Film Rights to First & Second Age

[William Cloud Hicklin]

The only 'rumor' currently in play is that PJ will make one movie covering The Hobbit, and another movie covering the next sixty years until Bilbo's farewell party.

The only material concerning this period is found in the Appendices,* indeed virtually all of it in Appendix B. If PJ wants to construct a bogus screenplay about Young Aragorn, so be it.

*There is the brief conversation between Gandalf and Saruman in UT. And, no, PJ can't use it.

[William Cloud Hicklin]

And I never, ever want to hear from the so called Tolkien scholarly community, doing shadow work for their friends in the Estate, about how the upcoming movies are a travesty

Incidentally, that's a scurrilous accusation and probably merits an apology.

[Sauron the White]

Nothing scurrilous about it. Just merely connecting some very obvious dots. Why is it that those closest to the Tolkien academic community are the most critical of the movies compared to the general public? And why is it that many of these peope have contacts with those who write the journal articles and espouse the most anti-film opinions? And at the same time what is the "official" position of the Estate on the movies? No position at all thank you. Now isn't that convenient.

Case in point

"I find both of the Jackson films to be travesties as adaptations... faithful only on a basic level of plot... Cut and compress as necessary, yes, but don't change or add new material without very good reason... In the moments in which the films succeed, they do so by staying close to what Tolkien so carefully wrote; where they fail, it tends to be where they diverge from him, most seriously in the area of characterization. Most of the characters in the films are mere shadows of those in the book, weak and diminished (notably Frodo) or insulting caricatures (Pippin, Merry, and Gimli)... [T]he filmmakers sacrifice the richness of Tolkien's story and characters, not to mention common sense, for violence, cheap humor, and cheaper thrills... [S]o many of its reviewers have praised it as faithful to the book, or even superior to it, all of which adds insult to injury and is demonstrably wrong..."

I wonder who said that? And do they have any financial interest in remaining loyal and friendly with the Tolkien Estate. That paragraph is nearly a template for post after post on this very site spewing anti film opinion.

Scurrilous? More like factual.

[William Cloud Hicklin]

I wonder who said that? And do they have any financial interest in remaining loyal and friendly with the Tolkien Estate. That paragraph is nearly a template for post after post on this very site spewing anti film opinion.

Perhaps because true students of Tolkien's writings might reach similar conclusions about the movies. Those who have spent the most time analysing Tolkien's subtleties might, after all, be inclined to a Purist persuasion, and more sensitive than most to PJ's bulldozing of same. You see, unlike your precious movie critics, Tolkien scholars actually know something about Tolkien, and are not, unlike film critics, ignorant of the original edifice PJ vandalized.

Yes, your charge is scurrilous. You're either accusing Christopher Tolkien of orchestrating a whispering campaign against the movies (when in fact he simply ducked his head and waited for them to go away); or you're suggesting that there is some sinister cabal who think their bread is buttered by sucking up to some anti-Jackson position. And what financial motive could there be anyway? If your quote is, as I think it is, from Carl Hostetter, he doesn't make a penny from his linguistic work.

And how do you explain this cabal's permitting Alan Lee to be given a book to illustrate (at CRT's personal request) after he worked on the movies?

Speaking for myself, I railed against the movies, along lines similar to what you quote, long before I ever learned CRT had any opinion at all.

Keep going along these lines and pretty soon you'll have brought in the Illuminati and the JFK assassination.

[Sauron the White]

nope, its not from Hostetter. Think much higher upon the food chain.

Keep going along these lines and pretty soon you'll have brought in the Illuminati and the JFK assassination.

You invent this cabal concept and then accuse me of being wacky believing in it? And then you bring up this. Where do you get all that straw to build so many men?

[Sauron the White]

WCH - its not fair to tease you. You may see the author of the template here

http://mysite.verizon.net/wghammond/

[Nerwen]

I'm getting confused. When I last saw this thread, the debate was over a purely hypothetical movie being made about the First or Second Age (specifically, about Númenor).

That has, as far as I can see, no bearing on the actual proposed films. Or do they want to use Of The Rings of Power and the Third Age for the second one? Is that it?

And Sauron the White, I've read through your arguments on the copyright issue several times, and I still don't understand them. At least, William Cloud Hickli stated exactly what I thought you were saying... and you say he's using "strawman" tactics, i.e. misrepresenting your arguments.

So, can you please explain yourself a bit more clearly?

[William Cloud Hicklin]

Ah, Wayne Hammond, is it? One of the best. And I suppose he does draw very modest royalties from his (limited readership) books- but certainly not enough to allow him to quit his day job. Most academics do, after all, write books.

What drew the conspiracy-theory quip from me was your use of the phrase 'connect the dots.' One which, unfortunately, is used by a lot of tinfoil-hatters, and exemplifies the sort of 'logic' they use. Over the top of me.

Nonetheless, I don't especially like the insinuation that people only dislike the movies for some venal motive. Isn't it really rather the case that Tolkien Scholars are by their very nature purists?

[Sauron the White]

Nerwen ... I will try as you request.
My point is that it is not clear what rights are owned by the Tolkien Estate and what rights are owned by Zaentz and New LIne when it comes to material outsideofthe actual HOBBIT and LOTR stories.

Why? Because JRRT included a wealth of historical information in his Appendicies which were part of LOTR - ROTK and sold as film rights in 1969. Eight years later, the book length SILMARALLION is published and now there are two accounts of these events.

Many people here, including Mr. Hicklin, speak as if they have a Supreme Court decision in front of them clearly spelling out in great detail what can be done and what cannot be done with these film rights. This is not the case in reality. There is much grey area .

Since it was announced today that other material will be used in the upcoming two films outside of the normal LOTR and HOBBIT stories, I thought it would be a good idea to explore the entire idea and approach it from something other than the convention wisdom.

My point has nothing to do with CT causing to be published the SIL. Nothing. I think that was terrific. But it certainly makes the film rights to the Silmarallion material in LOTR a much more murky situation which I think is glossed over by folks like Mr. Hicklin who appear to think their viewpoint is Holy Writ or came down from the mountain top led by a choir of angels.

I refer you to my opening post in this thread.

[Aiwendil]

Many people here, including Mr. Hicklin, speak as if they have a Supreme Court decision in front of them clearly spelling out in great detail what can be done and what cannot be done with these film rights. This is not the case in reality. There is much grey area .

Surely it's this simple: the film rights include material in the LotR appendices but exclude material in other publications. Explicit use of material that is in the Silmarillion and not in the appendices would be illegal. You don't need a Supreme Court decision to tell you that any more than you need one to tell you that, yes, pointing a gun at someone and shooting it is illegal (even if the gun is licensed).

There is a potential grey area relating to the appendices: it's conceivable that if a movie were made there might be material in it about which it's not clear whether the '77 Silm. or HoMe was or was not a source. But the ambiguity in such a case could only lie in whether the film used ideas from works other than TH and LotR, not whether the use of such intellectual property is legal.

[Nerwen]

STW, thanks for explaining your position. What I still don't understand is why you think CT's act of publishing The Silmarillion affects the rights to material in The Lord of the Rings.

I don't see how this can be the case.

Are you suggesting that lawyers for Tolkien Estate might claim anything which is treated in both The Lord of the Rings and The Silmarillion violates the copyright on the latter? I don't think they'd get very far.

[davem]

Originally Posted by Sauron the White

And I never, ever want to hear from the so called Tolkien scholarly community, doing shadow work for their friends in the Estate, about how the upcoming movies are a travesty and went beyond their scope.

Fat chance.

Exactly - because New Line & Jackson know what their limitations are regarding what material they can & cannot use. If they choose to make a movie within those restrictions & mess up, it will be their fault. NL & Jackson are not victims here. If they want to avoid the kind of criticisms you're talking about they can adapt other some writer's work - or come up with something original.


Plus, I do have to point out (again) that Jackson et al do not actually care what Tolkien wrote, & are prepared to alter & invent whatever nonsense they like to replace Tolkien's carefully & lovingly created work. If they had access to all of Tolkien's M-e writings it would not change anything - they will do what they want. And I think you'd find a much more antagonistic response from 'purists' if they did have access to all Tolkien's material & did what they did with LotR all over it....

[Lalwendë]

Originally Posted by William Cloud Hickli

Ah, Wayne Hammond, is it? One of the best. And I suppose he does draw very modest royalties from his (limited readership) books- but certainly not enough to allow him to quit his day job. Most academics do, after all, write books.

What drew the conspiracy-theory quip from me was your use of the phrase 'connect the dots.' One which, unfortunately, is used by a lot of tinfoil-hatters, and exemplifies the sort of 'logic' they use. Over the top of me.

Nonetheless, I don't especially like the insinuation that people only dislike the movies for some venal motive. Isn't it really rather the case that Tolkien Scholars are by their very nature purists?

I don't like it either, for two very good reasons. Firstly, those involved with the Estate are in general very nice people, and those of us in the Tolkien Society will vouch for that - they are friendly, open and generous. And membership of the Tolkien Society is hardly like the ruddy Freemasons, anyone can join for twenty quid.

The other reason is that a lot of long-time Tolkien fans feel a little bit annoyed that the work of this man, the lifetime's work, is subject to being picked over like the corpse of an Orc. We live in a world where nothing is left unexploited for the great god of Mammon, even the water we drink is costed and turned into profit. It makes a lot of fans a little bit sick to think of people like Peter Jackson sitting in his calf leather armchairs, swigging ruddy Chateauneuf De Pape and eating truffles off the back of a slave boy or something because he's made a profit out of the literature we've quietly loved for years before he'd even heard of it.

Fine, he can make his films, they will no doubt be enjoyable and I for one am looking forwards to collecting some more action figures, but he certainly cannot expect us not to criticise and discuss what we think he's doing wrong. And to be fair - I think he expects us to carp at him. He needs to bear that in mind before considering writing about Gandalf turning the Spiders of Mirkwood into zombies and having Thranduil fling a lawnmower at Thorin.

[Sauron the White]

Lalwende - I do understand some of your ire. But just to be clear, Pater Jackson did not make a profit off the literature written by JRRT. His money came from making three movies based on the work of JRRT. There is a difference. You make it sound like Jackson did what Ace Books did and ripped off Tolkien to reap undeserved profits.

[William Cloud Hicklin]

My point is that it is not clear what rights are owned by the Tolkien Estate and what rights are owned by Zaentz and New LIne when it comes to material outsideofthe actual HOBBIT and LOTR stories.

Why? Because JRRT included a wealth of historical information in his Appendicies which were part of LOTR - ROTK and sold as film rights in 1969. Eight years later, the book length SILMARALLION is published and now there are two accounts of these events.

Many people here, including Mr. Hicklin, speak as if they have a Supreme Court decision in front of them clearly spelling out in great detail what can be done and what cannot be done with these film rights. This is not the case in reality. There is much grey area .

There is NO grey area. There are no overlapping rights. There is no ambiguity, except in your fevered imagination. NONE.

It's amazingly simple. Zaentz/New Line can use material found between the covers of the Lord of the Rings. Period. That's it. The existence of other Middle-earth material changes nothing- they have no rights to it. PJ is constrained to doing what he did with, say, the (EE) Gladden Fields- stick to the very brief LR account without any reference at all to the detailed UT narrative of the same event.

Christ, this is (for a lawyer) as maddening as it is for a paleontologist confronting some no-evidence-for-evolution Fundamentalist.

[Sauron the White]

So there is no overlapping of any material contained in LOTR and SIL?

[William Cloud Hicklin]

AAAARRRGGGGHHHHHHH!!!

I'm sorry, but my head is becoming extremely sore from repeated collisions with a brick wall.

Let's try this: Imagine a Venn diagram with two overlapping circles, like the MasterCard logo. Label one 'Lord of the Rings' and the other 'Silmarillion.'

Now, New Line gets everything inside the LR circle, including the overlapping portion. New Line gets nothing outside it, including the remaining portion of the Silmarillion circle. Clear? I hope so.

However, let's be clear about what lies inside that overlapping area. One can't claim that because Aragorn tells a brief version of the Lay of Leithian below Weathertop, that thereby every element of the subset 'Beren and Luthien' is thereby moved into the overlapping area. Only the specific elements and incidents Aragorn relates fall into that zone. No Huan the Hound, no Nargothrond or Finrod, no Hunting of the Wolf, no overthrow of Taur-in-Gaurhoth: all those elemenmts remain in the non-overlapped part of the Silmarillion circle, and off-limits.

[Sauron the White]

Allow me to be just as clear in the hope we can better mutually understand each others positions.

Based on what you know, both of the Tolkien film rights situation, the writings of JRRT, the holdings of the Estate, and the law itself, could the current film rights holders of both THE HOBBIT and LOTR make a film in which the following happened or is depicted under the title Tales of the Silmarallion:

- Feanor is shown to be the greatest of the Eldar making the Silmarils filling them with the radiance of the Two Trees
- Morgoth stealing the Silmarils
-Morgoth destroying the Two Trees by poisoning them
- Morgoth retreating to his great fortress of Thangorodrim with the Silmarils
- Feanor leading his people into exile
- War between the Eldar and Edain against Morgoth and his forces
- the defeat of the Eldar and Edain
- the union of Beren and Luthien and their lineage
-Beren and Luthien steal a Silmaril from the Iron Crown of Morgoth
-Luthien becomes mortal and gives birth to Dior
-the city of Gondolin with Turgon as its king
-the wedding of Earendil to Elwing
-the overthrow of Morgoth
-the ship of Earendil is set into the heavens

That would seem more than enough for one film.

Would the current rights holder of film rights to LOTR have the right to include those events or character depictions?

You asked me to be specific and thats really specific.

[William Cloud Hicklin]

Theoretically, it could be done (although use of the title 'silmarillion' would create trademark problems independent of copyright concerns)

However, your hypo film could not include-

-the Music of the Ainur
-any description of Valinor
-any Valar save Varda and Morgoth
-the awakening of the Elves
-the House of Finwe aside from Feanor
-any details of the Darkening, such as Ezellohar or the Ring of Doom, or Ungoliant's presence (Ungoliant's existence as an ancestor of Shelob could be deduced, but no tale or incident involving her whatsoever)
-any mention of the Oath or the Kinslaying
-any description of Thangorodrim
-the founding of Gondolin, or Turgon's ancestry
-the founding of Nargothrond or any description thereof
-Any of the Five Battles of the War of the Jewels
-Fingolfin's duel with Morgoth (identifying the original Grond as 'the Hammer of the Underworld' doesn't go any further than that)
-any part of the Tale of Turin
-any part of the Tale of Tuor
-any part of the Tale of Tinuviel, save the specific elements related by Aragorn
-any part of the Fall of Doriath or the sack of the Havens; indeed no mention of the Havens at all
-any part of the Tale of Earendil except for whatever can be squeezed out of Bilbo's Song

and on, and on, for 400 pages of the Silmarillion.

So you're trying to write a film script derived entirely from a one-paragraph synopsis. In other words you'd be in the same situation as the rather funny attempts in various fan-newsletters, pre-77, to predict The Sil's contents.

Likewise, a film of the Fall of Numenor could be cobbled up from Appendix B, but no mention at all could be made of the details found only in The Akallabeth, like the Temple of Morgoth or the voyage of Amandil.

[Sauron the White]

WCH - thank you for this answer

Theoretically, it could be done (although use of the title 'silmarillion' would create trademark problems independent of copyright concerns)

I take it then that your answer to my question is YES.

Regarding the title - the Appendicies - A - state that those incidents and characters come from The Silmarallion. I would state that my title merely says where I obtained this material. But fine.

Thank you for telling me what I could not put into the film. I feel I have more than enough on the plate for a full film with the list as I provided. And I appreciate your concern about the difficulties of making a film from a short synopsis. But that is sometimes how films are sold. I understand that one of the most beloved films of all time came from a simple greeting card.

Next question: Could the Tolkien Estate, sell the film rights to THE SILMARILLION to a producer creating a film of its tales including the following

- Feanor is shown to be the greatest of the Eldar making the Silmarils filling them with the radiance of the Two Trees
- Morgoth stealing the Silmarils
-Morgoth destroying the Two Trees by poisoning them
- Morgoth retreating to his great fortress of Thangorodrim with the Silmarils
- Feanor leading his people into exile
- War between the Eldar and Edain against Morgoth and his forces
- the defeat of the Eldar and Edain
- the union of Beren and Luthien and their lineage
-Beren and Luthien steal a Silmaril from the Iron Crown of Morgoth
-Luthien becomes mortal and gives birth to Dior
-the city of Gondolin with Turgon as its king
-the wedding of Earendil to Elwing
-the overthrow of Morgoth
-the ship of Earendil is set into the heavens

If the Estate sold those rights, would a film maker have the legal right to make that film?

[William Cloud Hicklin]

If the Estate sold those rights, would a film maker have the legal right to make that film?

Ah, I see where you're going. You're suggesting that, were the Estate hypothetically to sell the film rights to The Silmarillion, then Zaentz would be able to attack that sale, or rather part thereof, on the basis that he already owns the film rights to specific incidents included in the Appendices to LR.

Possibly so.

However

A) it ain't gonna happen

B) the issue turns on whether JRRT sold UA an exclusive or non-exclusive license. If the latter, the Estate is free to sell another license to somebody else

C) the issue also turns on whether the JRRT/UA contract explicitly excluded the Elder Days- which well it might. Tolkien was very protective of that material.

(B) and (C) of course are irreducible unknowns, so long as the actual contract remains secret. And the whole exercise is moot, given (A).

[Mithalwen]

Originally Posted by Sauron the White

Mithalwen... you said this



I believe your information is not accurate. I have a US first edition of ROTK published in 1955 and it has the appendicies as part of the book. I checked that edition before I posted this thread this morning just to make sure.

To clarify ..having checked it was the index that was missing - the appendices delayed publication but were included.

However it may be worth adding that it seems that there was a great disparity in English and US copyright legislation else the rip off edition would not have been possible.

[Sauron the White]

Mr. Hicklin... you previously told me this

There is NO grey area. There are no overlapping rights. There is no ambiguity, except in your fevered imagination. NONE.

You have been fair and good enough to walk through the previous exercise with me regarding the rights held by the currents LOTR film rights holder and rights held to future films in the hands of the Estate. The films I presented you with were in made up of the same events.

Do you still insist that there are no overlapping rights?

Regarding the second half of your post:

However

A) it ain't gonna happen

B) the issue turns on whether JRRT sold UA an exclusive or non-exclusive license. If the latter, the Estate is free to sell another license to somebody else

C) the issue also turns on whether the JRRT/UA contract explicitly excluded the Elder Days- which well it might. Tolkien was very protective of that material.

allow me to address each -
A) My rather limited abilities do not enable me to look into the future. As such I will leave that to those who can give me tomorrows lottery numbers today.
B)YES - however do you think the right to make films from LOTR is an exclusive license - and I realize you are not privvy to the contracts. I would have to believe that it is an exclusive license but I would be willing to be proven wrong.
C) In the absence of proof for such a claim, we have to proceed as if no such exclusion existed. But again, if you have proof I would be willing to be proven wrong.

Regardless, none of that has any impact on your statement chastising me and questioning my mental processes for stating that there were areas of overlap in the rights held by each party. I believe that has been clearly demonstrated with your able assistance.

[davem]

Now, although I much prefer to contribute to this discussion by way of withering put downs, I did just look up Tolkien Enterprises on Wikipedia:

Tolkien Enterprises (TE), a trading name for the Saul Zaentz Company, owns the worldwide exclusive rights to certain elements of J. R. R. Tolkien's two most famous literary works; The Lord of the Rings and The Hobbit. These elements include the titles of the works, the names of characters contained within as well as the names of places, objects and events within them, and certain short phrases and sayings from the works.

TE licenses these rights out to other companies for use as trademarks and service marks. It also owns the rights to certain copyrightable elements of these two works, such as film and stage productions. Tolkien sold these rights to United Artists in 1968, who in turn sold them to Zaentz in 1976.

[Sauron the White]

Thank you davem for that information. I guess now the $500 per hour attorneys can hold forth on what that means.

[davem]

Here also is a list of "all the character, places, items, etc. which are copyrighted by Tolkien Enterprises."

http://tolkiengateway.net/wiki/Tolki...%27_copyrights

No mention of the words/names 'Silmarillion', 'Feanor', 'Turin', 'Numenor', or 'Valar'.

[Mithalwen]

Well clearly they licensed the musical (it says so in the programme apart form anything else), the LOTR character names are their trademarks which is largely protecting merchandise (though what attraction those creepy dolls that resemble the actors only enough to disturb is I don't know - they must make some money on them beofre they end up in TK maxx).

The main implication for any hypothetical film based on the other works would be that they wouldn't be able to call Elrond (and presumably Glorfindel)
Elrond and Glorfindel without the permission of T-Enterprises and coughing up the money. Tyoical that these are among the few characters in the whole shebang with just the one name.... I don't think you can trade mark dictionary words so they could probably use Blue Mountains and so forth butmaybe not Rivendell.

Now that I think of it I recall that the Elf who fulfilled the the role of Gildor wasn't called Gildor in the musical but Elranien(wandering elf) - which may suggest that not all the names are trademarked.

[William Cloud Hicklin]

No, StW, there are no overlapping rights. There may be bifurcated rights, which are a different thing.

[Sauron the White]

davem ... thank you for providing that list. I did access it and it says this right at the top

The list was on their website some years ago and is by no means official.

So it may or may not mean anything as it pertains to this discussion.
-----------------------------------

WCH -

I hate it when otherwise good discussions come down to the old definition of terms. I remmeber my years on the debate team in college where they taught us that defining terms in your favor was one of the the easiest way to win a debate.

Despite our earlier exercise where it became very very clear that the film rights held by Zaentz and New Line and the film rights held by the Estate could well involve exactly many of the same things, you still insist that

No, StW, there are no overlapping rights. There may be bifurcated rights, which are a different thing.

It would have been a positive step towards furthering your position if you could have explained what you believe the two are and why they are different. But you simply made the statement like so much being handed down from On High. Which is of course your right.

So allow me to take out my trusty three volume copy of Websters Third International Dictionary (1981) and quote for you regarding the word OVERLAP as found on page 1,608.

among the offerings in a long list of offerings are

to extend over and cover a part of
to have something in common with
coincide in part with
to occupy the same area in part with

English is my first language. Heck, its my only language. I understand what overlap means and it applies perfectly here.

The only way it would not be if one of your A, B, C, options were true and UA was granted exclusive rights to everything from cover to cover of LOTR. Then could could make a case that it is the Tolkien Estate itself which has no right to use any of those things and in that case, an absence of rights on their part would mean no overlap as I claimed. I do find it hard to imagine that would have occured. However, I am not taking that position here without detailed knowledge of that legal arrangement.

My entire argument is based on the assumption that Zaentz and New Line own rights to the things in the Appendicies and the Estate owns the rights to what is in the book THE SILMARALLION. If someone can show factual information that shows either party does not have these rights, then my assumption changes.

---------------------------------------
Mithalwen .... the absence of the index in the First Editions of LOTR is true as you discovered. It does not however have and impact on my argument regarding these rights.

[William Cloud Hicklin]

StW:

You do understand the difference between primary and derivative rights, don't you?

[Sauron the White]

Just to make sure we both are on the same page, explain it to me like I am a four year old ..... as Denzel Washington once said.

[Sauron the White]

Nerwen... in a previous post you asked this question of me. I am sorry but I did not give you a speedy answer. Here is what you asked of me

Are you suggesting that lawyers for Tolkien Estate might claim anything which is treated in both The Lord of the Rings and The Silmarillion violates the copyright on the latter? I don't think they'd get very far.

I make no claims regarding the copyright on SIL or LOTR. Both of those books were legally copyrighted under the law and as such have protections.

I do say that because of the timeline of the various publications and selling of film rights there are now problematic areas due to overlapping rights.

I refer you to the timeline in my earlier post showing that LOTR with its Appendcies was copyrighted in 1955 and sold as exclusive film rights to UA in 1969. After the death of JRRT, his son Christopher had a book length SIL published in 1977 and its copyright was registered at that time.

This created a situation where the many characters, settings and events found in the Appendicies and many of the same plus more are also found in the book length SIL. UA, and then Saul Zaentz, and now New Line Cinema, hold the film rights to LOTR and that includes the Appendicies with all the mention and description of First Age Events.

I contend that, and believe I have demonstrated that there are now overlapping rights regarding this material. It places the current film rights holder in a very tricky position regarding the Appendicies material.

In exchange with Willaim Cloud Hicklin yesterday, we agreed that New LIne could make a film which contained the following events and characters

- Feanor is shown to be the greatest of the Eldar making the Silmarils filling them with the radiance of the Two Trees
- Morgoth stealing the Silmarils
-Morgoth destroying the Two Trees by poisoning them
- Morgoth retreating to his great fortress of Thangorodrim with the Silmarils
- Feanor leading his people into exile
- War between the Eldar and Edain against Morgoth and his forces
- the defeat of the Eldar and Edain
- the union of Beren and Luthien and their lineage
-Beren and Luthien steal a Silmaril from the Iron Crown of Morgoth
-Luthien becomes mortal and gives birth to Dior
-the city of Gondolin with Turgon as its king
-the wedding of Earendil to Elwing
-the overthrow of Morgoth
-the ship of Earendil is set into the heavens

All this is mentioned directly in the Appendicies and it says it is from The Silmarallion. So the current film rights holders could make a movie about all this.

However, all of those events are also mentioned and discussed further in the book length SIL which the Tolkien Estate retains film rights and Mr. Hickline says they will never be sold.

The publication of the book length SIL was a perfectly legal action and well within the rights of CT and the Estate. No dispute there. But it does create a very practical and thorny problem for the current film rights holders.

If New Line or a future designee of Saul Zaentz were to exercise their legal rights and make a movie of those events from the Silmarallion found in the Appendicies, they now have the unique problem of their work being held up to ridicule because another work presents a different picture of those events, settings and characters. And if they dare to refer to the book length SIL and use any of that material to make sure they get it right, then they run the very real danger of being accused of violation of the SIL copyright and using rights they did not have.

All this because the film rights were sold at a time when no book length SIL had been published or legally copyrighted. There was no competing book length SIL in existence that had been legally copyrighted when the film rights were sold. All that came years afterwards.

It puts the current rights holders in a position of damned if they do and damned if they do not. If they make a film and ignore the actual book length SIL and fill in all the blanks on their own from the Appendicies, they risk ridicule, derision and potential damage to their ability to market and do business with their product because "its not the real thing. You made most of this up and we can prove it by comparing the real book length SIL to your movie".

That situation did not exist when the film rights were sold in 1969. Now it does.

The publication of the SIL has greatly compounded the situation and created overlapping rights. I have said that the current rights holders could make a case that they now have a property which has been diminished.

We now have a situation where two more films were announced this week and at least one will be made up of material taken from the Appendicies.

I have said that these two parties, should work this out potential problems before this happens.

That will not happen. Both parties would much rather beat their respective chests and claim that they own certain rights and the other side does not and then proceed independently of the other. And for the next five to ten years we will again be debating, disputing and arguing about what was done, was it right and legal, did they go too far and all the same stuff that goes nowhere.

[Nerwen]

Originally Posted by Sauron the White

It puts the current rights holders in a position of damned if they do and damned if they do not. If they make a film and ignore the actual book length SIL and fill in all the blanks on their own from the Appendicies, they risk ridicule, derision and potential damage to their ability to market and do business with their product because "its not the real thing. You made most of this up and we can prove it by comparing the real book length SIL to your movie".

That situation did not exist when the film rights were sold in 1969. Now it does.

The publication of the SIL has greatly compounded the situation and created overlapping rights. I have said that the current rights holders could make a case that they now have a property which has been diminished.

Ah, I think I understand where you're coming from now. The publication of The Silmarillion didn't make any difference to the ownership of the film rights to the LotR Appendices– what it did is make those rights (arguably) not worth having. Is that it?

[William Cloud Hicklin]

All this because the film rights were sold at a time when no book length SIL had been published or legally copyrighted. There was no competing book length SIL in existence that had been legally copyrighted when the film rights were sold. All that came years afterwards.

It puts the current rights holders in a position of damned if they do and damned if they do not. If they make a film and ignore the actual book length SIL and fill in all the blanks on their own from the Appendicies, they risk ridicule, derision and potential damage to their ability to market and do business with their product because "its not the real thing. You made most of this up and we can prove it by comparing the real book length SIL to your movie".

That situation did not exist when the film rights were sold in 1969. Now it does.

Again, Sauron, the copyright in the broader 'Silmarillion' came into existence as that work was written, not in 1977. Its eventual date of publication makes *no difference whatsoever.*

To follow on from mine hereinabove, 'derivative right' is the right to adapt or transform a creative work from one medium to another. In this case from book to film. Now, the Copyright Act makes a very important point (one of those which courts get very exercised over):

The copyright in a compilation or derivative work.....does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

*No* exclusive right in the pre-existing material. Derivative rights are *fixed*. they do not, ever, expand; in this case, the derivative rights to make movies about Feanor or for that matter Aragorn do not increase if Tolkien-and-heirs make use of those characters in another book.



You complain that the Silmarillion being published somehow decreased the commercial value of Zaentz' rights. Well, in the first place, copyright law only concerns itself with questions of ownership (intellectual *property*, right?) The market is the market. Zaentz today owns precisely what UA did in 1968. No more, no less. The value of that property is irrelevant.

Let's look at it this way: suppose you buy 100 shares of Acme Corp (purveyors of fine malfunctioning explosives since 1949). Subsequently, Acme makes another issue of common stock, which dilutes the market and drives the price of your shares down. Do you have a claim? Not a prayer. You still own 100 shares of Acme, which is exactly what you bought.



The situation poor little multizillionaire Zaentz finds himself in (besides being far richer than the whole Tolkien family put together) is no different at all from any producer who buys derivative film rights to a novel, including the characters therein, and subsequently the author publishes a sequel. Sure, that diminishes the inchoate value of whatever bogus movie sequel might have been planned. Tough.

Or to take a real-world example, where the film-book relationship is reversed: George Lucas' decision to produce the second set of Star Wars films contradicted and thus lessened the 'value' of parts of Timothy Zahn's (and others') Star Wars novels. Do you think Zahn has a claim?


One final shot: It's also worth pointing out that the 'value' of Zaentz' film rights in a one-paragraph synopsis of the Silmarillion was very close to nil, until Christopher Tolkien made The Silmarillion a number-one bestseller.

[Sauron the White]

from WCH -

Again, Sauron, the copyright in the broader 'Silmarillion' came into existence as that work was written, not in 1977. Its eventual date of publication makes *no difference whatsoever.*

This is not at all what I have been taught copyright to mean. Could you please cite some law or legal language which supports this position which is quite a bit broader than anything I have ever read or understood?

Based on what you posted plus what I read last night in researching the idea of derivative rights - why is not the book length SILMARALLION a derivative of the previously published and legally copyrighted shorter work found in LOTR?

You complain that the Silmarillion being published somehow decreased the commercial value of Zaentz' rights. Well, in the first place, copyright law only concerns itself with questions of ownership (intellectual *property*, right?) The market is the market. Zaentz today owns precisely what UA did in 1968. No more, no less. The value of that property is irrelevant.

Does Zaentz have what he had in 1969? Then he could well make a film of those Silmarallion events, fill in the blanks, and go on his merry way. Years later, CT caused the book length SIL to be published not giving the world a different picture of those events. Now Zaentz owns a property which has been impacted and its usage is made problematic or impossible by the subsequent publication of the larger work.

Question: if I sell you exclusive film rights for a 1,000 word short story can I then wait a few years, write a novel length version of the story including many of the same characters, scenes, and events and sell that version to someone else in film rights? Would not the appearance of a far more detailed book length version compound and greatly impact my efforts to use the rights I have already purchased from you?

Of course, I could still do it. But your subsequent actions will cause my legal usage of those original rights to be ridiculed, derided and castigated because they are different that what people have read in the fuller treatment.

That reality materially diminishes the rights you sold to me.

*No* exclusive right in the pre-existing material.

This gets back to you showing me that your broad and expansive definition of copyright is the one that applies here. Why is not the 1977 SILMARALLION, with its registered legal copyright, a derivative of the LOTR copyright in which that material was legally copyrighted for the first time (that I am aware of)?

One final shot: It's also worth pointing out that the 'value' of Zaentz' film rights in a one-paragraph synopsis of the Silmarillion was very close to nil, until Christopher Tolkien made The Silmarillion a number-one bestseller.

That is your opinion and I respect that. But it is far from provable fact. Many successful movies have been made from far less than that synopsis found in the Appendicies. Many hit movies are simply somebody originally pitching an idea in one or two sentences - "THE OLD DARKHOUSE on a spaceship in space" and we get ALIEN.

The fact is this - as we discovered yesterday, when you look at the listing of events found in the Appendicies, there is more than enough to make a movie.

Let's look at it this way: suppose you buy 100 shares of Acme Corp (purveyors of fine malfunctioning explosives since 1949). Subsequently, Acme makes another issue of common stock, which dilutes the market and drives the price of your shares down. Do you have a claim? Not a prayer. You still own 100 shares of Acme, which is exactly what you bought.

I understand your point. I will spare you the "this is this" speech. Lets look at your comparison and give it some thought. When I buy the stock from Acme, I do so with the full knowledge and understanding that it is common practice to reissue other shares of stock and this is what companies do on a regular basis. It is part and parcel of the business and is common practice in that business.
It is something I should know, or something my broker should make me aware of along with the usual risks of buying stock.

When I purchase the film rights to a property, I would normally expect that I own the film rights exclusively to all that is in the original source that I am purchasing. It is not part and parcel of that business for the seller to turn around and rewrite it, copyright it and create a whole new property which has the very real effect of causing me some very real problems, difficulties and reduces what I can now do with it without creating even more problems and difficulties.

I believe your Acme stock comparison does not fit. And thus we come back to the reason for Robert DeNiro and his famous quip.

[Nerwen]

Originally Posted by Sauron the White

from WCH -
This is not at all what I have been taught copyright to mean. Could you please cite some law or legal language which supports this position which is quite a bit broader than anything I have ever read or understood?

STW, copyright exists from the moment a work is created. That's one of the basics.

Here is a link which may answer some of your questions: http://www.publaw.com/cfaqs.html

Originally Posted by Sauron the White

Question: if I sell you exclusive film rights for a 1,000 word short story can I then wait a few years, write a novel length version of the story including many of the same characters, scenes, and events and sell that version to someone else in film rights? Would not the appearance of a far more detailed book length version compound and greatly impact my efforts to use the rights I have already purchased from you?

Of course, I could still do it. But your subsequent actions will cause my legal usage of those original rights to be ridiculed, derided and castigated because they are different that what people have read in the fuller treatment.

That reality materially diminishes the rights you sold to me.

Indeed... but that doesn't necessarily mean you'll get compensation, which is what your argument seems to turn on– unless I've misunderstood it again. (I'm finding the point-of-view shift in that passage rather confusing.)

And no, The Silmarillion is not a derivative work.

[Sauron the White]

WCH
Again I invoke the name of Denzel Washington and ask you to explain this to me like I am a four year old.

You keep coming back again and again to this

Again, Sauron, the copyright in the broader 'Silmarillion' came into existence as that work was written, not in 1977. Its eventual date of publication makes *no difference whatsoever.*

And it seems to be the cornerstone of much of your reasoning.

I do understand that the term COPYRIGHT originally simply mean that, you as the author, had the right to copy comething ..... ergo - the right to copy/copyright.
And that is certainly one meaning of the term.

I read the information in the link provided by Nerwen which said this in part:

When is my work protected?

Your work is under copyright protection the moment it is created and fixed in a tangible form so that it is perceptible either directly or with the aid of a machine or device.

As a layman without benefit of Law school, but one who taught high school Government for 33 years, it has been my belief that there is a difference in that meaning of the word COPYRIGHT and the registered or legal copyright which is provable and enforcable in court and comes with certain legal rights and benefits that go far beyond simply the ability to write and copy something.

Before we go an further I would appreciate it if you could clarify that for me so we can both be reading from the same page.

[davem]

Originally Posted by StW

Now Zaentz owns a property which has been impacted and its usage is made problematic or impossible by the subsequent publication of the larger work.

Question: if I sell you exclusive film rights for a 1,000 word short story can I then wait a few years, write a novel length version of the story including many of the same characters, scenes, and events and sell that version to someone else in film rights? Would not the appearance of a far more detailed book length version compound and greatly impact my efforts to use the rights I have already purchased from you?

Of course, I could still do it. But your subsequent actions will cause my legal usage of those original rights to be ridiculed, derided and castigated because they are different that what people have read in the fuller treatment.

Still trying to work out what your point is, but from this it seems that you're worried about Saul Zaentz/putative maker of a movie based on the synopsis in Appendix A being embarrassed by not being able to use subsequently published works & having to make stuff up.

They certainly could find themselves embarrassed - if they decide to make a movie based on that synopsis & invent new material. Of course, they don't have to make such a movie, & thus can avoid any such potential embarrassment. But the real point you're missing is that nothing in the synopsis contained in LotR is contradicted by the published Silmarillion. The only problem (if red faces are to be considered a problem) would arise if they attempted to expand on the matter they own.

The fact is that any film-maker licenced by Zaentz is as free now to put together a movie script based on that material in LotR, & fill in any gaps, as they were before The Sil was published. The only problem is that we now have the 'official' version. Now, its quite possible that the audience for such a movie either would not care that it is not Tolkien's version of the story, & may even prefer it over Tolkien's work. Whatever, the only thing that has changed is that we now know what Tolkien intended, & therefore we would know if a movie maker invented a new version. Zaentz has the same rights now as he purchased from UA.

What you seem to be getting het up about is the possibility that Saul Zaentz/potential movie maker may end up looking a bit silly. And, speaking for myself, all I can say to that is 'I think you have me confused with someone who cares."

[William Cloud Hicklin]

Sauron, do you actually read my posts, or do you merely skim them and fly off half-cocked?



To quote the Copyright Act,

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, *motion picture version*, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted....The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

You talk as if Zaentz 'owns' the Appendices to the Lord of the Rings. He does not. He owns a license to make motion pictures based on The Lord of the Rings. That is a derivative right, which implies no right whatsoever in the underlying original work.

You might try to assert that (all within the primary copyrights of the author and his heirs) that the 1977 Silmarillion is somehow a 'derivative' of the Synopsis in the Appendices. But 1) this is not so; the Synopsis is an abridgemant or 'derivative' of the pre-existing Silmarillion, not the other way around; and 2) the question is irrelevant, because you are talking about the primary copyright in the written works, which Tolkien and his heirs have always owned, and upon which Zaentz has no claim at all.

Once and for all: copyright is *not* created by publication nor registration. I appreciate that you did some research last night: but give me credit for havin' done bin to lawyer school and everthin', and I might just possibly have learned more about the topic than "anything [you] have ever read or understood."

Here are relevant excerpts from the Act:

On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and came within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title

A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work.

and, reinforcing that copyright does not come into being dependent upon registration:

(a) REGISTRATION PERMISSIVE.—At any time during the subsistence of copyright in any published or unpublished work, the owner of copyright or of any exclusive right in the work may obtain registration of the copyright claim by delivering to the Copyright Office the deposit specified by this section...

+++++++++

I should like to reiterate one of the above cites in a slightly different context:

....and where the work has been prepared in different versions, each version constitutes a separate work.

Got that? Each successive version Tolkien (or Christopher) made of the Elder Days material is a separate work. Zaentz owns film rights to only one of those separate works- the one-paragraph precis in the Appendices. The Silmarillion, from the Lost Tales to the 1977 text, comprises several separate works each and every one of which is completely free and clear of any claim by Zaentz, except that LR synposis.

+++++++++

You try to distinguish my stock-market example because apparently everybody knows stocks go up and down in value. Guess what? So do film properties. UA paid a quarter-million for the LR film rights, and unloaded them eight years later for twenty thousand: they took a bath. No asset is ever purchased with an implied warranty of retaining value. It's called 'risk'.

Your counterexample regarding a novel-length expansion of a short story: "Would not the appearance of a far more detailed book length version compound and greatly impact my efforts to use the rights I have already purchased from you?"

Yes, it would. Tough cookies.

Your purchase of derivative film rights places no restriction or limitation on the holder of the underlying primary copyright in any way, shape or form.

There might, hypothetically, be some sort of colliding interests *if* the film rights to The Silmarillion were ever to be sold. But on that day I reckon most of us will be far too busy keeping winged hogs from crashing through our upstairs windows to worry about it.

And I'm not especially convinced that Zaentz would have much of a claim even then, since courts will apply the contract-law concept of 'the intent of the parties', and might very well conclude that what UA intended to buy and thus did buy was the story The Lord of the Rings, not an ancillary sketch of an unpublished work in which nobody, certainly not UA, had any interest in at the time.

And, again, the '77 text is a separate work, with a separate primary copyright, which Zaentz' derivative license cannot affect, limit nor constrain in any way. Could Orson Scott Card have sold the film rights to his short story 'Ender's Game' to Studio A, and then sold the film rights to the novel 'Ender's Game' to Studio B? Quite possibly. Were Beethoven subject to modern copyright law, I see no problem with him selling publishing rights to 'The Creatures of Prometheus' to Breitkopf und Haertel, and then selling pub rights to the 3rd Symphony to Schirmer, notwithstanding the fact that the finales of the two works are based on the identical theme.

[William Cloud Hicklin]

As a layman without benefit of Law school, but one who taught high school Government for 33 years, it has been my belief that there is a difference in that meaning of the word COPYRIGHT and the registered or legal copyright which is provable and enforcable in court and comes with certain legal rights and benefits that go far beyond simply the ability to write and copy something.

Then you misunderstand. "Copyright" in the first sense is the author's EXCLUSIVE right to create copies, and the right to prevent anyone else from doing so. Ergo it is indistinguishable from the 'second' sense. The rights and benefits are there from the first. All registration does is to ease the copyright-holder's path to the courthouse door.

I am currently engaged in editing certain unpublished Tolkien manuscripts from Marquette. Hoever, unless and until the Estate approves my edition for publication, I am legally prohibited from disclosing a single word of those texts. They are absolutely, positively copyrighted materials. In fact, they are protected more stringently than published material, since "Fair Use" explicitly does not apply to unpublished works.