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PostPosted: Tue Nov 20, 2012 6:23 am 
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This one pits the Tolkien Estate and related entities, as well as Harper Collins, against Warner Brothers, New Line, and most particularly Saul Zaentz. The main complaint is copyright infringement, with regard to Lord of the Rings themed slot machines, and online and downloadable video games. The gravaman of the claims is that the original agreement only granted limited merchandising rights that cover personal property that can be purchased, and that these items exceed the scope of said merchandising rights. The plaintiffs also claim that Zaentz has been infringing trademark rights. These disputes have been brewing for a long time, but apparently were brought to a head when one of the Estate's attorneys received a "spam" email advertising the slot machines. They claim they have engaged in settlement discussions since 2010, to no avail, and that Zaentz has instead indicated that he intends to expand the merchandising.

Interestingly, Christopher is not a named plaintiff this time, but his sister Priscella is, as a trustee of the Tolkien Trust. There is also entity entitled Fourth Age, Ltd., which was not a party to the last suit, but which I suspect is a successor to the private trust that was a party to that suit. It's directors include all of the usual Tolkien family members plus their new attorney.

My sympathies are mostly with the plaintiffs in this case, although I'm not sure how strong their claims will turn out to be legally. The case doesn't have any direct effect on the films, except for the potential negative publicity.

Stay tuned!

Tolkien Estate Sues Warner Bros. Over 'Lord of the Rings' Slot Machines

Complaint

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PostPosted: Tue Nov 20, 2012 11:35 pm 
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But aren't LOTR-themed slot machines consistent with the dwarf ethic? "Thinking about trekking all the way across Middle Earth to get rid of a massive dragon and take your long-forgotten gold back? Think again. There's a much easier way to get your stumpy hands on some quick and abundant cash. Las Vegas!"


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PostPosted: Thu Nov 22, 2012 11:10 am 
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Article on this latest lawsuit by Erik Wecks over on Wired, clarifying some of the issues at stake and suggesting why the Tolkien Estate may have felt the need to take such action.

The Tolkien Estate Sues to Protect Their Precious

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PostPosted: Thu Nov 22, 2012 2:38 pm 
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I thought that was an interesting and thought provoking piece.

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PostPosted: Thu Nov 22, 2012 3:19 pm 
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I did too. The one thing that he misses, however, is that the real dispute is not so much between the Tolkien Estate and WB as it is between the Estate and Saul Zaentz.

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PostPosted: Fri Feb 01, 2013 1:38 am 
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It gets uglier, I'm afraid. Zaentz is not only opposing the lawsuit, he has filed a counterclaim alleging that the Tolkien Estate has breached the covenant of good faith and fair dealing by suddenly objecting to Zaentz's exploiting Tolkien's works for online video games and similar products when they have done so for years with no objection, and that (at least from Zaentz's point of view the agreements give the right to do so). He goes so far as to claim that the Tolkien estate should be thankful to Zaentz because the popularity of Tolkien's work is largely due to his exploitation of the works over the past forty years! He is seeking not only a declaration that establishes that exploitation is legal, but also damages.

Cheeky fellow!

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PostPosted: Fri Feb 01, 2013 1:54 am 
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When Stephen King wrote his version of LORD OF THE RINGS - THE STAND - he used Vegas as his Mordor. It all seems quite perfect.

This is from the article Elen linked to from Wecks

Quote:
This clash is also a fight between organizations with two very different goals. HarperCollins and the Tolkien estate have the long-term interests of of the books in their sights. Of course, one reason is because this is their chief source of income. Movies, spin-offs and fan fiction are wonderful if they lead fans back to the source text. But Peter Jackson’s films are a different matter. They threaten to become source texts in themselves that eclipse the original books. This is the fear that Christopher Tolkien, the head of the Tolkien estate, spoke about when interviewed by the French paper Le Monde in July
.

So can one then conclude that the real complain the Estate has with Jackson is that his films were too popular - too widely seen - too successful- and are now Middle-earth in the minds of far too many people?

Is that the position they are taking - at least privately?

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PostPosted: Wed Feb 06, 2013 3:53 pm 
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I have now had a chance to review Zaentz and Warner's responses. Warner's also counter-claims. I must say, particularly with regard to online video games, they make a very compelling case. They cite correspondence going back to 1996 in which with Harper Collins and the Estate's attorney concede that Zaentz has the right to online video games. Perhaps most interesting, they cite a 2010 "regrant" agreement in which the Estate confirms the rights held by Zaentz, and licenced to Warners/New Line. That must be the agreement that was referred to in Entertainment Weekly back in October 2010, in which Jackson was quoted as saying that one of the issues causing the delay was negotiations with the Estate over rights issues. I think it is likely that I will get a chance to see that agreement (as well as the other documentation that Zaentz and Warners say they have) over the course of the lawsuit.

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PostPosted: Wed Feb 06, 2013 8:33 pm 
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Voronwë the Faithful wrote:
I have now had a chance to review Zaentz and Warner's responses. Warner's also counter-claims. I must say, particularly with regard to online video games, they make a very compelling case. They cite correspondence going back to 1996 in which with Harper Collins and the Estate's attorney concede that Zaentz has the right to online video games. Perhaps most interesting, they cite a 2010 "regrant" agreement in which the Estate confirms the rights held by Zaentz, and licenced to Warners/New Line. That must be the agreement that was referred to in Entertainment Weekly back in October 2010, in which Jackson was quoted as saying that one of the issues causing the delay was negotiations with the Estate over rights issues. I think it is likely that I will get a chance to see that agreement (as well as the other documentation that Zaentz and Warners say they have) over the course of the lawsuit.


Content in online games is a notorious grey area. Similar to online discussion groups much of the content is created and shaped by participants. It is is even typical for online games to carry a ratings disclaimer because users may take things beyond what the creator's content was rated at. All this is to say that even though the Estate may have granted the rights, an argument could be made that the typical online experience breeches the intent of the agreement... not sure if it is a case of bad faith but surely game designers knew by 2010 that content is very difficult to manage online.


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PostPosted: Wed Feb 06, 2013 9:53 pm 
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I'm not sure how relevant that is to the issues in the lawsuit.

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PostPosted: Wed Feb 06, 2013 11:06 pm 
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Voronwë the Faithful wrote:
I'm not sure how relevant that is to the issues in the lawsuit.


From the 11/21/12 Wired article:

Quote:
The lawsuit argues that Warner Brothers is trying to convert what was a limited right to profit from J.R.R. Tolkien’s intellectual property into an unlimited right to use The Lord of the Rings and its characters as they see fit.

It isn’t just the Tolkien estate and its charitable arm that are suing Warner Brothers; it is also HarperCollins, the holder of the English language rights to both Lord of the Rings and The Hobbit. There is a lot at stake here for them as well. You now have a tug-of-war to decide who controls the iconography of Tolkien’s masterworks and their place in our society. On the one side you have the estate of the original creator and the publisher of his works. On the other side, there is the company behind one of the largest film franchises in history.


It seems the key issue isn't whether WB hold the rights to online games etc but how the use of the license damages Tolkien's legacy. That's how I took this, from your lead post: "The plaintiffs also claim that Zaentz has been infringing trademark rights."


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PostPosted: Wed Feb 06, 2013 11:47 pm 
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No, that is what the journalist wants to make it be about, not what it really is about, from a legal point of view. The case really is mostly about whether Zaentz (not WB, they just licence their rights from Zaentz) holds the rights to online games etc. While it is true that the plainitffs also assert trademark infringement, that is likely to prove to be a minor side issue.

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PostPosted: Thu Feb 07, 2013 3:41 am 
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Voronwë the Faithful wrote:
No, that is what the journalist wants to make it be about, not what it really is about, from a legal point of view. The case really is mostly about whether Zaentz (not WB, they just licence their rights from Zaentz) holds the rights to online games etc. While it is true that the plainitffs also assert trademark infringement, that is likely to prove to be a minor side issue.


Ah, thanks for the clarification. (Dang it V, I'm a doctor not a lawyer. I'm not even a doctor really.)

I wanted to ask about some things from you longer post on TORn, specifically this part:

Quote:
Zaentz and WB have responded to the lawsuit by, in addition to denying the allegations, filing counterclaims for declaratory relief and for damages for breach of the implied covenant of good faith and fair dealing inherent in all contracts under U.S. law.


First of all, my understanding is "declaratory relief" is when a judge defines the rights of each party, effectively ending the matter without prescribing remedies. Is it strange then that they are asking for damages as well as relief? Are they trying to keep this matter going for years to come?

If so, especially in light of the claim of "bad faith," do you think it would buy them time to continue making money from the things to which the Estate objects? (It's not like online games remain popular for a long time, certainly not as long as the average good book... the ability to keep them running now is more important than it will be 5 years from now.)

Incidentally, I know a person who played on a LOTR slot machine and won a few hundred dollars. They were quite happy while I mostly felt conflicted (for various reasons).


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PostPosted: Thu Feb 07, 2013 5:08 am 
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SirDennis wrote:
First of all, my understanding is "declaratory relief" is when a judge defines the rights of each party, effectively ending the matter without prescribing remedies. Is it strange then that they are asking for damages as well as relief? Are they trying to keep this matter going for years to come?


No, it's not at all unusual to ask for declaratory relief, and also ask for monetary damages. It would be more unusual for a party to ask for only declaratory relief, and not damages. The damages claim is based on the allegation that they entered into the "regrant" agreement in September 2010, and then the Estate immediately started complaining about actions that (at least in Zaentz and WB's opinion), they had just agreed on.

Quote:
If so, especially in light of the claim of "bad faith," do you think it would buy them time to continue making money from the things to which the Estate objects? (It's not like online games remain popular for a long time, certainly not as long as the average good book... the ability to keep them running now is more important than it will be 5 years from now.)


No, it shouldn't significantly lengthen the litigation that the Esate initiated in the first place. I do think that Zaentz in particular is angling to get a final determination that he can do some of the things that he has long wanted to do, like a Middle-earth theme park, which I am sure that the Estate would object to if they can, regardless of the rumors to the contrary.

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Incidentally, I know a person who played on a LOTR slot machine and won a few hundred dollars. They were quite happy while I mostly felt conflicted (for various reasons).


I am conflicted about the slot machines too, and also think that the Estate may have a stronger position on them legally. I haven't carefully read the pleading word for word, but my cursory look seem to suggest that most if not all of Zaentz's and WB's argument is that the Estate and WB has long conceded that that online gaming is part of rights sold, but I haven't seen anything similarly material regarding slot machines are other gambling. If the Estate had just gone after that, they might be in a stronger position. Which suggests to me that the case is really more about the online games, even though they made a bigger deal about the slot machines, which sounds more offensive to most people.

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PostPosted: Thu Feb 07, 2013 9:00 pm 
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Thank you Sir V.

I was wondering about the terminology because I know someone who just struck a support agreement with their ex only to have the ex file a motion to abandon the agreement before giving it any time to work. It seemed in bad faith to me.

Similarly, if the Estate entered into an agreement, and then set about campaigning and working up a law suit against it, then I would have to agree that they did not act in good faith. However, in this case, someone intimately acquainted with the Estate and/or Tolkien in general (for instance Zaneatz) should reasonably have been expected to know that "slot machines" would cause offence.

I think too that the unruly nature of online role playing games -- insofar as it relates to the use of iconography -- is such that it would appear that the licensees were profiting by running a platform for user generated fan-fiction. It is an esoteric argument though... I would rather stand on your opinion on the matter.


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PostPosted: Thu Feb 07, 2013 9:09 pm 
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It will be interesting to see how it plays out.

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PostPosted: Fri Mar 29, 2013 7:33 pm 
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And the next blow is struck:

http://www.hollywoodreporter.com/thr-esq/tolkien-estate-challenges-warner-bros-431720

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PostPosted: Tue Jul 16, 2013 2:07 pm 
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The judge refused to throw out the counter-claim.

http://www.hollywoodreporter.com/thr-es ... ien-583952

Quote:
on Thursday, U.S. District Judge Audrey Collins denied a motion to dismiss, saying what Warner Bros. was doing wasn't "disguised claims for malicious prosecution."

"Simply stated," the judge writes, "these claims arise out of the parties' divergent understanding of the Warner Parties' and Zaentz's rights to The Lord of the Rings and The Hobbit. They are routine contract-based claims and counterclaims."

The judge also says that although the other side might argue that Warners has dressed up a challenge to exploitation into "repudiation," that term appropriately characterizes the claim that the Tolkien estate has "revoked rights it already granted."

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PostPosted: Wed Jul 17, 2013 3:49 am 
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The folks at TORN asked if I would write up a summary of the situation with the lawsuit, as I did for them with the last one. Most of the information in it I've already posted here, but if anyone is interested in seeing it all together:

Making Sense of the Latest Tolkien Lawsuit

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PostPosted: Wed Jul 17, 2013 2:01 pm 
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I was just looking at the Christopher Tolkien interview in Le Monde for another purpose, and I noticed this quote from the Estate's former attorney, Cathleen Blackburn:


"We are in the back seat," Cathleen Blackburn comments. In other words, the Estate can do little but watch the scenery, except in extreme cases-- for example, preventing the use of the name Lord of the Rings on Las Vegas slot machines, or for amusement parks. "We were able to prove that nothing in the original contract dealt with that sort of exploitation."


This article was originally published in July 2012, some four months before the lawsuit was filed. It is unclear exactly when the interviews took place, but it appears from that quote that at least at that point they were convinced that they had proven their point about the slot machines.

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