Lawsuit by Tolkien Estate may halt The Hobbit

[Mithadan]

The Tolkien Estate is apparently claiming that New Line has failed to pay royalties required by the 1969 licensing agreement that Tolkien signed. Salon.com reports that the Estate is entitled to 7.5% royalties after deduction of 2.9 times the production cost for the LoTR movies and advertising expenses. New Line has apparently paid the Estate nothing and claims it owes nothing. The Estate may claim (or has claimed) that the failure to pay royalties is a breach of the licencing agreement and, as a result, the rights revert to the Estate.

The article discussing this may be found at this link. http://www.salon.com/ent/movies/btm/...es/btm/feature

[Bêthberry]

Well, it doesn't really say "halt" The Hobbit. It suggests there is a struggle to see who controls the profits from such a production. How interesting, though, to have the rights revert back to the Estate.

[PrinceOfTheHalflings]

Originally Posted by Bêthberry

Well, it doesn't really say "halt" The Hobbit. It suggests there is a struggle to see who controls the profits from such a production. How interesting, though, to have the rights revert back to the Estate.

The risk for New Line is that if the case goes to trial they may lose - this could mean not only having to pay out hundreds of millions to the Estate and Harper Collins but ALSO losing the rights to the Hobbit films (which could be worth billions).

I'm surprised that they haven't offered a hundred million (or so) to make this go away.

To be sure, even if New Line lose they can appeal, but it's not like the Tolkien family are paupers. New Line can't prolong this case until the Tolkien's run out of money. New Line would probably go broke before the Tolkien's did!

[Mithadan]

Hmmm. Do I detect the presence of another lawyer on the site?

The real issue seems to be, will New Line want to sink millions into doing preproduction and signing talent for the movie if their rights to distribute it are at all in question?

[Mithalwen]

Several I think (not me), Bill Hicklin & SpM for a start. There have been a couple of threads on this but I recall them becoming bad tempered so I will let them lie.

[davem]

Isn't the latest theory that one of the plaintiffs, Harper Collins' owner Mr R. Murdoch, is hoping that if Warner lose the distribution rights then Fox (coincidentally also owned by Mr M) will inherit them? http://wearemoviegeeks.com/2009/07/f...-hobbit-films/

[PrinceOfTheHalflings]

Originally Posted by Mithadan

The real issue seems to be, will New Line want to sink millions into doing preproduction and signing talent for the movie if their rights to distribute it are at all in question?

Well ... some money has already been sunk into this movie. Guillermo del Toro is involved and he can't be doing it for free. Screenplays are being written.

My understanding is that preproduction goes full speed ahead this September, so yes - it's a hell of a risk if they lose the rights in October.

It would be interesting, to say the least, if the rights reverted back to the Tolkien Estate. I suspect that at this point they (and by 'they' I principally mean CJRT) probably wouldn't kill off the movie, BUT you can imagine the Estate wanting script approval.

Now ... looking at the contract I see that (7.5% of) the movie's gross is split between the Estate and the publishers (after production costs are deducted). So ... does that mean the rights revert back to the Estate AND the publishers in the event of a breach? I'd better have another look.

[Tuor in Gondolin]

It would be interesting, to say the least, if the rights reverted back to the Tolkien Estate. I suspect that at this point they (and by 'they' I principally mean CJRT) probably wouldn't kill off the movie, BUT you can imagine the Estate wanting script approval.

That might not be a bad result. If CT had been active in LOTR movies some
of the worst "innovations" might have been avoided. But my impression is
he hasn't ever been in favor of movie adaptations.

[Mithalwen]

No they wouldn't. Authors almost never have any clout over what film makers do with their works when the rights have been sold .... a notable exception being JK Rowling who had the advantage of not having completed the series at the start of filming and could say you can't do x because it compromises something in a later book.

If you want a contemporary example, look at "My sister's keeper" . Despite probably paying a substantial amount for a work by a bestselling author, Warner Bros decided to turn an intelligent story with serious issues and a twist in the tale in to a routine tearjerker by changing the ending which somewhat missed the whole point of the book. Jodi Picoult has explicitly said on her website that it was completely out of her control and all complaints should be directed at the film makers.

Being extremely grateful that CT has spent decades of his life bringing so much of his father's writing to mass audience, I am glad that he wasn't obliged to spend any time on an entreprise he had no interest in. I can only imagine that he, more than anyone, can see Middle Earth in his mind's eye and has no need of film makers to realise it for him. May he spend what years are left to him in his own amusement...

Maybe I should dig up the old threads since WCH being both a lawyer and a
and correspondent of Christopher Tolkien made a number of well informed posts...

[davem]

Originally Posted by Mithalwen

No they wouldn't. Authors almost never have any clout over what film makers do with their works when the right have been sold .... a notable exception being JK Rowling who had the advantage of not having completed the series at the start of filming and could say you can't do x because it compromises something in a later book.

.

On the subject of JKR & the Harry Potter movies, Orson Card makes some interesting points

The only point of comparison is Peter Jackson's adaptation of J.R.R. Tolkien's LORD OF THE RINGS trilogy. Without denying his magnificent filmmaking achievement, I still have to point out that in almost every case where he changed significant plot points from the book, leaving some out and adding new ones, he cheapened and worsened the resulting story.

Part of this is that Jackson's writing team was not as good as the two writers who have worked on the Harry Potter films. LORD OF THE RINGS reeks of film-school bushwa in its silliest and most damaging changes.

But most of the difference is simply that Tolkien did not need cutting. He was already quite spare. Scene for scene, there is no waste. Rowling, on the other hand, is not (and has never claimed to be) a writer of Tolkien's talent, skill, or insight. Her novels COULD be cut, and indeed needed to be, and so better writers working with more uneven books were able to improve on Rowling, where Jackson's team could only damage Tolkien.

The result is that in a way, the Harry Potter series becomes, after the first two films, a FILM achievement that was more difficult and more remarkable than Jackson's undoubted achievement with LORD OF THE RINGS.http://thebulletin.us/articles/2009/...4355119093.txt

[Mithalwen]

I can't find it online but there was an article today in the Telegraph. Got CT's age wrong and said he was a virtual recluse and made it seem that the Trust only gives to causes linked to the works (eg Archive). Other than that it was fairly neutral. Nevertheless these occasions when you happen to know they are wrong always makes you wonder about everything else they report...

[PrinceOfTheHalflings]

Try this article instead:

http://www.oxfordmail.co.uk/news/hea..._of_film_cash/

No talk of CT being a recluse and also a picture of Priscilla. Priscilla is quoted as saying they don't want to shut the film down but do want to take it away from New Line.

To address an earlier point - how much control a writer has over a film - it all depends on what is negotiated when the film rights are sold. If you think a writer can't control a film then you haven't met Michael Crichton!

If the Estate does get the film rights back then they ARE in a position to dictate terms. Something to bear in mind is that in many cases nowadays film rights are not sold permanently - instead they have a "use it or lose it" clause. In other words, what is sold is not the right to make a film "some time in the future", but rather an "option" to make a film during a specified timeframe (often as little as 18 months). If production of the film does not begin within that timeframe then the rights revert to the author who is then free to negotiate a new movie deal. Obviously this wasn't the kind of deal that Tolkien signed, but if the rights revert back to the Estate then it would be in their interest to do this kind of deal in future.

This is good sense, as over 90% of movies never make it from the concept stage to actual production.

I know of several novels - for example, Arthur C. Clarke's "A Fall of Moondust" - where the film rights have been sold many times, but the films are never made and so the author in effect gets money for nothing, over and over.

New Line have been sued before in relation to the Lord of the Rings and lost both times. Once to Peter Jackson, and once to Saul Zaentz who owned the LOTR rights before New Line acquired them.

There is also a possibility that, even if the Estate wins, the judge may decide that the rights to LOTR and The Hobbit are two separate things (even though they were sold as a package) and rule that only the LOTR rights revert to the Estate - not The Hobbit rights. Also, the Estate might win but only receive financial compensation.

[Mithalwen]

Thanks PotH that is a better article all round.

I never said that a writer can't control a film, and I can imagine that the late Mr Crichton was better placed than most to negotiate contracts to his satisfaction, but it isn't that common. If the film rights reverted, well things could certainly get interesting.

I had wondered for a while if the film rights were sold "freehold". Seems barmy that they could be open ended while the author's copyright is limited. So thanks for that insight..

[PrinceOfTheHalflings]

Originally Posted by Mithalwen

Thanks PotH that is a better article all round.

I never said that a writer can't control a film, and I can imagine that the late Mr Crichton was better placed than most to negotiate contracts to his satisfaction, but it isn't that common. If the film rights reverted, well things could certainly get interesting.

I had wondered for a while if the film rights were sold "freehold". Seems barmy that they could be open ended while the author's copyright is limited. So thanks for that insight..

You're welcome, Mithalwen! I do agree that at this point it's extremely unlikely that Christopher Tolkien would want to be reviewing film screenplays! One of the younger Tolkiens might want to do so though.

JRRT certainly spent some time looking at the original 1958 screenplay, before finally deciding to wash his hands of the whole affair, and Christopher has worked with illustrators for some of the books - for example the 2003 Illustrated version of the Silmarillion was done with Christopher's involvement/approval. That is to say - he interacted with the illustrator to suggest ideas and improvements.

Anyway, none of this really matters unless the decision goes the Tolkien family's way!

One last thing - all bets are off when the copyright expires on the books, because then anyone will be able to make films of them, but that won't be for a while yet!

[davem]

Originally Posted by PrinceOfTheHalflings

One last thing - all bets are off when the copyright expires on the books, because then anyone will be able to make films of them, but that won't be for a while yet!

Copyright is now 'The Tolkien Trust' rather than 'JRR Tolkien' (some have suspected that's the real reason for the 300-400 changes made to LotR for the 50th anniversary edition...,not that I would indulge in such cynicism ...but

The war broke out in America at an early stage of Tolkien's literary career. He was not, at that time, as rich and famous as he soon would become. Early in 1965, Ace Books was planning to issue an unauthorised paperback edition of The Lord of the Rings. Because of the state of American copyright the publisher probably thought that this could be done with impunity. No royalty payment was, at first, offered to the author.

Tolkien's authorised American publishers, Houghton Mifflin, decided to issue their own paperback ASAP. In order to register the new edition as copyright, Tolkien made a number of changes in the text, so that it was technically a new bookhttp://miltonbatiste.tripod.com/oneisacrowd/id4.html.

), so it may not expire 70 yrs after Tolkien's death - or at all.

[PrinceOfTheHalflings]

Originally Posted by davem

Copyright is now 'The Tolkien Trust' rather than 'JRR Tolkien' (some have suspected that's the real reason for the 300-400 changes made to LotR for the 50th anniversary edition...,not that I would indulge in such cynicism ...but ), so it may not expire 70 yrs after Tolkien's death - or at all.

It still has to be measured as from when the author died. Their only hope is that more changes are made to Copyright Law to extend the term again ... maybe to 95 years or so.

I think "The Tolkien Trust" was established for tax minimisation purposes. They can't make minor changes to a work (no matter how many changes there are) and then hope for an extension in copyright on that basis.

On the other hand ... all the posthumously released works - The Silmarillion, HoME, Unfinished Tales, Sigurd and Gudrun, Children of Hurin ... well, those were all substantially edited by Christopher Tolkien, so his contribution counts for copyright purposes.

Ah ... I need a drink after writing all that. A pint and a chat with JRRT would be very welcome right now! If only...

[davem]

m'kay.... well I'm not a lawyer, but..... if the changes Tolkien made to the 1st ed text created a 'substantially different work' (even though from a reader's pov they aren't really all that great), & enabled him to register the new edition as copyright how come the changes that were made after his death by Hammond & Scull, under CRRT's authorisation, don't make it a 'substantially different work' ? If the original version no longer 'exists' as such (ie is not being published anymore), then doesn't the copyright to the new edition belong to the ones who produced the new edition? Or to put it another way, all Shakespeare's work are out of print, but if I published out an edition of Hamlet with a certain number of changes of my own - say I produced a parody, replacing the original names with names of current politicians & added a few jokes, but left the text substantially as is, wouldn't I be able to claim copyright for my adaptation, being as it is a 'substantially new work'?

If this edition of LotR is different to the pre-50th anniversary edition (one could argue by as much as the 2nd edition is different from the 1st), & that difference is down to other people, how come the copyright situation isn't affected? And if CRRT's editorship of the posthumous works establishes copyright with him rather than his father when the writings they contain are actually by his father, then I don't see how it could be easily argued that the same situation doesn't apply now to the new improved LotR.

[PrinceOfTheHalflings]

Originally Posted by davem

m'kay.... well I'm not a lawyer, but..... if the changes Tolkien made to the 1st ed text created a 'substantially different work' (even though from a reader's pov they aren't really all that great), & enabled him to register the new edition as copyright how come the changes that were made after his death by Hammond & Scull, under CRRT's authorisation, don't make it a 'substantially different work' ? .

The thing is that the 2nd ed of LOTR wasn't done to extend copyright but to confirm copyright in the USA. It turned later out that this wasn't really necessary, but it was an easy option for the publishers.

Sure, the 2nd ed has a new copyright date - 1965 instead of 1954, but that doesn't matter.

All of the amendments made since then, for example in the 50th Anniversary ed, only amount to corrections to the text. Proof reading adjustments, really. It's not like Christopher has added a chapter or anything of that sort.

Alternately, if Christopher Tolkien was to add some other material to the book - for example, adding the epilogue - you would probably end up with just that part of the book having a different copyright to the rest of the book. Making such alterations could also play havoc with future film or television adaptations - what version of the book would you own the rights to?

Let's go further with this - if Christopher T. made sufficient alterations to assert a entirely new copyright then you'd really have a different book. Call it LOTR v2.0. The original ed would be LOTR v1.0, the 2nd ed would be LOTR v1.1, the 50th anniv ed would be approx. LOTR v1.14. The v1 editions could become public domain while v2.0 remains copyrighted.

With The Silmarillion we have a different situation. Although it is composed of text written mainly during Tolkien's life it was never published until it was assembled after his death by CT and therefore he shares the copyright with JRRT. Therefore the copyright is maintained until x number of years after his death, not JRRT's.

What will be interesting is, at the time that the Hobbit and the LOTR go out of copyright, whether it would be possible to legally issue a fan-edited version of The Silmarillion that only used Tolkien's original drafts - on the basis that they should be public domain as no work by Christopher Tolkien would be involved.

[davem]

It will be interesting to see how much the settlement came to - I'm assuming that Warner has had to pay big time....And of course, as the Tolkien Trust is a charityit will have to announce its income for this year in next years figures, which will be freely available from the Charity Commission website http://www.charity-commission.gov.uk...idiaryNumber=0

& the last accounts for year ending Apr 2008 - if anyone's interested, donations start on page 10 http://www.charity-commission.gov.uk...080405_e_c.pdf

[Mithalwen]

Well on past performance they will put the money to exemplary use.

[PrinceOfTheHalflings]

Originally Posted by davem

It will be interesting to see how much the settlement came to - I'm assuming that Warner has had to pay big time...

If it was for much less than $100 million I'd be very surprised.

[Mister Underhill]

The appearance of a spammer on the thread caused me to read a few of the more recent posts. I am not a lawyer either, but I'm curious -- wouldn't this idea of "creating a substantially different work" by making alterations be ineffective? I mean, if you change a work enough to create a substantially different work, won't the original work still enter the public domain according to schedule anyway?

As an extreme example, I assume something like Pride and Prejudice and Zombies is copyrighted, but of course the original Pride and Prejudice -- even those parts that are identical to the altered, copyrighted version -- is still in the public domain.

[davem]

Originally Posted by Mister Underhill

I am not a lawyer either, but I'm curious -- wouldn't this idea of "creating a substantially different work" by making alterations be ineffective? I mean, if you change a work enough to create a substantially different work, won't the original work still enter the public domain according to schedule anyway?

I'm not sure about the whole Ace Books thing & the exact reasoning behind the decision for the changes which resulted in the Second Edition, yet, for all the arguments about Tolkien 'nigggling' at his work & being unable to leave it alone, we do know that that edition - with its changes, additions & deletions, only exists because Tolkien wanted to get LotR copyrighted in the US (btw, anyone wanting a cheap First Edition text of LotR should look out for the Ace paperbacks, as they are generally a lot cheaper than the 'official' ones).

[PrinceOfTheHalflings]

Originally Posted by Mister Underhill

The appearance of a spammer on the thread caused me to read a few of the more recent posts. I am not a lawyer either, but I'm curious -- wouldn't this idea of "creating a substantially different work" by making alterations be ineffective? I mean, if you change a work enough to create a substantially different work, won't the original work still enter the public domain according to schedule anyway?

Yes, you are absolutely correct. To give an another example - in Europe musical recordings are only copyrighted for 50 years from their initial release (although there is legislation pending to change this to 70 years). So any song released before 1959 is now public domain in Europe. Obviously all the rock bands that recorded music in the 1960s are now worried that their copyright is shortly going to expire!

It has been suggested that The Beatles, for example, could remix their albums to establish a new version of each. However, this would not stop the original mixes of their albums from entering the public domain during the next decade.

To give another example ... if I release a newly edited version of Shakespeare's "Hamlet" with extensive annotations then that new edition is copyright, but the copyright only applies to my additions and not to Shakespeare's original text.

Once The Lord of the Rings enters the public domain the Tolkien Trust will no doubt create some super-duper "authorised edition" with loads of "new" and "exclusive" features that are still protected by copyright. However, anyone will be free to publish a bare-bones edition that just contains the original text.

[PrinceOfTheHalflings]

I've just had another thought - Tolkien's books will enter the public domain at different times in different territories. For example, George Orwell's books are public domain right now in Canada, but still under copyright in the US. That could cause major confusion for anyone planning to make a movie in a few years time.

[Mithalwen]

Originally Posted by PrinceOfTheHalflings

If it was for much less than $100 million I'd be very surprised.

http://economictimes.indiatimes.com/...ow/4990245.cms

Well as Dave said the Trust accounts will give a fair idea but if they asked originally for $150million then even allowing that an ooc settlement would not be the full amount ... then I would hope you were right. Of course they may have agreed to be paid in instalment.

Given that the trust aims to give continuing longterm support to its chosen charities I imagine that they will invest the bulk of the settlement in order to do this from income rather than distribute it as capital.

Even with current miniscule interest rates a lump sum of this size should generate enough to maintain the trust as a force for good for a long time even without getting crafty with extending copyright. A legacy that like the Road will go on and on... I may have to forgive PJ for what he did to the book....

[Mithalwen]

http://www.thelondondailynews.com/el...ko-p-3476.html

I read about this (can't find actual story) over the weekend. I think that the estimated figure was $50 million- obviously including usual revenues as well as the film settlement. Wonder if this means that they are paying in instalments...