Fairfax is reporting on an Intellectual Property suit against the LoTR and Hobbit franchise by the Tolkien Estate.
“The Hobbit curse has struck again, with JRR Tolkien’s estate suing the film’s producers to the tune of $98m for overstepping rights for Lord of the Rings merchandising and property.”
The law suit has been filed in LA by the estate as well as publisher HarperCollins. They allege Warner Bros, New Line, and Saul Zaentz Co – which holds the rights to Rings and The Hobbit – have infringed the copyright and breached a contract.
Essentially it boils dow to creating “non-tangible” products, ie online games etc., that are not covered by existing contracts. ”They did not include any grant of exploitations such as electronic or digital rights, rights in media yet to be devised or other intangibles such as rights in services.”
“The estate said it only learned of the existence of Lord of the Rings: The Fellowship of the Ring: Online Slot Game via a spam email in 2010. That caused it to investigate and discover Warners was planning real-world slot machines with Rings characters. It was also planning other products that fell outside the original agreement, the estate claims.”
So, Sam got Spammed!
I have some experience with this as I negotiated for some time with the estate of the d’Aulaires to get the rights to an old book that had exceeded its copyright in NZ, but not in America (as the US has extended copyright to 90 years not 50). I wanted to create a sequel based on their story and illustrations, but a completely new and original work, based on the same characters.
I defended against a shark who was charging NZ restaurants to use common words in their names, which he falsely argued he “owned” which he cannot.
I also had some meetings to help try and set up an LoTR museum in Wellington of the film props, but this was unsuccessful as New Line own all the rights (the funders of the films) not Peter Jackson or Weta. This is a shame, as museums around the world of the sets and props etc., would be huge draw cards for fans and tourists alike.
The Tolkien suit has a good case. The online games product is made and trades on the popularity of both the books, in the first instance (the intellectual property) and the films (made under license) which added to their property. Without the connection (for which there should be compensation) the games have almost no value. They trade on the Tolkien property, so I would expect an out of court settlement and partnership arrangement (so everyone wins), in other words a new licensing agreement. This pays compensation for the right to use the characters in a specific way (online imagery, a T-short, etc). This would apply too, if someone were to write a sequel or a parallel to Tolkien’s works, using specific “Hobbits” or “Orcs” but not “trolls,” “wizards” or “goblins.” The latter three are common parlance and belong to the public domain, as hobbits will one day. “Orcs” is a specific creation by Tolkien (much of it ‘pinched’ from Norwegian myth).
You cannot just make something (like a T-shirt) with Gollum on it and sell it. The value of the item derives from Tolkien’s creativity and book, and therefore a royalty belongs to the Tolkien estate. People obviously do. Only Disney really pursues this diligently to protect their brand.
How much money has it got in it’s pockets-ssess?
Maori for example are seeking to “copyright” their hakas and the koru (as in the AirNZ logo) a slightly more complex scenario and less clear (and I think doubtful).