Tolkien Estate Sues New Line, The Hobbit Not Yet Threatened

[Frelga]

Thanks, V. A cool term. Sounds like a retainer of some court lady. the one who tells people she's not at home.

[solicitr]

I would read it the other way, actually: filing a demurrer is a way for the defense to temporize and continue to negotiate wihout triggering the serious time and expenditure-eater: discovery, which an Answer would launch. I hardly think this demurrer is a serious pleading, since the whole case is about as fact-based as you can get.

Reinforcing this, I deem, is the fact that the 'hearing' next week is not a hearing at all, but a conference, which suggests strongly to me that the sides are close to a deal but want the court to get in on it: both sides would probably want a court-appointed Special Master to do the forensic accopunting; and the plaintiffs naturally would want a settlement enterd as a Consent Decree, so that any future welching on TW's part would be a contempt matter. (This also suggests that future revenues, i.e. The Hobbit, are contemplated).

BTW, this inkstained wretch from the Times quotes CRT's 'biographer.' Huh???

And while we might excuse a non-Tolkienista the Silmarillion goof, the comment about CRT's relatives 'not knowing' if he has seen the movies is risible, since all of his inner circle and quite a few of the outer circle know the answer. Unless the 'relative' interviewed is the distant cousin who was rung up for dealing drugs out of his knife shop some months ago?

Here's the crux of the matter: far from being the obsessed old curmudgeon the press has invented, lying awake at night plotting how to destroy those cursed movies, CRT actually just ignores them. Has in fact ignored them, for going on a decade. He's made no move either to help or hinder them. Given his druthers (IMHO, but a HO with some basis), he would never have pursued this lawsuit on his own account, since riches mean little to him- but as a fiduciary for many, many people it is his unpleasant obligation to pursue monies owed. (Moreover, if he failed to do so, I expect estranged son Simon the lawyer might try to crowbar him out of the executorship- and God help any and all sense of restraint, decorum, dignity, or respect for the Professor's legacy if Simon ever got his money-grubbing paws on the copyrights).

[Voronwë the Faithful]

soli, as I have explaining previously at TORN, the conference on June 6 is court-scheduled case management conference that is scheduled by the court in every case. You can't read anything into that at all. And there is in fact a hearing on the demurrer, scheduled for June 24, but tentatively continued to 6/27 pending agreement by both sides.

[Voronwë the Faithful]

Okay, I have some more information. I have now read the demurrer. New Line is only demurring to the fifth and eighth causes of action, for breach of fiduciary duty, and fraud. Essentially they are saying that the facts alleged by the plaintiffs state causes of action for breach of contract, but not for fraud or a breach of a fiduciary duty. I think they have a pretty good chance of prevailing on those arguments (which would likely remove the possibility of punitive damages). However (and this is very important), it would not remove the possibility of the Tolkien Estate et al. stopping the films.

soli, you'll be interested to know that New Line does attach copies of the two 1969 agreements to its request for judicial notice. I haven't downloaded those because it would be too expensive, but you are welcome to do so.

I am much more impressed with the lawyering that I have seen on behalf of New Line that the Tolkien plaintiffs.

[solicitr]

but not for fraud or a breach of a fiduciary duty. I think they have a pretty good chance of prevailing on those arguments

It would seem to me that the allegation that NL fraudulently cooked the books to conceal genuine revenue and exaggerate costs would alone defeat them, at the demurrer stage. Most any judge would want to see some evidence before ruling on such a count. If, say, the executor of an estate used mob-accounting to rip off the heirs, that would absolutely constitute both breach and fraud, and I see little difference here.

The one weak count I see is the 'constructive trust' approach: but IIRC New York law construes those pretty liberally.

Unless TW is asserting that CA law lets them make up and apply whatever accounting standards they like? The old studio-contract provision to that effect was struck down as violative of public policy some time back, I believe in Buchwald v. Paramount.

What's the URL, Vor?

[Voronwë the Faithful]

The arguments against the fraud cause of action are exactly what I stated in this thread earlier. The argument against the breach of fiduciary duty cause of action is, of course, that there was no fiduciary duty. Curiously, they are not demurring to the constructive trust cause of action.

Here's the url: http://www.lasuperiorcourt.org/civilCas ... /index.asp

Case number is: BC385294.

In order to download documents, you need to register with a credit card.

[solicitr]

Track record for London press, the once august Thunderer of Trollope's day, now sadly fallen. From 2001:

On Wednesday afternoon an elderly, stooped figure will step from a plane at Heathrow.

He will avoid eye contact with his fellow passengers as he unobtrusively collects his luggage. A pre-ordered taxi will whisk him into central London where he will check into a discreet hotel under a false name.

So passionate is this 76-year-old about protecting his privacy that the grounds of his stylishly crumbling home in south-west France are patrolled by a pack of wild boars.

Only one thing entices Christopher Reuel Tolkien from his seclusion: the literary legacy of his father, the author J R R Tolkien. [He is there to] meet with the marketing manager of HarperCollins....

Now here's the rub: Every single detail of this piece is untrue- fabricated- made up out of whole cloth. It's entirely stuff and nonsense. (OK, CRT is elderly.)

[Voronwë the Faithful]

Yes, I remember that piece of rubbage well.

[Frelga]

Wild boars, really?

[ToshoftheWuffingas]

No. Wargs.

[solicitr]

Man, the LA Superior Court has a very high opinion of what downloaded copies of *public* documents are worth, doesn't it? Too rich for my currently-unemployed blood.

And that's a real shame, because over on the Barrow-Downs some time ago, a poster who said he was a former Tolkien-based RPG designer had something very interesting to say about the limitations in the contract (their rights derived from Zaentz and therefore the film deal): they were expressly forbidden to use, not only any of the posthumously-published works like The Sil, but also any portion of the LR Appendices dealing with events prior to to Downfall of Númenor.

Apparently Tolkien was holding on to those tales for himself, canny old codger. But that's 'apparently." I really, really want to read those contracts.

[Voronwë the Faithful]

You and me both, soli. I just couldn't justify paying the fee. Maybe I should take a collection. If enough people offered to contribute a few books I could download and then share the file.

Or maybe it will get posted publicly, like the complaint did (after I paid to download it ).

[Aravar]

And that's a real shame, because over on the Barrow-Downs some time ago, a poster who said he was a former Tolkien-based RPG designer had something very interesting to say about the limitations in the contract (their rights derived from Zaentz and therefore the film deal): they were expressly forbidden to use, not only any of the posthumously-published works like The Sil, but also any portion of the LR Appendices dealing with events prior to to Downfall of Númenor.

That's strange. I thought that ICE's rights were revoked in favour of the newer RPG. ICe had made full use of the whole of the then published material, inlcuding stats for all the major characters of the First Age.

[solicitr]

Iron Crown managed to get a license from the Estate for the First and Second Ages, on top of their original Zaentz licence.

The poster I was referring to worked on the original Middle-earth Online, until the project was bought out, renamed Lord of the Rings Online and turned into a Jacksonish frontend on a lame World of Warcraft clone.

[Alatar]

Iron Crown managed to get a license from the Estate for the First and Second Ages, on top of their original Zaentz licence.

The poster I was referring to worked on the original Middle-earth Online, until the project was bought out, renamed Lord of the Rings Online and turned into a Jacksonish frontend on a lame World of Warcraft clone.

Spoken like a truly uninformed, yet opinionated person.

There's nothing Jacksonish about LotRO and its far from a WoW clone.

You speak evil of that which is fair beyond your reach of thought and only little wit can excuse you...

[solicitr]

Well, Alatar, the person in question (whose view I was repeating) is indubitably opinionated and I daresay has an axe to grind, but considering that he worked there I'm not sure I'd call him uninformed.

It was not a job, it was a misadventure. Actually, I was offered a position as a Tolkien quest-writer in-game by Turbine [the new owners]; however, I declined as .... I got physically ill at the lore atrocities evident in every fiber of the game, and have not played since prior to the game's official release due to mental health considerations (thus retaining what little sanity I still have).

[Alatar]

I can only speak for myself, but to call it a WoW clone is akin to saying LotR the Musical is a clone of Les Miserables, cause well, they're both based on books, both have music in them, both use a revolve and are both on stage.

Its the differences you pay attention to, not the similarities.


As for the Tolkien/Jackson aspect, I'd say its much more steeped in book lore, since thats the license they hold. Also, they went out of their way to look and feel different to the movies. The only comparison that could be made is that both diverged from and added to the books, but thats pretty much a given when writing a game.

[solicitr]

My own brief diddle into LotR-O was not (to me) impressive in terms of 'tone': totally zap-happy, so that a party of hobbits routinely deploys more magic that Tolkien put in his entire book.


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At any rate, here are the guidelines, apparently reflecting a limitation in the original 1969 film deal:

Okay here are the licensing commandments as I now understand them:

1) If references appear only in the Lord of the Rings or The Hobbit, thou shalt use them.

2) If references appear in both the actual text of LotR and TH, and in The Silmarillion (or other Tolkien publication controlled by the Tolkien Family Trust, such as UT or HoMe), thou shalt use them.

3) If references appear in The Silmarillion or other Tolkien publication, but not in LotR or TH, thou shalt not use them.

4) If references appear in the LotR Appendices, but not in The Silmarillion or other Tolkien publication, thou shalt use them.

5) If references appear in the LotR Appendices, and in The Silmarillion or other Tolkien publication, but do not appear in the actual text of LotR or TH, thou shalt not use them.

[Alatar]

My own brief diddle into LotR-O was not (to me) impressive in terms of 'tone': totally zap-happy, so that a party of hobbits routinely deploys more magic that Tolkien put in his entire book.

Well, that much is true. But thats pretty much a requirement of the genre. Not WoW specifically, just general game balance. Its does require a certain willing suspension of disbelief. However, it has pretty much nothing to do with PJ or the movies.

[Voronwë the Faithful]

Man, the LA Superior Court has a very high opinion of what downloaded copies of *public* documents are worth, doesn't it? Too rich for my currently-unemployed blood.

And that's a real shame, because over on the Barrow-Downs some time ago, a poster who said he was a former Tolkien-based RPG designer had something very interesting to say about the limitations in the contract (their rights derived from Zaentz and therefore the film deal): they were expressly forbidden to use, not only any of the posthumously-published works like The Sil, but also any portion of the LR Appendices dealing with events prior to to Downfall of Númenor.

Apparently Tolkien was holding on to those tales for himself, canny old codger. But that's 'apparently." I really, really want to read those contracts.

The contracts provide no such limitations. They grant rights to make "one or more" films based on "any and all" parts of the works in question (LOTR and TH). They also grant rights to make "sequels" placing the characters from those works in different situations. (Yikes!)

And the plaintiffs' claim to be able to rescind New Line's right to make the new films is very flimsy at best.

Edited to add: And by the terms of the agreements, they would only have the right to seek such an order if and only if the court determines that there has been a full breach of the payments required by the agreements. Also, there is no indication in the party's case management conference statements that a settlement is close.