Tolkien Estate Sues New Line, The Hobbit Not Yet Threatened

[solicitr]

SF, understand that film rights are merely derivative rights. The principal copyright, that in the original written work, remains Tolkien's, his heirs and assigns forever. Their ownership of the written work is absolute and unconstrained. All UA got was the right to make movies based on the LR: they didn't receive control of any sort whatsoever over Tolkien's writings.

[Primula Baggins]

Generally the party with little power in these transactions is the writer. The Tolkien estate has resources most living writers don't have, but even they don't have whole legal departments at their disposal. This is why it's good to have copyright on the writer's side.

[sauronsfinger]

I do think there is a point here. And I also think that regardless if it is on this website or other Tolkien websites, I continually run up against an obvious and loud prejudice in favor of what Tolkien did regardless of how the question is framed.

To be frank, I think people are blinded by their love of Middle-earth and thus shut away the possibility that Tolkien did something unethical.

Nobody is saying that Tolkien could not write more about his own creations and world. But in doing so, he made problematic if not imossible, the realization and use of rights he had already sold to others.

Maybe no harm was intended. Perhaps he did not even realize that his property would become so valuable that a one page synopsis had the possibility of being made into a film. Nobody knows.

But the fact is this. Regardless of the economics or past profit, Saul Zaentz holds the film rights to First Age material in the Appendicies that have been rendered impotent and useless by the publishing of the novel length SILMARILLION.

[Primula Baggins]

SF, Tolkien did nothing wrong because no writer doing what he did would have done anything wrong. It has nothing to do with Tolkien worship, and everything to do with a writer's outright ownership of what he writes.

[Alatar]

I'm posting from my mobile phone, so my apologies if this ends up messed up. There is a precedent of the sort sf mentions. Frank and Malachy McCourt sold the rights to a play they wrote about their childhood, which apparently did ok, but nothing stellar. Frank subsequently wrote "Angela's Ashes" about mostly the same events and sold the film rights. When the movie was a success, the rights holder for the play sued. I have no idea how the case was settled but I'm sure its out there on the net somewhere.

Incidentally, the site is very readable on Opera Mini!

[sauronsfinger]

Thanks for that information Alatar. And it does seem to have some parallels with the SIL writings. I will look for more info on that lawsuit.
=======================

Here it is - from June 7, 200 THE INDEPENDENT

Four years after he gave the world Angela's Ashes, the often humorous chronicle of his impoverished childhood in southwest Ireland, Frank McCourt is facing some unexpected legal tribulations. A one-time associate is pursuing him and his brother, Malachy, for a fortune in allegedly unpaid royalties.


Four years after he gave the world Angela's Ashes, the often humorous chronicle of his impoverished childhood in southwest Ireland, Frank McCourt is facing some unexpected legal tribulations. A one-time associate is pursuing him and his brother, Malachy, for a fortune in allegedly unpaid royalties.

In a lawsuit filed this week, a Chicago-based actor and playwright, Mike Houlihan, accused the brothers of reneging on a deal negotiated when he helped them launch a play about their lives in Ireland called A Couple of Blaguards. The contract, according to the suit, entitled Mr Houlihan to 40 per cent of the brothers' earnings from Blaguards and - more crucially - from all "subsidiary" works for 15 years.

If the case reaches court, it seems that Mr Houlihan will contend that those "subsidiary" pieces should encompass Malachy's memoir, A Monk Swimming, as well as the monstrously successful Angela's Ashes and its sequel, 'Tis, both written, of course, by Frank. Translated into 25 languages, an estimated 5 million copies of Ashes have been sold. It was also the winner of the 1997 Pulitzer Prize.

The suit, it seems, caught the two brothers, both New York residents, unprepared. "Until today, we had no inkling of this," Malachy McCourt told The Independent yesterday. "We haven't received any papers or been served with anything. But I guess parasites do come out of the woodwork".

That Mr Houlihan helped promote Blaguards, itself a collection of stories of childhood dejection in Limerick, is not in dispute. After seeing the McCourts perform it at a tiny New York venue, Mr Houlihan raised $20,750 (£13,000) from a group of small investors to bring it to Chicago, where it played for about a year.

Mr Houlihan's suit, however, will stand or fall on the notion that Blaguards was the seed bed from which the three books, including Ashes, were later to spring. That, Malachy argued yesterday, is incorrect. "There is an odd, occasional reference in the play to what went on in the books but to claim that the books were based on Blaguards is nonsense. Frank has notebooks that go back way before the play."

Now to find out what happened to that lawsuit.

[solicitr]

But the McCourt case is rather different: he in effect sold the same film rights twice. That's not the case here, since no Sil rights have or are likely to be sold- and even if they were to be, UA -> Zaentz have right of first refusal. More to the point, nobody could reasonably claim that the Appendices are the 'same' work as the Sil, in the sense that McCourt's play and novel were.

A closer analogy oddly works in the other direction, since the primary work was cinemetic and the derivative printed: the plethora of Star Wars novels licensed by Lucas between the first and second triliogies. When Eps I-III came out they contradicted and rendered 'worthless' much of the stuff in the novels- did that give Zahn et al some rights as against George Lucas? Of course not.

But the fact is this. Regardless of the economics or past profit, Saul Zaentz holds the film rights to First Age material in the Appendicies that have been rendered impotent and useless by the publishing of the novel length SILMARILLION.

To which the law responds, "Tough cheese." The rights and obligations of the parties to a contract are precisely those spelled out in the contract: no more, no less. If the UA Agreement contained no limitation on the publication of the Sil, and it didn't, then Zaentz has no legal right to object to it. A claim at law needs a basis in law: "It's not fair" is not a cognizable cause of action.

[sauronsfinger]

from Solicitr

A closer analogy oddly works in the other direction, since the primary work was cinemetic and the derivative printed: the plethora of Star Wars novels licensed by Lucas between the first and second triliogies. When Eps I-III came out they contradicted and rendered 'worthless' much of the stuff in the novels- did that give Zahn et al some rights as against George Lucas? Of course not.

As an attorney, you have an advantage over me in discussions like this. However, I would strongly suspect that since it is was George Lucas who is behind both the films and the licensing of books that are based on SW, that type of eventuality is taken care of in the contract and I would also strongly suspect it is in favor of Mr. Lucas. I would guess that any licensing contracts to write books based on SW gaps, are extremely limited and narrow in what they allow the writer to do.

This is from the Kristin Thompson site - and is language directly from the original contracts between Tolkien and UA. It is in regard to sequels or developing other films from the sold material:

The sole and exclusive right in connection with the making, exhibition and exploitation of said motion picture photoplays to translate into all languages, to freely adapt, change, transpose, revise, rearrange, add to and subtract from the Work or any part thereof and the title, theme, plot, sequences, incidents and characterizations thereof, to make interpolations in and substitutions for any part of [sic] parts thereof, to make sequels to and new versions or adaptations of the Work or of the theme thereof or any incidents, characters, character names, scenes, sequences or characterizations therein contained in conjunction with any other work or works, and to separately or cumulatively do any or all of the foregoing, to such extent as the Purchaser, in its sold discretion may deem expedient in the exercise of any of the rights, licenses or privileges herein conveyed and to interpolate in said motion picture photoplays music compositions, gags, lyrics and music of all kinds, to set to music any verse, lyric, prose or part or parts of the Work and any characters thereof.

Question: could Zaentz take the First Age material in the Appendicies and make a SILMARILLION film using this clause as legal justification?

Does not the appearance of First Age material in the Appendicies to LOTR combined with this clause possibly open up the door to such an enterprise?

[Voronwë the Faithful]

Question: could Zaentz take the First Age material in the Appendicies and make a SILMARILLION film using this clause as legal justification?

Not if he used details that are in the Silmarillion and not the LOTR appendices. He'd have to veer off into the realm of fan-fiction. And then there would be a riot.

And by the way, the "Kane" that Kristin Thompson quotes and cites to several times in that blog post is me.

[solicitr]

Regardless of the economics or past profit, Saul Zaentz holds the film rights to First Age material in the Appendicies that have been rendered impotent and useless by the publishing of the novel length SILMARILLION.

Quite the contrary: Zaentz' nominal rights to the First Age fragments in the Appendices were impotent and useless when he obtained them: it was the publication of the Silmarillion that gave them any value at all.

However, I would strongly suspect that since it is was George Lucas who is behind both the films and the licensing of books that are based on SW, that type of eventuality is taken care of in the contract and I would also strongly suspect it is in favor of Mr. Lucas. I would guess that any licensing contracts to write books based on SW gaps, are extremely limited and narrow in what they allow the writer to do.

But even if that were not the case, even if the contracts with Zahn et al were as broad as the UA contract, the essential legal principle would remain: the Star Wars universe is Lucas' plaything, to do anything he likes with.

[sauronsfinger]

Well Mr. Kane, sir, how different does it have to be? Would different dialogue be enough?

Is there precedent in the law which defines what percentage you need to change to avoid copyright violation of anothers work?

Zaentz' nominal rights to the First Age fragments in the Appendices were impotent and useless when he obtained them: it was the publication of the Silmarillion that gave them any value at all.

What do you mean by that?

One of the most beloved and famous films of all time ITS A WONDERFUL LIFE was based on a holiday greeting card. Thats less material than the synopsis of the First Age that appears in the LOTR Appendicies.

[Voronwë the Faithful]

Well Mr. Kane, sir, how different does it have to be? Would different dialogue be enough?

Is there precedent in the law which defines what percentage you need to change to avoid copyright violation of anothers work?

Those questions extend beyond my level of expertise, I'm afraid. As soli mentioned earlier, we would need an IP specialist. And even then, I doubt we would get any hard and fast answers.

I don't mean to belittle your questions, sf. They are interesting and viable questions. I just can't answer them.

But just to re-clarify terms, as soli indicated earlier, what we are talking about is different than a copyright violation. The Tolkien Estate and the publishers own the copyright to all of Tolkien's writings. The sale of the film rights to some of those writings does not change that.

[solicitr]

Is there precedent in the law which defines what percentage you need to change to avoid copyright violation of anothers work?

Yes. 100%.

To avoid infringement, Zaentz' licensee would have to produce a screenplay that in no way resembles any jot or tittle of Sil or UT, except for material in the LR Appendices. That would include for example any mention of Fëanor's being leader of the Rebellion, or his presence in middle-earth; any description or depiction of Nargothrond or Gondolin which vaguely resembles Tolkien's own, including their geographic location; and notion that Thangorodrim was a triple mountain and not a 'fortress'; any mention of the deeds of Húrin or Túrin, period; any notion that Galadriel was related to Fëanor or Gil-Galad; any mention of Glaurung; any events of the War of the Jewels whatsoever (save Beren & Lúthien's quest, and then only without detail)- in sum, if you happen to have a first edition (1974) of Tyler's Tolkien Companion, then the fragments (and wrong guesses) he included in ignorance of The Sil are all that could be used.

[sauronsfinger]

To avoid infringement, Zaentz' licensee would have to produce a screenplay that in no way resembles any jot or tittle of Sil or UT, except for material in the LR Appendices.

Is that then true of every other film as well or only in this one specific instance?

[Primula Baggins]

You can't adapt a work if you haven't bought the right to adapt it. If you buy the rights to adapt a book, you can adapt everything that is inside the covers of that book. You have no right to adapt anything else the author has written, even if it's closely related. The only work you have rights to is the specific book, with the specific ISBN, that is named in the contract.

[sauronsfinger]

this from Voronwë

Not if he used details that are in the Silmarillion and not the LOTR appendices. He'd have to veer off into the realm of fan-fiction. And then there would be a riot.

Yes, I understand that.
And why would "there be a riot"?

Thats a rheotrical question that I will answer myself. Because the fans know what the "real Silmarillion" is because they real the novel length version. Which brings us full circle back to my original contention that Tolkien sold the film rights to something and then rendered then virtually unusable by taking other actions.

from Primula

You can't adapt a work if you haven't bought the right to adapt it. If you buy the rights to adapt a book, you can adapt everything that is inside the covers of that book.

Yes. And UA - now Zaentz - did do that. They own the rights to make a film adaption of everything inside the covers of LOTR including the material in the Appendicies. And the sequel langauge clearly says that they can invent other things based on anything in the book.

I think a clever and bold legal department (is that an oxymoron? ) could really do something with this IF Zaentz wanted to make an issue of it.

But I guess we are only speculating about what if. Which is still interesting and I greatly appreciate the participation of all here.

[solicitr]

SF, please understand that a 'legal right', i.e. some interest which a court will enforce, can only exist if it is created by the law. There are essentially two kinds of law: that of contract and that of tort. Under contract, no party has any rights except for the ones the contract expresly gives them. It's manifestly the case that the UA agreements give Zaentz no such right as the one you're trying to promote.

Under tort law, nobody has any rights except insofar as someone else has committed a legal wrong (the definition of tort): in other words, doing something illegal. Since Tolkien and his heirs have the absolute legal right under the law to write and publish whatever they please about Middle-earth, there is no tort and therefore no cause of action.

"Loss of economic value" is not a legal argument unless it results from someone having broken the law, or a contract.

[sauronsfinger]

What if it results from a party to the contract who has taken subsequent action which renders parts of the contract useless or effectively impotent?

Can I (or anyone) enter into a contract with you, accept payment, and then take steps to render what I have sold you - or parts of what I have sold you - useless to you?

Is that legal to do that?

And I would have no course of legal action to be made whole again?

[solicitr]

Nope.

Let's take an absurd hypothetical. Suppose that, after the UA agreements, JRRT or Christopher decided to write and publish a "new" Lord of the Rings- one grotesquely altered, so that Boromir survives and fights Aragorn for the rule of Gondor, or the Eagles drop the Ring into the fire, or Sauron turns out to be a kindly old charlatan behind a curtain.

Could UA/Zaentz sue based on 'harm' to the value of the film rights to the original version? Nope. Completely outta luck.

Conversely, Tolkien's heirs have absolutely no right of action against Zaentz or Jackson for producing a highly distorted film version of The Lord of the Rings.

[sauronsfinger]

Tolkien's heirs have absolutely no right of action against Zaentz or Jackson for producing a highly distorted film version of The Lord of the Rings.

We agree on that idea in principle.
JRR Tolkien himself gave that ability to a filmmaker when he sold the film rights. Good thing it did not happen in reality.