Film Rights to First & Second Age

[Sauron the White]

davem .. believe me my friend I never confused you with someone who cares.
But you did say this:

Zaentz has the same rights now as he purchased from UA.

Perhaps he does. But the ability to utilize those rights has been diminished by the actions of CT and the Estate in putting before the public a competing and more complete version of The Silmarallion. Is that ethical for the Estate, or anyone for that matter to engage in a business practice that has that effect without some degree of working things out with the person who held those rights before they were diminished?

[Nerwen]

Originally Posted by Sauron the White

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.

Sauron, I guess you didn't have time to read the whole page to which I gave you the link. It explains this issue pretty clearly.

[davem]

Originally Posted by Sauron the White

Perhaps he does. But the ability to utilize those rights has been diminished by the actions of CT and the Estate in putting before the public a competing and more complete version of The Silmarallion. Is that ethical for the Estate, or anyone for that matter to engage in a business practice that has that effect without some degree of working things out with the person who held those rights before they were diminished?

CT edited together The Sil for publication because he wanted to make that material available to readers, & I daresay that thoughts that it might cause a problem for Saul Zaentz never crossed his mind.

You seem to have left the 'legal' question behind & are now arguing 'ethics' & asking for sympathy for poor Mr Zaentz - the man who is ultimately responsible for inflicting the Bakshi, Rankin-Bass & Jackson farragoes on us??

[Mithalwen]

Originally Posted by Sauron the White

-----------------------------------

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.

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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.

I never said it did.... and how can one discuss the law of intellectual copyright without definition of terms ..?

Though I' m not a lawyer, half my family are and I have worked as a legal secretary/admin, and having seen my erstwhile employers eyes light up at the prospect of the billable hours they could clock up in dissecting knotty problems in a different field (they were licensing lawyers and the lunch at which we discussed exactly what constituted nude dancing was one of the more entertaining aspects of my time with them!), I would want to be very sure that the apendices were part of the rights deals before coughing up cash for a fim. I think there is a good chance they would not be included since they are appendices to the LOTR not an actual part of LOTR but I don't have the contract and I am not an IP lawyer.

Anyway I will leave it there while I still have the will to live ...

[William Cloud Hicklin]

"Ethics" and "Saul Zaentz" I never thought to see in the same sentence.....

"Zaentz can't dance but he'll steal your money.."
--CCR

Poor baby- parlayed a $20k investment into a quarter-billion free and clear without actually creating a bloody thing.


He spent his 20 grand on spec- it was a shrewd investment. But investment carries the possibility of both profit and loss. That's the way it works.

And you want to complain it's 'unethical' for the author and his family to publish the work he spent sixty years creating, just because Zaentz bought film rights to a footnote????

[Morwen]

Originally Posted by Sauron the White

davem .. believe me my friend I never confused you with someone who cares.
But you did say this:



Perhaps he does. But the ability to utilize those rights has been diminished by the actions of CT and the Estate in putting before the public a competing and more complete version of The Silmarallion. Is that ethical for the Estate, or anyone for that matter to engage in a business practice that has that effect without some degree of working things out with the person who held those rights before they were diminished?

You agree that Zaentz has the same rights now that he always had. You have not put forward any evidence to suggest that Christopher Tolkien by publishing the Silmarillion was engaged in a malicious act to try and reduce the value of those rights. In the Introduction to "Unfinished Tales" CR Tolkien discusses his reasons for publishing more of his father's work after the latter's death and in summary his reason (as I understand it) is to make available information on the "unexplained vistas" referred to in the then published work of Tolkien because many during the author's lifetime had asked for such (botanists wanting more exact descriptions of the mallorn, historians wanting information of the politics of Gondor, etc)

I don't see any onus on Christopher Tolkien to work anything out with Mr. Zaentz.

[Sauron the White]

It is going to take time to go through the responses... so one at a time, starting from the latest and working back.

from Morwen

You agree that Zaentz has the same rights now that he always had. You have not put forward any evidence to suggest that Christopher Tolkien by publishing the Silmarillion was engaged in a malicious act to try and reduce the value of those rights.

I never said that CT did anything malicious or illegal or with an intent to do any harm or damage. Just the opposite. I stated that I was glad he collected the papers into THE SILMARALLION and glad it was published. However, even in the free exercise of ones rights, there can be unforeseen consequences that damage others. That is what we have here. Zaentz may indeed have on paper the same rights that he always had - BUT - and its one huge BUT - the value of some of it - the sections describing the events of The Silmarallion in the Appendicies - have been diminished. It is now going to be nearly impossible for him or anyone else to exercise those rights and make a movie of those events without holding themselves up to ridicule when that work is compared to the 1977 SILMARALLION book. UA, and then in turn Zaentz, purchased something and then saw part of its value rendered either less or worth nothing altogether since it is nearly impossible to realize it.

That is the point.
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WCH on Saul Zaentz and ethics

"Ethics" and "Saul Zaentz" I never thought to see in the same sentence.....

So the good luck of Zaentz in a business investment causes you to create a new standard of ethics which then applies to ..... what exactly? Or are you saying that because Zaentz hit the lottery with LOTR than he deserves to receive less than he is entitled to otherwise and thats just karma? I did not realize that there was a legal limit on return on ones investment.

and more from WCH --

And you want to complain it's 'unethical' for the author and his family to publish the work he spent sixty years creating, just because Zaentz bought film rights to a footnote????

Just like the discussion of yesterday where you misstated and exaggerated my opinion for heavens only knows what purpose, you do it again today. In its entirety, here is what I said about etchics:

Is that ethical for the Estate, or anyone for that matter to engage in a business practice that has that effect without some degree of working things out with the person who held those rights before they were diminished?

My point was short and clear. Since the publication causes the rights of Zaentz to be diminished or practically unusable, then it would a good thing to work things out between the seller and holder. I did not, do not and will not criticize CT or the Estate for causing to have published THE SIL. I am very glad that happened. CT had a perfect right to do that. However, there were some unforeseen consequences which caused previous rights holders to see their rights now in a diminished capacity. My criticism was not for the publication but for the failure to work something out in restoring to whole what was previously sold and now devalued.
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from Mithalwen

I would want to be very sure that the apendices were part of the rights deals before coughing up cash for a fim. I think there is a good chance they would not be included since they are appendices to the LOTR not an actual part of LOTR but I don't have the contract and I am not an IP lawyer.

We all seem to be in the same boat since none of us have those contrcts spelling out those rights. However, I do not see how you can feel there is a good chance that the Appendicies are not included in those rights when there has been very open discusssion from the rights holders that they are going to use material from those very same Appendicies to form much of the second upcoming film. I would have to believe that you do not go around making statements of intent like that without a firm knowledge of what your rights are.

UA purchased the film rights to both HOBBIT and LOTR in 1969. The Appendicies are part of LOTR and always have been going back to the First Editions. I would think, that in a discussion such as this, the responsibility to show that they are NOT part of what normally they would be a part of is on you. The exception to the rule needs far more defense of worth than the normal practice does.
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from davem

CT edited together The Sil for publication because he wanted to make that material available to readers, & I daresay that thoughts that it might cause a problem for Saul Zaentz never crossed his mind.

I agree with you on that. I am sure that CT never intended or wanted to hurt anyone.

You seem to have left the 'legal' question behind & are now arguing 'ethics' & asking for sympathy for poor Mr Zaentz - the man who is ultimately responsible for inflicting the Bakshi, Rankin-Bass & Jackson farragoes on us??

That involves a qualititave judgement on your part which some may agree with and others would not since it combines Zaentz with the work of those who he licensed to make films. I, for one, do not think it is fair or responsible to lump the work of Jackson in with that of the other two. But like yours, thats only my opinion and means little to nothing.

My point has been made over and over again. The publishing of the book length SIL has rendered the film rights to material found in the Appendicies - sold free and clear by JRRT - top be diminished in value if not in fact impossible to realize. This has created an area of overlapping rights to many of the events in the Silmarallion and should be worked out between the two parties.

more to come later when I read other responses

[Sauron the White]

WCW - earlier you were trying to explain to me about copyright law and how some of my beliefs were in error. And I guess some were. Thank you for that correction. The one thing that I still have a question about is on page 1 you said there is no difference in penalties or protections between a formal registered copyright and the one you said takes effect upon creation.

STW - There is a huge legal difference between a copyright and a legally registered copyright which attaches protections of law and introduces certain legal remedies and penalties. Huge difference.

WCH - No. There isn't. None. The only difference registration makes is that it's much easier to prove that the work in question existed as of that date. Period.

Then Nerwen provided a link with the copyright people which said this

Why should I register my work if copyright protection is automatic?

Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within five years of publication, it is considered prima facie evidence in a court of law.

Now that clearly mentions several advantages including eligibility for statuatory damages, repayment of attorneys fees, and the ability to use it as prima facie evidence in court. Those would seem to be some very big differences that could potentially mean a good deal more money. Would you agree?

[William Cloud Hicklin]

Procedural advantages are not the same as asserting that copyright doesn't exist pre-registration!

Perhaps you're confusing property with the value thereof. A copyright is property. Its monetary value may be enhanced by many things, including registration. That doesn't in any way alter the basic fact of ownership.

***********************************
You seem to be making a similar mistake in your 'diminished value' argument. Again, you've bypassed my essential point: As holder of the primary copyright, the Tolkien Estate is under *no* obligation to take cognizance of any 'dimunition of value' in derivative rights. Zaentz owns exactly what he always did. If it has fallen in value: tough.

Why therefore should the Estate 'settle' or 'negotiate' anything. They owe Zaentz *nothing*. He got what he paid for. Its subsequent vicissitudess in market value are his problem, not the Estate's.

[Sauron the White]

WCH - two things: First, if you go back and read my statement (and I did reproduce it for you) I said

There is a huge legal difference between a copyright and a legally registered copyright which attaches protections of law and introduces certain legal remedies and penalties. Huge difference.

Please note that I used the word "copyright" and did not deny it. I also differentiated between the type of copyright that you keep referring to and a legally registered copyright. I do believe that any fair minded person can read the quote from the Copyright site that Nerwen provided and see that there are indeed definite differences that are beyond procedural. In fact, they also are in the amount of monetary damages one can collect.

You seem to be making a similar mistake in your 'diminished value' argument. Again, you've bypassed my essential point: As holder of the primary copyright, the Tolkien Estate is under *no* obligation to take cognizance of any 'dimunition of value' in derivative rights. Zaentz owns exactly what he always did. If it has fallen in value: tough.

Why therefore should the Estate 'settle' or 'negotiate' anything. They owe Zaentz *nothing*. He got what he paid for. Its subsequent vicissitudess in market value are his problem, not the Estate's.

The owner of the Silmarillion events as told in the Appendicies sold those film rights to UA who then sold them to Zaentz. Then, the designated and rightful heirs of JRRT, CT and the Estate, caused to be published THE SILMARILLION some eight years later.

You refer to these "subsequent vicissitudess in market value" like they fell from outer space or were created by some other force like a third or third-millionith party. That is not the case. The reason for the loss of value was the publishing of THE SILMARILLION by CT using some of the same material that had already been sold as film rights.

Yes, CT had a right to publish that book. But it had the unintended (I am giving the benefit of the doubt here) consequence of causing the rightful films rights holders to now be holding a property one Tolkien sold them only to have another Tolkien put out a similar property using much of the same content.

How can you not admit this? Are you of the impression that CT or the Estate can do no wrong and regardless of what they do its never their fault?

Were it not for several million copies of THE SIL in existence for the last three decades, the lawful rights holders could make a movie including that laundry list that both you and I agree are withing their rights to include. But now, if they fill in the blanks or connect the dots between those events with material of their own invention, they risk seriously damaging their product in the eyes of the public because "its not the real SILMARALLION", "you just made all this stuff up to make money", or "you are urinating upon the real SILMARALLION". Before the publication of that book, there was no SILMARALLION to compare such a movie effort to. None.

Or they can take some chances, and fill in the blanks and connect the event dots with actual things, characters, dialogue and other material taken directly from the published SIL. They then risk a very damaging lawsuit.

Again, they are damned if they do and damned if they do not. And who put them into this position? They were sold rights by one Tolkien and had those rights diminished by another regardless of the intent and absence of malice.

So now they own something which they paid for and cannot exercise their rights without risking either public ridicule and rejection of their film, or, a serious lawsuit which could bankrupt them. Talk about your rock and a hard place. They did not put themselves there. The publication of the book length SIL did - intended or unintended - the results are the same.

[davem]

Anyone who took the time to look into it throughout the '50's & '60's would have known that Tolkien was working on the Silmarillion from the immediate post LotR period & planned to publish it - its mentioned in 'Tolkien & the Critics' - a collection of essays edited by Isaacs & Zimbardo & published in 1968 (p/b 1969) - that he was working on it, & that's not the only source of such information. Right from the appearance of RotK interest was expressed by fans of the book in this other work (read the Letters).

Thus, whether it was UA, or Saul Zaentz, if they didn't take the time to find out that this reference in RotK to 'The Silmarillion' was to an actual work in progress they are entirely at fault. I'm sure, given Tolkien's reasons for selling the film rights to TH & LotR, that if UA had offered to purchase the future film rights to The Sil Tolkien would probably have sold them too.

Whatever, when UA bought the rights to LotR & TH they could have asked about The Sil. They didn't. When Zaentz bought the rights from them he could have asked whether The Sil was likely to appear & made the decision on whether to buy the rights from UA based on that. Caveat emptor.

Now, unless you believe that Tolkien deliberately mislead UA, or UA deliberately mislead Zaentz reegarding the future appearance of The Sil I don't see what your case is.

If we're talking about 'ethics' here, can I ask whether you believe Zaentz has ever consulted the Tolkien family/Estate before he flogged the licence to produce any kind of Tolkien related trash to the highest bidder?

Sorry, but all this talk of 'ethics' is a joke - Zaentz is a businessman who made a very good deal &, while I'm sure he would be happy to play the 'ethics' card to get his mitts on the movie rights to Tolkien's other works that's all it would be - if you honestly think Zaentz would enter into an equal partnership with the Estate, or surrender part of his absolute control over the film rights to them, well, all I can say is I have the deeds to Buckingham Palace which I can let you have cheap....

[Sauron the White]

from davem

Thus, whether it was UA, or Saul Zaentz, if they didn't take the time to find out that this reference in RotK to 'The Silmarillion' was to an actual work in progress they are entirely at fault

That is the most amazing statement I have ever heard from you - and I have heard more than my share. Lets see if I get this right. UA was suppose to look into the future and know that JRRT would someday publish a book that he had been working on for decades and decades and was in little better condition that stacks of unsorted papers and notes? They were suppose to know, that somehow, someway, someday, JRRT or his heirs would undercut their investment by putting out another book with much the same material that they had paid him for? Or, they should have been aware of a rather obscure article turned into a book about the subject and been able to predict the future from that?

Amazing in the extreme.

Sorry, but all this talk of 'ethics' is a joke

It very well could be. A bad joke. But upon who? Put yourself into the position of the film rights holders.

Event #1 - JRRT toys with the idea of being deeply involved with the production of a film based on his book LOTR. However, after several years of various levels of discussion, he makes a decision between "Art or Money" and opts for money. He gets his money and UA gets the film rights to LOTR - cover to cover along with THE HOBBIT. JRRT reportedly then says its okay and is happy to make that deal because the book is unfimlable anyways. He sold somebody something that he believes will never be realized.

Event #2 - Years later, JRRT is dead but he has a legal heir Christopher Tolkien. CT takes all those stacks of unsorted papers that have been hanging around for decades and spends years of hard work on them producing a cohesive narrative that is published into a novel length book. Nearly every single event contained in the beginning of the Appendicies I is included in the book. Events to which his father sold film rights are an important part of his book.

Now the publication of the book makes the use of those film rights regarding the First Age material at best problematic and at worst impossible.

One Tolkien giveth and another Tolkien taketh away - or at least reduce the crap out of the value. And what is anyone willing to do to make the rights holder whole again and restore the value of his purchase? Nothing. Zip. Zero. Zilch.

And now you want me to feel badly about bringing up the issue of ethics?

If we're talking about 'ethics' here, can I ask whether you believe Zaentz has ever consulted the Tolkien family/Estate before he flogged the licence to produce any kind of Tolkien related trash to the highest bidder?

Your use of the word trash I imagine is defined by your own particular tastes and in no way reflect the hundreds of millions of people who bought tickets again and again to see the Jackson films making them some of the most successful and loved films ever made?

Your use of the word trash I imagine is defined by your own particular tastes and in no way reflects the opinion of professional film critics who judged each of the three Jackson films some of the better films of each year.

Your use of the word trash I imagine is defined by your own particular tastes and in no way reflects the opinion of industry professionals who gave many of their highest awards of excellence to these films?

I just want to be sure what standards you are employing here.

[William Cloud Hicklin]

So now they own something which they paid for and cannot exercise their rights without risking either public ridicule and rejection of their film, or, a serious lawsuit which could bankrupt them. Talk about your rock and a hard place. They did not put themselves there. The publication of the book length SIL did - intended or unintended - the results are the same.

Again, tough.

Zaentz did not buy the underlying copyright in The Lord of the Rings. He bought the right to make movies. The primary copyright in Middle-earth never changed ownership, and Zaentz has bugger-all room to complain about whatever Tolkien-plus-heirs do. Including 'diminishing his value.'


You asked for the Denzel Washington treat ment. Very well, then.

Copyright is a form of intellectual property. Copyright law is a branch of property law. Now, what is property? Property is any thing, real or personal, tangible or intangible, which one person may possess to the exclusion of all others. Copyright is the right of an author to reproduce his own work, and (most importantly) exclude anyone else from doing so.

Like all property, copyright is alienable: it gan be given, bartered, sold etcetera. It is divisible: one can sell a part of a copyright and retain the rest. With me so far?

If the author sells film rights, he is actually selling a license under which the purchaser has the right to make film adaptations. After selling that small piece, however, the author retains all the remaining copyright. It's still his, to do with as he wants.

That might include writing a sequel or other work related to the first work in such a way that it might be classed as 'derivative' were another person to do so. But of course the author owns his characters, incidents and settings and can do with them whatever he bloody well likes. He *owns* them: the sequel is derivative of the primary copyright, not the alienated film license. If he writes a sequel, then it is a new work, and the owner maintains absolute copyright ownership of that too.

No problems so far?

Now, notice that all of this is concerned strictly with *ownership*- it is, after all, property law. "Value" simply doesn't enter in. Property law is only concerned with who owns what, not what it's worth. If the author writes a sequel, it doesn't matter a fart in a tornado whether it might negatively affect the value of film rights he's already sold. His right is exclusive and unaffected- which is to say that the film-rights buyer of Book 1 has no claim nor restraint on the sequel just because the value of his property might be affected. It doesn't matter. The law only looks to ownership, not value.

Suppose that I own a large tract of land, and you approach me to buy one acre on the corner to build a house. We agree on a price and close the sale. (Assume no restrictive covenants or zoning laws, or verbal undertakings)

A few years later on, I elect to develop the rest of my tract as a combination hog-farm/sewage treatment plant/toxic waste dump. Would your house value be affected? Yep. Down the toilet. Would you have a claim against me? Absolutely none whatsoever. I sold you one acre and one acre you own. End of story.

Now, that's a deliberately extreme example. Let's look at another one. Suppose Hot Young Author writes a bestseller. Studio A negotiates and executes a film deal for it.

Suppose that subsequently, HY Author writes a sequel. Or an unrelated book. Or several. Whatever- but they're all rubbish. The kid is a flash-in-in-the-pan, a one hit wonder. His stock in literary circles takes a dive, he doesn't get invited to the good parties any more, and he's universally now regarded as a talentless hack. Think Barton Fink.

Does Studio A have a claim based on its now-worthless movie rights? Nope. They still own what they bought.

Or let's suppose Studio B buys film rights to the [ghostwritten] autobiography of a star athlete- let's call him, say, ummmm....OJ. After inking the deal, OJ does something damaging to his public image, like, oh I dunno, carving up his ex-wife and her friend with a knife. Public enemy number one. Plug pulled on biopic. Film rights worthless.

Does Studio B have a claim? Nope. They still own what they bought.

[William Cloud Hicklin]

Your use of the word trash I imagine is defined by your own particular tastes and in no way reflect the hundreds of millions of people who bought tickets again and again to see the Jackson films making them some of the most successful and loved films ever made?

You're overlooking those Burger King goblets and 'Lord of the Rings' Monopoly sets and all the other exploitative merchandising dreck that was churned out under licenses from Tolkien Enterprises. Yes, trash. Without regard to the movies.

[Sauron the White]

WCH - even before your previous post, we had disposed of copyright questions.
The link from Nerwen was extremely helpful as were you. Thank you.

I cannot believe you or others cannot see the problem here. In fact, you summarize the situation up in one word ---- TOUGH.

So one Tolkien in charge grants me certain exclusive rights and is paid for them. The check cashes.

Then, years later, another Tolkien comes along with the authority of the first who has now departed from this earth. The second exercises his legal rights in the publishing world but screws up my plans to use part of the rights his father sold me. Part of my investment is now unusuable or could get me into great legal or financial trouble.

Yes, that is indeed T...O....U....G...H.

And who caused it to be so tough? Not the market as you threw out there hoping it would stick like so much pasta to a wall. Not the rising oil cartel prices. Not the changes in public taste. Not the technology. Not a worldwide depression.

What caused it to be so T..O...U...G...H is another Tolkien. Remember him? He is the son of the man who thought he pulled a fast one on me for selling me an unfilmable movie in the first place.

Indeed.

[William Cloud Hicklin]

Of course now all you're arguing is IT'S NOT FAIR!

Well, what's 'fair' about claiming that a 'significant part' of the film license you bought was in fact a one-paragraph footnote completely disregarded at the time, and of no value whatsoever until this evil Junior Tolkien attached value to the Silmarillion name?

What's 'fair' about making many, many times more money off those derivative rights than the original creator of Middle-earth and his heirs have received in fifty years?

And what's 'fair' about shamelessly profiting from action figures and much worse which the original author would have committed seppuku before permitting, had he but realized that the sharpies from UA had a very, very flexible idea of the term 'merchandising?'

Cry me a river. Saul Zaentz was a two-bit no-class chiseler when he ripped off John Fogerty, and nothing's changed.

[Sauron the White]

And WCH - your imaginary tract of land, your dream of a hog farm empire, your now Failed but once Hot Young Author, your O. J. Simpson and their problems, hopes, dreams, adventures and difficulties, all have nothing to do with this. Nothing.

Again, this is this. This is not something else. This is this.

My sincere thanks to Mr. DeNiro.

[William Cloud Hicklin]

They have everything do do with This. They are illustrations of Property Law. Are you capable of abstraction?

[Sauron the White]

WCH - I do not remember making the argument based on "its not fair". It seems again that you try to create the strawman and then smite him down hard and fast while the crowd cheers your manly and heroic efforts.

By argument is based on the very simple that Party A sold something to Party B. They were paid for it. But before Party B could exercise some of their rights granted to them under the sale, Party A takes extra-ordinary additional steps which have the direct effect of rendering their investment - MADE TO Party A - now worth little to nothing since they can not use it without risking ridicule, incurring financial damages or risking a lawsuit. And who would do that suing in court you ask?
Guess who folks? Its Party A.

Now I tried to substitute legal terminology here to get past the use of hot button names like Zaentz, Jackson, JRRT, CT, Estate, and all the rest who come wrapped up in this situation.

And if anyone cannot fill in the proper names, Party A is JRRT and his heirs, Party B is UA and their subsequent rights holders.

Maybe with just the intiials its a little more less emotional.

[Sauron the White]

WCH asks

Are you capable of abstraction?

I am but a humble man striving mightily to just keep my head above water. Its all I can do to deal with real water and not get caught up in the abstract deluge.

[William Cloud Hicklin]

Well, Sauron, it seems your only remaining argument is based on 'fairness,' since you have none at law.

I should point out of course that Party A took nothing resembling 'extraordinary additional steps.' He published his father's manuscript. That's all. If UA were really interested in The Silmarillion film rights, they could have bought them from JRRT. They did not.

And do you really think 'Party B' had any intention, or ability, or prospect of revenue, in making a 'Silmarillion' movie BEFORE 'Party A' took those 'extraordinary steps' in 1977? Please. UA got, tossed in as a disregarded freebie, a then-valueless one-paragraph synopsis. It's only valuable now thanks to the 'extraordinary steps' of 'Party A.'

And your assertion that Party A's actions rendered Party B's investment 'worthless' is a bit rich, considering that Party B and his licensees have raked in something like a billion dollars from the deal. Party B wanted The Lord of the Rings. They got it. They made movies of it. They generated squillions of dollars.

I can't bring myself to feel sorry for poor, abused Party B.

[Sauron the White]

William ... you said

I should point out of course that Party A took nothing resembling 'extraordinary additional steps.

Could you please name for me another situation in which an author sold film rights to something and then years later had it repackaged in a longer book length form and it had the effect of rendering some of the original film rights to lose their value?

I would call that extraordinary additional steps. But if you can find other instances to show that it is an ordinary business practice in the publishing or fim industry, I would be happy to read about them and change my mind and statements.

If UA were really interested in The Silmarillion film rights, they could have bought them from JRRT. They did not.

In point of fact, they did buy the only published Silmarillion based tales in 1969. They did just what you said they should have done.

[Nerwen]

I'd just like something clarified.

Originally Posted by Sauron the White

Please note that I used the word "copyright" and did not deny it. I also differentiated between the type of copyright that you keep referring to and a legally registered copyright. I do believe that any fair minded person can read the quote from the Copyright site that Nerwen provided and see that there are indeed definite differences that are beyond procedural.

STW, I gave you the link to that site precisely so you could see that there is no difference.

Have you conceded that point now?

[Sauron the White]

The link you gave me stated that if one registers their copyright with the government that there are additional benefits one can receive. Additional damages, attorneys fees and the ability to use the filing as evidence.

So there is a difference.

If not, why would anyone ever pay the $30.00 fee?

[William Cloud Hicklin]

No, they didn't in any real sense. "Published" is irrelevant, remember?

In any event, the synopsis in the Appendices does not purport to be 'The Silmarillion.' By its own terms,

Of these things the full tale, and much else concerning Elves and Men, is told in The Silmarillion

So, a prima facie declaration that The Silmarillion was a separate work with an independent existence- and moreover, one which everyone even dimly aware of Tolkien in the late 60s knew was supposed to be nearing completion.

It's still rather gobsmacking to consider the notion UA was so desperately concerned with a fillip tucked away on pp 1033-34, but made no move to acquire rights in the (independent) work to which it refers! It was right there in Tolken's office. You want De Niro? Here's This: UA wanted the Lord of the Rings. They didn't care about The Silmarillion.

You say:

an author sold film rights to something and then years later had it repackaged in a longer book length form

You make it sound like the first page of Appendix A was the purpose of UA's purchase!

But, seriously, folks: the 'book-length form' was of course not a 'repackaging' of the Appendix A (i) preface, but a 'repackaging' of many thousands of manuscript and typescript pages JRRT created over the course of sixty years.

[William Cloud Hicklin]

Additional damages, attorneys fees and the ability to use the filing as evidence.

So there is a difference.

If not, why would anyone ever pay the $30.00 fee?

All procedural matters. They are unrelated to ownership.

[Nerwen]

Sauron, I refer you to William Cloud Hicklin's comment:

Originally Posted by William Cloud Hickli

Procedural advantages are not the same as asserting that copyright doesn't exist pre-registration!

Perhaps you're confusing property with the value thereof. A copyright is property. Its monetary value may be enhanced by many things, including registration. That doesn't in any way alter the basic fact of ownership.

Now, after that, you said this:

Originally Posted by Sauron the White

WCH - even before your previous post, we had disposed of copyright questions.
The link from Nerwen was extremely helpful as were you. Thank you.

I just want to know whether, in your mind, we have or have not disposed of the copyright question? Can we get a definite answer from you on this one?

Edit: X'd with William Cloud Hicklin.

[Sauron the White]

from WCH

So, a prima facie declaration that The Silmarillion was a separate work with an independent existence- and moreover, one which everyone even dimly aware of Tolkien in the late 60s knew was supposed to be nearing completion.

I remember The Shadow used to proclaim "who knows what evil lurks in the hearts of men? The Shadow knows." I guess he had nothing on you. By the way, when you are not looking into the future expecting your contractual partners to screw you, could you define "to be nearing completion"? By your own timeline there was a good ten years between when everybody was suppose to know these things and when the SIL was published. But it makes no difference. None. Zip. Nada.

from Nerwen

I just want to know whether, in your mind, we have or have not disposed of the copyright question? Can we get a definite answer from you on this one?

Mr. Hicklin is attempting to soften or mitigate his previous firm statement that there is no difference - NONE - between what I called a copyright and what I called a legal registered copyright. When I quoted the link where it said that one can gain additional damages from statuatory law, that one can gain repayment attorneys fees, and one can use the filing as evidence - and I take that to mean they save tons of work producing other proof in court - those are definite differences that go beyond the limited word PROCEDURAL. The link that you provided clearly spells out some additional benefits one can gain from taking the steps and spending the money to get a registered copyright. And I believe we have disposed of the copyright question and it has no impact on my main point either way.

I never ever ever claimed that the Tolkien Estate or CT did not have the right to have the SIL published as a book. Never.

The value of the rights held by the legal film rights holders were severly diminished by actions taken by CT with the publication of the SIL.

from WCH -

In any event, the synopsis in the Appendices does not purport to be 'The Silmarillion.' By its own terms,

So what?
It does list a whole bunch of First Age historical events which it says are taken from The Silmarillion. Where else in 1969 could you pick up a published book by JRRT and find that information? And it all was sold to UA in film rights. LOTR is much more than the story that ends with Sam going back announcing his return safe and sound. Its also the Appendicies.

UA wanted the Lord of the Rings. They didn't care about The Silmarillion.

How do you "know" for certain what UA wanted?
What I know for a fact that does not depend on some mystical powers or abstract reasoning is this: UA bought the films rights to LOTR from JRRT and gained the film rights to everything in that book including the Appendicies. They gained the usage of a whole list of events from the First Age that JRRT says are part of The Silmarillion. They gained the right to use those in a film.

It is foolish and silly to speculate and argue about what somebody wanted and what you may know about it. Lets look at the facts. The facts say what happened.

In 1969 there existed no bloody work titled the SILMARILLION outside of stacks of unsorted and sometimes unreadable papers strewn around various locations where JRRT worked. It may have existed in his mind. Fragments may have existed on scraps of paper. But THE SILMARILLION as an identifiable work that UA or anyone else (beyond some Tolkien groupies) would know about did not exist to be bought, stolen or anything else.

You make it sound like the first page of Appendix A was the purpose of UA's purchase!

It matters not one jot or tittle what UA 's purpose or motive was in their purchase. I could not care less if they were more concerned about page 7, 353, 869 or 1012. It matters not. They bought the whole darned thing lock stock and barrel. They bought film rights to LOTR from cover to cover and that includes the whole contents including the Appendicies.

I have tried to answer all your questions. Would you please be good enough to answer this for me that I have posed before?

Do you know of any other situation in publishing or in film rights where someone made a legal purchase of film rights and then, years later, some of those same contents were repackaged and sold in a longer format thus weakening the usability and exercise of rights of the original sale?

Because I know of not one situation like that. I spent several hours researching this to find out if there was precedent for it and cannot find one case where anyone did that.

[zxcvbn]

My,my. Things sure are getting heated up here!

I'll just contribute my two cents: Saul Zaentz only licensed the Hobbit and the LOTR including Appendices, and those are the only rights he owned. He never owned the rights to any of Tolkien's unpublished notes(which, at that time, were unknown to most of the world) and Christopher Tolkien did not 'degrade' Zaentz's license in any way because he never owned the rights to any of the material in the Silmarillion (except whatever little appears in the Appendices: words like 'Silmarillion', 'Tuor', 'Thingol' etc.).

[Sauron the White]

zxcvbn

Do you realize that the Appendicies contain all of 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

and it says that all this is from The Silmarallion.

UA and then Zaentz owned the rights to place all these things in a film. But the publishing of the book length SIL makes this nearly impossible and places them at risk of either losing tons of money produing a film that will be mocked for not being the real thing or risks a lawsuit if it is the real thing. The publication of the SIL placed those rights in a nearly impossible lose/lose situation. That is very clearly a diminishment of rights that they paid for, held and now can not use. And who is responsible for this situation? CT.

That is in the Appendicies. It is far more than just a few names here and there as you claim. And that is just the tip of the iceberg for there is much more on other Middle-earth history that goes beyond that list.

[zxcvbn]

Hmm, interesting. Still, I don't think it would be Illegal to put those things in a film just because they're also published in another book that they don't have rights to.
otherwise Peter Jackson wouldn't have got away with including stuff like the Ring of Barahir(which was in the Appendices) or the inscriptions on Glamdring(which refer to Turgon by name) and Hadhafang(which refer to Idril).

Also, about the Gladden Scenes scenes with Isildur, I believe PJ didn't use the longer
UT version simply because he didn't think it necessary and wanted to conserve screen time. The audience knows that Isildur tried to flee, Ring slipped off, orcs shot him. The end.

[Nerwen]

Originally Posted by Sauron the White

Mr. Hicklin is attempting to soften or mitigate his previous firm statement that there is no difference - NONE - between what I called a copyright and what I called a legal registered copyright. When I quoted the link where it said that one can gain additional damages from statuatory law, that one can gain repayment attorneys fees, and one can use the filing as evidence - and I take that to mean they save tons of work producing other proof in court - those are definite differences that go beyond the limited word PROCEDURAL. The link that you provided clearly spells out some additional benefits one can gain from taking the steps and spending the money to get a registered copyright. And I believe we have disposed of the copyright question and it has no impact on my main point either way.

For the last time, Sauron– the creator of a work owns the copyright by default. This right exists as soon as the work is created. Registering copyright only helps facilitate things.

That is what that link is saying. You have had this explained to you over and over again. Why can't you just admit you were wrong? People can be wrong sometimes– it's no disgrace.

Originally Posted by Sauron the White

I never ever ever claimed that the Tolkien Estate or CT did not have the right to have the SIL published as a book. Never.

Actually, I believe you are claiming that, if you think the film rights holders can sue Tolkien Estate for damages caused by publishing The Silmarillion. Isn't that the cornerstone of your argument?

Originally Posted by Sauron the White

Do you know of any other situation in publishing or in film rights where someone made a legal purchase of film rights and then, years later, some of those same contents were repackaged and sold in a longer format thus weakening the usability and exercise of rights of the original sale?

Because I know of not one situation like that. I spent several hours researching this to find out if there was precedent for it and cannot find one case where anyone did that.

I think you just shot yourself in the foot. What you have proved, if anything, is that no film company has ever tried to sue an author for publishing a sequel (or prequel) to his own novel. I don't know if this is so– but if it is– well, why do you think?

[Sauron the White]

Nerwen
It seems to me that the actual truth is somewhere in the middle. WCH claimed that there was absolutely no difference between the home created copyright when the work was created and a legally registered copyright. The link you provided explains several differences that I have repeatedly pointed to. Those include additional damages, repayment of attorney fees and the ability to introduce the filing as evidence thereby saving lots of other work.

Mr. Hicklin was wrong in claiming that there was no difference. Then he attempted to mitigate or soften his claim calling those differences (which previously DID NOT EXIST in his opinion) procedural. I also was wrong about some things. The truth lies somewhere in between.

Originally Posted by Sauron the White
I never ever ever claimed that the Tolkien Estate or CT did not have the right to have the SIL published as a book. Never.

from Nerwen

Actually, I believe you are claiming that, if you think the film rights holders can sue Tolkien Estate for damages caused by publishing The Silmarillion. Isn't that the cornerstone of your argument?

Its a free country so you can believe anything you darn well please. That changes nothing I said. Believe away. Please show me where I said the film rights holders can sue the Tolkien Estate for damages caused by publishing THE SIL. Please show me. I never said it. Some type of action may have come up in the discussion in passing over the last three pages but that was never my point. And if I never said it it cannot be the cornerstone of my argument. This is not about litigation or lawsuits.

What you have proved, if anything, is that no film company has ever tried to sue an author for publishing a sequel (or prequel) to his own novel. I don't know if this is so– but if it is– well, why do you think?

I have no idea of what you are saying here or what your point is because you are completly missing my point. I am not saying and have never said that no author cannot write a prequel to an existing story or a sequel to an existing story. If I did please show me where I said it. I have never talked about suing an author for doing that. If I did please show me where I did.

My point and my question was this: can anyone please show me evidence of another case where an author sold a piece of his work to a film company and then used that exact same work in an expanded form to cause diminshment of the original film holders rights?

I spent a couple of hours researching this yesterday and could find no other case.

[Nerwen]

Originally Posted by Sauron the White

In 1969 there existed no bloody work titled the SILMARILLION outside of stacks of unsorted and sometimes unreadable papers strewn around various locations where JRRT worked. It may have existed in his mind. Fragments may have existed on scraps of paper. But THE SILMARILLION as an identifiable work that UA or anyone else (beyond some Tolkien groupies) would know about did not exist to be bought, stolen or anything else.

You see, copyright does matter– despite your own statements to the contrary. Tolkien owned the copyright on his work as soon as he wrote it. Publication has nothing to do with it. This is the basic point which you refuse to accept.

Originally Posted by Sauron the White

I have tried to answer all your questions. Would you please be good enough to answer this for me that I have posed before?

Do you know of any other situation in publishing or in film rights where someone made a legal purchase of film rights and then, years later, some of those same contents were repackaged and sold in a longer format thus weakening the usability and exercise of rights of the original sale?

Because I know of not one situation like that. I spent several hours researching this to find out if there was precedent for it and cannot find one case where anyone did that.

But that's not what happened. The Silmarillion is not an expansion of the LotR Appendices. They are a synopsis of it. J.R.R. Tolkien owned the copyright on the Simarillion material from the moment he wrote it. He did, Sauron. He really, really did. Your personal beliefs do not change this in the slightest.

And while we're on the subject of belief:

Originally Posted by Sauron the White

Its a free country so you can believe anything you darn well please. That changes nothing I said. Believe away. Please show me where I said the film rights holders can sue the Tolkien Estate for damages caused by publishing THE SIL. Please show me. I never said it. Some type of action may have come up in the discussion in passing over the last three pages but that was never my point. And if I never said it it cannot be the cornerstone of my argument. This is not about litigation or lawsuits.

Here we go again. Will you kindly explain what your argument is?

You say it's not about who owns the rights. You say it's not about whether the rights holders can sue for damages.

Then what is it?

Edit: Another thing: How do you think registering copyright affects an author's ownership of his work?

Don't say this doesn't matter– you've been arguing on this issue for ages.

[davem]

Lets see if I get this right. UA was suppose to look into the future and know that JRRT would someday publish a book that he had been working on for decades and decades and was in little better condition that stacks of unsorted papers and notes? They were suppose to know, that somehow, someway, someday, JRRT or his heirs would undercut their investment by putting out another book with much the same material that they had paid him for? Or, they should have been aware of a rather obscure article turned into a book about the subject and been able to predict the future from that?

" in little better condition that stacks of unsorted papers and notes" could describe the manuscripts of many authors pre-word-processors. And how many studios have bought the movie rights of forthcoming books? And even if we were to sympathise with that well-known humanitarian organisation United Artists because they didn't get around to asking Tolkien whether he was going to actually publish this 'Silmarillion' thing (probably the board of directors was too busy going out on the streets & handing out soup & sandwiches to the homeless or something), Saul Zaentz could have easily found out (it being, as WCH has pointed out, widely known throughout the '60's he was working on it) if he'd taken the time - Tolkien never made any secret of his desire to publish it. To continue his example - you purchase one acre of land from him but fail to ask what plans, if any, he has for the rest of it. He has actually published out his plans to turn the rest of the land into a 'hog-farm/sewage treatment plant/toxic waste dump' - in fact, on the one acre of land (LotR) you bought there was actually a big sign stating 'This land to over look a new hog-farm/sewage treatment plant/toxic waste dump' (the clear statement/wide knowledge that The Sil was a work in progress). You, in your eagerness to buy the acre of land, simply ignore the sign & also fail to ask what plans the owner has for the rest of the site.

The other point I would make is that Zaentz has never cared whether his licensing of trashy cartoons, action figures & general tat might adversely affect the reputation/perception of the Estate's property (ie Tolkien's writings). Do you think that in return for access to use some of Tolkien's unpublished work Zaentz would let the Estate have a say in what was licensed - or would this all be one way traffic?

[Nerwen]

Can I just remind everyone that in Sauron the White's original post he said this:

Originally Posted by Sauron the White

Consider that Christopher Tolkien had published and copyrighted THE SILMARALLION four years after his fathers death and some eight years after the film rights to that material were sold.

Is it not possible, that a sharp legal staff with some innovative thinking, could well claim that they own the films rights to that material and anything published later and made known to the public can be used by them as well since it only details material which they already owned and had use of?

Could it not be legally argued that CT causing to be published the SIL after his fathers death, was the unfair diminishing of rights his father had already sold and were legally owned by others?

Yes, this would indeed be pushing the envelope and an attempt to expand upon what many now believe the film rights are constituted of. And yes, it would be an end run around the idea that THE SILMARALLION cannot be touched by New Line, Zaentz, Jackson or anyone else. But could it happen?

So Sauron... you did start off talking about the legal aspect. Now you say that doesn't matter and it's a question of ethics.

Okay, fine. It's a question of ethics. We'll talk ethics now... but will you acknowledge that your original question has been answered?

[Sauron the White]

Nerwen .. when you accuse me of something, please stick to that when reposting my previous thoughts so we can see if you were correct or not. That is only fair.
There is a disturbing trend here - not only here but on other boards also - where instead of directly meeting a persons point head on, people like to rephrase, paraphrase, change the meaning or wordsthe person used in an attempt to twist the original argument to bettermeet their own response.

You accused me of

Actually, I believe you are claiming that, if you think the film rights holders can sue Tolkien Estate for damages caused by publishing The Silmarillion. Isn't that the cornerstone of your argument?

I replied

Please show me where I said the film rights holders can sue the Tolkien Estate for damages caused by publishing THE SIL. Please show me. I never said it. Some type of action may have come up in the discussion in passing over the last three pages but that was never my point.

Obviously you could not locate what I did not say and could back up your accusation. So today you come back with

So Sauron... you did start off talking about the legal aspect

Legal aspect? legal aspect? What in the world is a legal aspect? Sounds like the broadest possible term you could come up with that takes in nearly everything that has anything to do with contracts, rights or the law. It says nothing about me urging anyone to sue anybody else as you claimed wasthe cornerstone of my argument.

And all this about copyright. It has nothing to do with my main point. I am not arguing that JRRT did not own The Silmarillion. I am not arguing that he cannot produce a book about it or the events in it. I am not arguing that anybody but the Tolkien Estate owns The Silmarillion. Can we please get that straight.

The facts are simple.
1- JRRT sold the film rights to both THE HOBBIT and LOTR to UA in 1969.
2- Included in LOTR are the Appendicies, including accounts of events in The FIrst , Second and Third Ages. Among these items are

- 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

3- UA sells these film rights to Saul Zaentz in 1976.
4- JRRT dies never completing his SILMARALLION leaving behind various versions of stories which are later combined into a book length narrative by his son CT.
5 - THE SILMARALLION is published in 1977. Since that time the SIL has sold over a million copies and has remained in print for the last thirty years in languages all around the world.

Does anyone find those facts to be in error? Please say so because if we cannot even agree on the facts we certainly cannot find any common ground on what they mean or their implications or effects.

I will await responses before discussing what I think are the imlications of these facts.

[William Cloud Hicklin]

Sauron:

You're stalling. We've been over this again and again and again: the facts are stipulated; we're arguing the law as it applies to the facts.

Why don't you come out and tell us what claim or rights you think Zaentz/New Line have in The Silmarillion? And is your position any different from the one you started with,

they own the films rights to that material and anything published later and made known to the public can be used by them as well since it only details material which they already owned and had use of?

[Sauron the White]

WCH - so you agree to that facts as I have listed them here and above?
We should all get this straight before moving on to what we each thing these facts mean.

1- JRRT sold the film rights to both THE HOBBIT and LOTR to UA in 1969.
2- Included in LOTR are the Appendicies, including accounts of events in The FIrst , Second and Third Ages. Among these items are

- 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

3- UA sells these film rights to Saul Zaentz in 1976.
4- JRRT dies never completing his SILMARALLION leaving behind various versions of stories which are later combined into a book length narrative by his son CT.
5 - THE SILMARALLION is published in 1977. Since that time the SIL has sold over a million copies and has remained in print for the last thirty years in languages all around the world.





-

[The Saucepan Man]

STW, much as I admire your spirited efforts in sticking up for Jackson and the LotR films and share your discomfort with some of the more strident negative opinions expressed here in respect of them, I am afraid that you are on a very sticky wicket on this one.

Originally Posted by STW

Mr. Hicklin was wrong in claiming that there was no difference. Then he attempted to mitigate or soften his claim calling those differences (which previously DID NOT EXIST in his opinion) procedural. I also was wrong about some things. The truth lies somewhere in between.

The law makes a distinction between substantive and procedural matters. The former (in this context) concern rights, while the latter relate to the ability to enforce such rights. Substantively, there is no difference between the copyright which comes into existence when a work is created and a legally registered copyright. So, WCH is correct to say that the rights of the Estate and UA/Zaentz are no different now than they were when the film rights were first sold. All that registration does is make it easier to enforce those rights.

Originally Posted by WCH

Copyright is a form of intellectual property. Copyright law is a branch of property law. Now, what is property? Property is any thing, real or personal, tangible or intangible, which one person may possess to the exclusion of all others. Copyright is the right of an author to reproduce his own work, and (most importantly) exclude anyone else from doing so.

Like all property, copyright is alienable: it gan be given, bartered, sold etcetera. It is divisible: one can sell a part of a copyright and retain the rest. With me so far?

If the author sells film rights, he is actually selling a license under which the purchaser has the right to make film adaptations. After selling that small piece, however, the author retains all the remaining copyright. It's still his, to do with as he wants.

That might include writing a sequel or other work related to the first work in such a way that it might be classed as 'derivative' were another person to do so. But of course the author owns his characters, incidents and settings and can do with them whatever he bloody well likes. He *owns* them: the sequel is derivative of the primary copyright, not the alienated film license. If he writes a sequel, then it is a new work, and the owner maintains absolute copyright ownership of that too.

No problems so far?

Now, notice that all of this is concerned strictly with *ownership*- it is, after all, property law. "Value" simply doesn't enter in. Property law is only concerned with who owns what, not what it's worth. If the author writes a sequel, it doesn't matter a fart in a tornado whether it might negatively affect the value of film rights he's already sold. His right is exclusive and unaffected- which is to say that the film-rights buyer of Book 1 has no claim nor restraint on the sequel just because the value of his property might be affected. It doesn't matter. The law only looks to ownership, not value.

Suppose that I own a large tract of land, and you approach me to buy one acre on the corner to build a house. We agree on a price and close the sale. (Assume no restrictive covenants or zoning laws, or verbal undertakings)

A few years later on, I elect to develop the rest of my tract as a combination hog-farm/sewage treatment plant/toxic waste dump. Would your house value be affected? Yep. Down the toilet. Would you have a claim against me? Absolutely none whatsoever. I sold you one acre and one acre you own. End of story.

This is spot on and merits restatement. Tolkien owned the rights to all works created by him. He sold an aspect of those rights, the right to make films of TH and LotR (plus associated merchandising rights) to UA. He, and the Estate as his successor, retained the publishing rights to these two books plus all the unpublished material that was not included in the sale. CT was therefore entirely free to publish the Silmarilion (and other) material. Legally, there is no issue.

You state that this leaves Zaentz (or his licensee) in a position whereby he either fills in the gaps in the Silm material contained in the Appendices and invites ridicule or risks infringing the Estate’s copyright. That is correct. And, as others have said, tough.

You seem to suggest that this is somehow unfair on Zaentz. I happen to agree with others that he has done quite well out of the whole deal already thank you and that neither UA nor he were likely to have been interested in the Silm rights anyway until fairly recently, if at all. But putting that aside, in a situation where two parties freely enter into a contract, fairness doesn’t enter into it, unless there is some suggestion that one party was in an inferior bargaining position (which consumer law largely addresses) or was improperly induced to enter into the contract. It seems to me that, if anyone was in a lesser bargaining position when Tolkien sold the film rights to UA, it was Tolkien himself.

In any event, freedom of contract is the reason that parties (of relatively equal bargaining power) pay loads of lolly to lawyers like WCH and me to make sure that their interests are protected.

Originally Posted by davem

Thus, whether it was UA, or Saul Zaentz, if they didn't take the time to find out that this reference in RotK to 'The Silmarillion' was to an actual work in progress they are entirely at fault

Originally Posted by STW

That is the most amazing statement I have ever heard from you - and I have heard more than my share. Lets see if I get this right. UA was suppose to look into the future and know that JRRT would someday publish a book that he had been working on for decades and decades and was in little better condition that stacks of unsorted papers and notes?

Again, I’m sorry, but davem is right. It is not an amazing statement at all. If UA were at all interested in the rights to the Silm, they could have insisted that such rights be included in the deal or that Tolkien agree not to publish the Silm material in the future. If Tolkien did not agree, then they could have reduced the amount paid to reflect the (perceived) lower value of what they were buying. If they were not aware of all the Silm material that had already been written by Tolkien and of his future intention to publish it, then (assuming that they were at all interested in it) they (or their lawyers) did not do their due diligence properly.

Similarly, when Zaentz purchased the rights from UA, if he was at all interested in the Silm rights, he should have made sure that he was aware of how the publication of the Silm might affect them and, if appropriate, negotiate a lower purchase price.