The New(ish) Tolkien Estate Copyright FAQ - The Barrow-Downs Discussion Forum

Inziladun · 06-13-2022, 04:31 PM

Quote:

Originally Posted by Galadriel55

At second glance, it comes across as protecting their income more so than Tolkien's legacy.

I think that's certainly the real point. How could they, on one hand, allow Amazon and others with deep pockets to pretty much write their own Tolkien-based (nominally, at least) fiction, and act threatened by someone like you or I making a tune to Sam's Troll Song, or transcribing a piece of current music into Quenya?

Quote:

Originally Posted by Galadriel55

I used to see the Estate as a bit of a Treebeard - perhaps a little old-fashioned and slow to react, but earnestly trying to protect the "paper forest". But this makes it sound like it's turned into a Sackville-Baggins.

I see Christopher as the last bastion guarding his father's legacy. Times have irrevocably changed.

Thinlómien · 06-14-2022, 09:06 AM

Very much agreeing with all of you. It is very ironic they're taking such a strict stand while letting Amazon run rampant with their rather liberal interpretation (to put it nicely) with the Estate's blessing. It does come across as greedy money grubbing, and it is not very flattering, as I said, as it's the younger generation further removed from the Professor himself in charge of things now. They seem more preoccupied with securing the cash flow realted to the Tolkien name than with preserving his artistic and intellectual legacy.

Thank you, Hui, for bringing in the legal point of view. It is at least a little comforting to know this policy looks unlikely to succeed in the court. Which makes it seem very amateurishly written, by the way, and all the more eyebrow raising for that reason...

***Mithadan*** · 06-14-2022, 02:14 PM

I cannot claim any specific familiarity with British or international copyright or trademark law. That said, intellectual property laws generally are intended to protect against a few things. First, one should not be allowed to profit or benefit from the use of another's protected materials. This extends to using protected material both directly (for example, the publication of a sequel to LoTR) and indirectly (by using protected material in a manner that would lead the public to believe that a product is affiliated or sanctioned by the owner of the trademark or copyright). Another protection is to avoid product confusion, such as publication of material that would lead the public to believe that it is related to protected material. In addition, the right holder is protected from diminution in the value of the protected material due to infringement. What remedy may be available depends, in part, on whether the infringement is intentional, which could result in an award of damages, or inadvertent, which might still entitle the owner to an injunction. There are likely gradations in between.

If the owner does not "protect" its rights, by suing for infringement for example, the owner may lose some of its rights. So it is not surprising that the Estate publishes a list of what it frowns upon, whether or not the rights would be enforced by a court. Nor is it surprising that the Estate has, in the past, enforced its rights.

The idea is that Tolkien worked hard on his creation. It has a value as an asset. The trademarks and copyrights may be the only real marketable asset that the Estate has. Anyone who has read Letters knows that Tolkien was not wealthy by any stretch of the imagination, until perhaps late in his life. He and his heirs have the right to benefit from his labor.

All this said, as Huinesoron states, trademark and copyright protections are not limitless. Enforcement, both as a legal matter as well as a practical matter, is generally limited to prevent exploitation. Thus simply mentioning LoTR or Tolkien's name in a conversation will not get you sued, but selling keychains with his monogram might. Parody, critical and philosophical analysis are also generally not protected. The Estate might have the technical right to protect against "fan fiction" but it also benefits from it. And as a practical matter, unless something is done for profit or some financial benefit or it harms the value of the protected work, it would not be worthwhile for the Estate to crack down on such things both from a financial and a public perception perspective.

William Cloud Hicklin · 06-17-2022, 12:31 PM

Quote:

If the owner does not "protect" its rights, by suing for infringement for example, the owner may lose some of its rights. So it is not surprising that the Estate publishes a list of what it frowns upon, whether or not the rights would be enforced by a court. Nor is it surprising that the Estate has, in the past, enforced its rights.

That I think is the key. If the owner of a trademark, in particular, and to a rather lesser degree a copyright, can be shown in court not to have enforced it, to have let infringements slide in the past, then the holder is at risk of losing his IP entirely. This FAQ is a pre-emptive defense to that.

To what extent in practical terms they actually go around suing fanzines or pulling YouTube videos- that's another question entirely.

WRT Amazon: as horrible as their fan-fic is, they do have permission. Paid through the nose for it, in fact. It's worth mentioning that Tolkien scholarship is unaffected: the Estate will grant permission, if your stuff passes muster, and without charge.

__________________________________
I think another element here is defense specifically of the name Tolkien, since that is one thing which was not licensed in the 1969 UA film rights deal, and which therefore has never been owned by Saul Zaentz (responsible for all the videogames etc by a very generous interpretation of the "marketing and merchandising" provision). Note that some years ago the Estate was able to force the Zaentz subsidiary to change its name from "Tolkien Enterprises" to "Middle-earth Enterprises." Add to that that the JRRT colophon is in effect the Estate's imprimatur, its 'seal of approval' for official and officially-approved works.

(Caveat: IP was never my area of practice... although I did get an A in the course!)

Rhun charioteer · 01-25-2023, 10:17 PM

With regards, to fanfic I get the impression they're talking about commercialized fanfic(which is technically illegal-at least in the US), I doubt the estate would sue say...fanfiction.net over LOTR fanfiction.

Regarding the rest of it, eh well IP protection and all. I'm somewhat mixed on the subject.

***Mithadan*** · 04-18-2023, 07:21 AM

It seems that Amazon and the Tolkien Estate have been sued by a writer who claims to have written, published and copyrighted "an original book entitled The Fellowship of the King and conceived an entire seven-book series, The War of the Rings." Hmmmm. I generally do not mix my professional life with this forum, however, to the plaintiff, I say (with my tongue inserted firmly in my cheek) "good luck."

https://www.msn.com/en-us/entertainm...9395e1bd&ei=24

Tar Elenion · 04-18-2023, 12:38 PM

I have rapidly skimmed through the sample (ca. 8 chapters) of the book available online, and did not notice any plagiarism (although both have a character named Theo).
Seems like a publicity stunt (barring actual receipts eg showing lifted dialogue or such).

I am surprised the Estate or Harper Collins has not sued the author or his publisher (as far as I know).

06-14-2022, 09:06 AM	#2
Thinlómien Shady She-Penguin Join Date: Dec 2004 Location: In a far land beyond the Sea Posts: 8,093	Very much agreeing with all of you. It is very ironic they're taking such a strict stand while letting Amazon run rampant with their rather liberal interpretation (to put it nicely) with the Estate's blessing. It does come across as greedy money grubbing, and it is not very flattering, as I said, as it's the younger generation further removed from the Professor himself in charge of things now. They seem more preoccupied with securing the cash flow realted to the Tolkien name than with preserving his artistic and intellectual legacy. Thank you, Hui, for bringing in the legal point of view. It is at least a little comforting to know this policy looks unlikely to succeed in the court. Which makes it seem very amateurishly written, by the way, and all the more eyebrow raising for that reason... __________________ Like the stars chase the sun, over the glowing hill I will conquer Blood is running deep, some things never sleep Double Fenris

06-14-2022, 02:14 PM	#3
*Mithadan* Spirit of Mist Join Date: Jul 2000 Location: Tol Eressea Posts: 3,396	I cannot claim any specific familiarity with British or international copyright or trademark law. That said, intellectual property laws generally are intended to protect against a few things. First, one should not be allowed to profit or benefit from the use of another's protected materials. This extends to using protected material both directly (for example, the publication of a sequel to LoTR) and indirectly (by using protected material in a manner that would lead the public to believe that a product is affiliated or sanctioned by the owner of the trademark or copyright). Another protection is to avoid product confusion, such as publication of material that would lead the public to believe that it is related to protected material. In addition, the right holder is protected from diminution in the value of the protected material due to infringement. What remedy may be available depends, in part, on whether the infringement is intentional, which could result in an award of damages, or inadvertent, which might still entitle the owner to an injunction. There are likely gradations in between. If the owner does not "protect" its rights, by suing for infringement for example, the owner may lose some of its rights. So it is not surprising that the Estate publishes a list of what it frowns upon, whether or not the rights would be enforced by a court. Nor is it surprising that the Estate has, in the past, enforced its rights. The idea is that Tolkien worked hard on his creation. It has a value as an asset. The trademarks and copyrights may be the only real marketable asset that the Estate has. Anyone who has read Letters knows that Tolkien was not wealthy by any stretch of the imagination, until perhaps late in his life. He and his heirs have the right to benefit from his labor. All this said, as Huinesoron states, trademark and copyright protections are not limitless. Enforcement, both as a legal matter as well as a practical matter, is generally limited to prevent exploitation. Thus simply mentioning LoTR or Tolkien's name in a conversation will not get you sued, but selling keychains with his monogram might. Parody, critical and philosophical analysis are also generally not protected. The Estate might have the technical right to protect against "fan fiction" but it also benefits from it. And as a practical matter, unless something is done for profit or some financial benefit or it harms the value of the protected work, it would not be worthwhile for the Estate to crack down on such things both from a financial and a public perception perspective. __________________ Beleriand, Beleriand, the borders of the Elven-land.

04-18-2023, 07:21 AM	#6
*Mithadan* Spirit of Mist Join Date: Jul 2000 Location: Tol Eressea Posts: 3,396	It seems that Amazon and the Tolkien Estate have been sued by a writer who claims to have written, published and copyrighted "an original book entitled The Fellowship of the King and conceived an entire seven-book series, The War of the Rings." Hmmmm. I generally do not mix my professional life with this forum, however, to the plaintiff, I say (with my tongue inserted firmly in my cheek) "good luck." https://www.msn.com/en-us/entertainm...9395e1bd&ei=24 __________________ Beleriand, Beleriand, the borders of the Elven-land.

04-18-2023, 12:38 PM	#7
Tar Elenion Shade of Carn Dûm Join Date: Jul 2000 Posts: 369	I have rapidly skimmed through the sample (ca. 8 chapters) of the book available online, and did not notice any plagiarism (although both have a character named Theo). Seems like a publicity stunt (barring actual receipts eg showing lifted dialogue or such). I am surprised the Estate or Harper Collins has not sued the author or his publisher (as far as I know). __________________ Tar-Elenion

01-25-2023, 10:17 PM	#5
Rhun charioteer Wight Join Date: Jun 2017 Posts: 118	With regards, to fanfic I get the impression they're talking about commercialized fanfic(which is technically illegal-at least in the US), I doubt the estate would sue say...fanfiction.net over LOTR fanfiction. Regarding the rest of it, eh well IP protection and all. I'm somewhat mixed on the subject.