannot believe you or others cannot see the problem here. In fact, you summarize the situation up in one word ---- TOUGH.

So one Tolkien in charge grants me certain exclusive rights and is paid for them. The check cashes.

Then, years later, another Tolkien comes along with the authority of the first who has now departed from this earth. The second exercises his legal rights in the publishing world but screws up my plans to use part of the rights his father sold me. Part of my investment is now unusuable or could get me into great legal or financial trouble.

Yes, that is indeed T...O....U....G...H.

And who caused it to be so tough? Not the market as you threw out there hoping it would stick like so much pasta to a wall. Not the rising oil cartel prices. Not the changes in public taste. Not the technology. Not a worldwide depression.

What caused it to be so T..O...U...G...H is another Tolkien. Remember him? He is the son of the man who thought he pulled a fast one on me for selling me an unfilmable movie in the first place.

Indeed.

[William Cloud Hicklin]

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

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

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

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

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

[Sauron the White]

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

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

My sincere thanks to Mr. DeNiro.

[William Cloud Hicklin]

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

[Sauron the White]

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

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

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

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

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

[davem]

Anyone who took the time to look into it throughout the '50's & '60's would have known that Tolkien was working on the Silmarillion from the immediate post LotR period & planned to publish it - its mentioned in 'Tolkien & the Critics' - a collection of essays edited by Isaacs & Zimbardo & published in 1968 (p/b 1969) - that he was working on it, & that's not the only source of such information. Right from the appearance of RotK interest was expressed by fans of the book in this other work (read the Letters).

Thus, whether it was UA, or Saul Zaentz, if they didn't take the time to find out that this reference in RotK to 'The Silmarillion' was to an actual work in progress they are entirely at fault. I'm sure, given Tolkien's reasons for selling the film rights to TH & LotR, that if UA had offered to purchase the future film rights to The Sil Tolkien would probably have sold them too.

Whatever, when UA bought the rights to LotR & TH they could have asked about The Sil. They didn't. When Zaentz bought the rights from them he could have asked whether The Sil was likely to appear & made the decision on whether to buy the rights from UA based on that. Caveat emptor.

Now, unless you believe that Tolkien deliberately mislead UA, or UA deliberately mislead Zaentz reegarding the future appearance of The Sil I don't see what your case is.

If we're talking about 'ethics' here, can I ask whether you believe Zaentz has ever consulted the Tolkien family/Estate before he flogged the licence to produce any kind of Tolkien related trash to the highest bidder?

Sorry, but all this talk of 'ethics' is a joke - Zaentz is a businessman who made a very good deal &, while I'm sure he would be happy to play the 'ethics' card to get his mitts on the movie rights to Tolkien's other works that's all it would be - if you honestly think Zaentz would enter into an equal partnership with the Estate, or surrender part of his absolute control over the film rights to them, well, all I can say is I have the deeds to Buckingham Palace which I can let you have cheap....

[Sauron the White]

from davem

Thus, whether it was UA, or Saul Zaentz, if they didn't take the time to find out that this reference in RotK to 'The Silmarillion' was to an actual work in progress they are entirely at fault

That is the most amazing statement I have ever heard from you - and I have heard more than my share. Lets see if I get this right. UA was suppose to look into the future and know that JRRT would someday publish a book that he had been working on for decades and decades and was in little better condition that stacks of unsorted papers and notes? They were suppose to know, that somehow, someway, someday, JRRT or his heirs would undercut their investment by putting out another book with much the same material that they had paid him for? Or, they should have been aware of a rather obscure article turned into a book about the subject and been able to predict the future from that?

Amazing in the extreme.

Sorry, but all this talk of 'ethics' is a joke

It very well could be. A bad joke. But upon who? Put yourself into the position of the film rights holders.

Event #1 - JRRT toys with the idea of being deeply involved with the production of a film based on his book LOTR. However, after several years of various levels of discussion, he makes a decision between "Art or Money" and opts for money. He gets his money and UA gets the film rights to LOTR - cover to cover along with THE HOBBIT. JRRT reportedly then says its okay and is happy to make that deal because the book is unfimlable anyways. He sold somebody something that he believes will never be realized.

Event #2 - Years later, JRRT is dead but he has a legal heir Christopher Tolkien. CT takes all those stacks of unsorted papers that have been hanging around for decades and spends years of hard work on them producing a cohesive narrative that is published into a novel length book. Nearly every single event contained in the beginning of the Appendicies I is included in the book. Events to which his father sold film rights are an important part of his book.

Now the publication of the book makes the use of those film rights regarding the First Age material at best problematic and at worst impossible.

One Tolkien giveth and another Tolkien taketh away - or at least reduce the crap out of the value. And what is anyone willing to do to make the rights holder whole again and restore the value of his purchase? Nothing. Zip. Zero. Zilch.

And now you want me to feel badly about bringing up the issue of ethics?

If we're talking about 'ethics' here, can I ask whether you believe Zaentz has ever consulted the Tolkien family/Estate before he flogged the licence to produce any kind of Tolkien related trash to the highest bidder?

Your use of the word trash I imagine is defined by your own particular tastes and in no way reflect the hundreds of millions of people who bought tickets again and again to see the Jackson films making them some of the most successful and loved films ever made?

Your use of the word trash I imagine is defined by your own particular tastes and in no way reflects the opinion of professional film critics who judged each of the three Jackson films some of the better films of each year.

Your use of the word trash I imagine is defined by your own particular tastes and in no way reflects the opinion of industry professionals who gave many of their highest awards of excellence to these films?

I just want to be sure what standards you are employing here.