Zaentz countersues the Estate

[Zigûr]

Hello everyone,
I imagine some of you heard late last year that the Estate was involved in legal action against Warner Bros. and Saul Zaentz Co. regarding the production of The Lord of the Rings-themed digital products, with the particular sore point apparently being gambling machines. Well apparently Zaentz et al have decided to respond in kind, issuing a counterclaim of their own:
http://www.wired.com/underwire/2013/...slot-machines/
http://www.icv2.com/articles/news/24963.html
Now normally I'd consider this to be part of the regular back-and-forth that might happen in these kinds of situations. What's particularly egregious about it, however, is this assertion from Zaentz Co. (quoted from the ICv2 article):

"Zaentz admits that The Lord of the Rings and The Hobbit (and associated and proprietary characters, elements and markes) are among the most famous and valuable marks in the world," the response said, "and that an excellent reputation and highly valuable goodwill has been developed... Zaentz denies that this is the result of Plaintiffs’ efforts; rather, the fame and good will developed in these marks, products, goods, and services is largely the result of the dedicated efforts of Zaentz and its licensees (including Warner Bros.) over the past four decades."

Now while this is a truism when it comes to merchandise and what not which must have its origin in these corporate entities it almost seems as if they're claiming that they are responsible for the success of The Hobbit and The Lord of the Rings in general: "associated and proprietary characters, elements and marks". As far as I'm aware such a claim is not so much disputable as demonstrably wrong; Professor Tolkien's work was a massive success before these rights ever came into play, which has certainly not been happening in any noticeable way for as long as forty years - perhaps more like twelve when the films were getting going. I don't see Zaentz doing much for the "marks" between the time of their acquisition in 1976 and the release of New Line's adaptation of The Fellowship of the Ring in 2001 apart from the animated adaptations and some role-playing material which surely does not account for the majority of the "fame and good will developed in these marks" between those years.
Never have I seen the horrible corporate notion of "We made Tolkien better and are owed for it" made more apparent. I am reminded somehow of a similar claim which was also of dubious validity:
"I am the Elder King: Melkor, first and mightiest of all the Valar, who was before the world, and made it. The shadow of my purpose lies upon Arda, and all that is in it bends slowly and surely to my will."
So my question is this (for those who might be knowledgeable in such lore): is a claim of "four decades" remotely justifiable?

[Morsul the Dark]

Hmmm interesting thought... I think it could be argued that the maintained interest is due to the efforts of the movie industry Indeed most of these machines depict the actors of the motion pictures and not fan art lifted from the book...

[Nerwen]

Originally Posted by Morsul the Dark

Hmmm interesting thought... I think it could be argued that the maintained interest is due to the efforts of the movie industry Indeed most of these machines depict the actors of the motion pictures and not fan art lifted from the book...

But "over the past four decades"? Undoubtedly the Lord of the Rings films created fresh interest in Tollkien- but they weren't made forty years ago, were they?

[Morsul the Dark]

Zaentz produced the baski films in 78 I think that's where they get the forty years

[Nerwen]

Originally Posted by Morsul the Dark

Zaentz produced the baski films in 78 I think that's where they get the forty years

Seriously, Morsul- Baski's Lord of the Rings was responsible for the success of the novel? C'mon!

[William Cloud Hicklin]

This is after all Saul Zaentz we're talking about- underhanded and sleazy even by Hollywood's non-standards.

[Morsul the Dark]

Originally Posted by Nerwen

Seriously, Morsul- Baski's Lord of the Rings was responsible for the success of the novel? C'mon!

I said no such thing, I said that's where the four decades comment was established.

[Recoveryanonymous]

Hi all, this is my first post here. This particular topic interests me.

There's another layer to this lawsuit that I think you should all be aware of.

There's this total conversion mod for Skyrim that remakes Middle Earth in a map nine times the size of Skyrim's map. It's a really ambitious non-profit fan project.
Magic will be largely restricted to be more lore friendly. Spears will be implemented to the arsenal of weapons. There will be enhanced mounted combat.

http://www.moddb.com/mods/merp-middl...pons1#imagebox

Merp will also have its own original music and voice too. Here's a track.
http://www.moddb.com/mods/merp-middl...und-3#imagebox

There will be three "modes" to play. A Ringbearer quest-line, where you play as Frodo and go through his journey. There will be a dynamic timeline where events in the world are triggered by the dates they occur in the books. Best hurry to Mt. Doom before the Battle at the Black Gate is over.
There's also a White Council "mode", where you run errands and such for the White Council and a free roam "mode" similar to Skyrim. Each mode will have a ton of quests to complete. It would difficult to complete them in the Ringbearer mode and White Council mode because you'd have other duties to attend to and little time.

There's also supposed to be a realism mode, where the player has to worry about food and water. Viewing the map is restricted and combat is much more unforgiving in this mode.


In July Warner Brothers sent the project a cease and desist letter.
The modding team tried negotiating with them, even offering to severely limit the mod. WB didn't care. They wanted Merp gone, claiming that Merp would cannibalize the market. A multibillion dollar company feeling threatened by a non-profit fan mod.

The mod team got a lawyer and started a petition to revoke the cease and desist. The petition currently has over 28,000 signers. Maybe not much for WB, but nonetheless the team persevered.

In late November, The Tolkien Estate sued Zaentz and the their sub licensee Warner Brothers. In addition to the slot machines, Warner Brothers never had the legal rights to "non-tangible digital media". Entities such as Merp were beyond their jurisdiction, rendering their Cease and Desist void. The Tolkien Estate had inadvertently saved Merp.

Now however, Zaentz is counter suing the Estate, threatening to throw Merp back under the rule of Warner Brothers and undo the Estate's actions. This conflict between these two juggernauts does, in a way, decide the fate of fan projects like Merp.

[Zigûr]

Originally Posted by Recoveryanonymous

In late November, The Tolkien Estate sued Zaentz and the their sub licensee Warner Brothers. In addition to the slot machines, Warner Brothers never had the legal rights to "non-tangible digital media". Entities such as Merp were beyond their jurisdiction, rendering their Cease and Desist void. The Tolkien Estate had inadvertently saved Merp.

Now however, Zaentz is counter suing the Estate, threatening to throw Merp back under the rule of Warner Brothers and undo the Estate's actions. This conflict between these two juggernauts does, in a way, decide the fate of fan projects like Merp.

I have heard about this, although I didn't realise that the Estate's suit possibly put the project in the clear. It did seem at the time that WB was concerned that a fan-made project would threaten their own products; I've only played the Battle for Middle-earth games (surprisingly fun) and the Return of the King tie-in button-masher (stress relief if nothing else) but those are from before WB had the license. I'm led to believe that the more recent video games have not done particularly well so I can see why they might be concerned, but that's still a rather petty reason to issue a cease and desist, as well as showing a lack of confidence in their own products. In addition it seems like the fan project is a long way from completion, and it would be a shame if this counter-claim would put something with such effort devoted to it in jeopardy again.
That being said, and judging from the images I've seen, doesn't the mod largely use designs from the films? Their summary says:
"We use the films for inspiration, but base our visual design mainly on the descriptions in the books and the works of Ted Nasmith and John Howe."
but judging by the Rohan buildings, Treebeard etc it's still largely reminiscent of the films. I can see why it might be treading on a few toes in that regard.

[Recoveryanonymous]

Originally Posted by Zigûr

That being said, and judging from the images I've seen, doesn't the mod largely use designs from the films? Their summary says:
"We use the films for inspiration, but base our visual design mainly on the descriptions in the books and the works of Ted Nasmith and John Howe."
but judging by the Rohan buildings, Treebeard etc it's still largely reminiscent of the films. I can see why it might be treading on a few toes in that regard.

I really don't think so. Warner Brothers wouldn't even allow a private release for just the developers.
http://www.pcgamer.com/2012/09/06/mi...se-and-desist/

I think WB felt threatened by the project and took legal action against it using whatever reasons they could conjure up no matter how flimsy. A private release would have allayed their complaint of Merp's effect on the market. Warner Brothers didn't care.
In any case, the movies only covered a limited portion of Middle Earth; Merp would be showing all of it. Many locations would be designed by the team. Based on Tolkien, of course, but the films couldn't really be a source of inspiration for Fornost, or Dol Amroth or a variety of other places.
There might be some similarities between Merp and the films in the design of the "iconic" locations, but didn't Alan Lee work on the trilogy too?

[Zigûr]

Originally Posted by Recoveryanonymous

In any case, the movies only covered a limited portion of Middle Earth; Merp would be showing all of it. Many locations would be designed by the team. Based on Tolkien, of course, but the films couldn't really be a source of inspiration for Fornost, or Dol Amroth or a variety of other places.
There might be some similarities between Merp and the films in the design of the "iconic" locations, but didn't Alan Lee work on the trilogy too?

Quite so. I was merely trying to suggest some rationale for WB's attitude, but it does seem to derive more from sheer bloody-mindedness than any kind of genuine intellectual property issue. If they have so little confidence in their own ability to produce and market successful Tolkien-themed video games that they feel threatened by a fan mod for Skyrim I'm not really sure how they can think that putting a stop to its development is going to somehow improve their own success. Are they threatened by a non-profit mod because they fear that more people will buy Skyrim (rather than their own RPGs) as a result or some equally absurd concern? I notice however than in addition to having the license to produce film-related material WB also owns Turbine, Inc. which makes the specifically book-related The Lord of the Rings Online. Nonetheless, I would be curious as to whether there was any precedent or evidence for mods causing the kind of market "confusion" among consumers about which WB claim to be concerned. Where is the cease-and-desist against, say, The Third Age: Total War?
Frankly I despair of this 'Melkorism' among corporations, destroying things simply because they themselves did not create them and can't profit from them: "all gold (in Middle-earth) seems to have had a specially 'evil' trend"... (Morgoth's Ring)

[Recoveryanonymous]

Originally Posted by Zigûr

I notice however than in addition to having the license to produce film-related material WB also owns Turbine, Inc. which makes the specifically book-related The Lord of the Rings Online. Nonetheless, I would be curious as to whether there was any precedent or evidence for mods causing the kind of market "confusion" among consumers about which WB claim to be concerned. Where is the cease-and-desist against, say, The Third Age: Total War?
Frankly I despair of this 'Melkorism' among corporations, destroying things simply because they themselves did not create them and can't profit from them: "all gold (in Middle-earth) seems to have had a specially 'evil' trend"... (Morgoth's Ring)

It's probably not easy to speculate about all the variables that could effect the market. But considering the fact that Merp is a mod for an existing game, it isn't too much of a leap to assume that it wouldn't affect a large portion of people, at least not at first. Take the player-base for Skyrim, divide away the console users who can't play mods and all those who don't use mods anyways. The result can't be that much could it? If Merp were completed, I think word of mouth would make it well known, but that's years away at least. Who knows how many people would be willing to go out and buy a strong PC just to play Merp? The process of acquiring a mod tells me no one would confuse it for a game you'd have to purchase in a store. Your right about the "Melkorism" amongst these guys. It just becomes ever more transparent.