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  1. #1
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    Tolkien Estate suing Warner Brothers for $80M

    Interesting and rather scary article here:

    http://www.hollywoodreporter.com/thr...er-bros-393212

    The catalyst for the lawsuit appears to be Tolkien-themed "online slot machines" that the Tolkien estate claims Warner Bros/Saul Zaentz don't have the rights to:

    The crux of the suit is the estate's contention that a decades-old rights agreement entitles the studio to create only "tangible" merchandise based on the books, not an "online slot machine" or other digital exploitations that the estate calls highly offensive.
    Understandable how online gambling would be offensive to the Tolkien estate, but the lawsuit appears to go considerably further:

    "The original contracting parties thus contemplated a limited grant of the right to sell consumer products of the type regularly merchandised at the time such as figurines, tableware, stationery items, clothing and the like," the complaint states. "They did not include any grant of exploitations such as electronic or digital rights, rights in media yet to be devised or other intangibles such as rights in services."
    The Tolkien estate thus appears to claim that only tangible consumer products sold at the time of the original agreement (which was in 1969) were covered, and they specifically dispute that "electronic or digital rights" and "rights in media yet to be devised" were part of the agreement.

    LotRO derives its licensing from the same agreement (the only one Tolkien ever signed), through Saul Zaentz Inc. And clearly an MMO could be considered "electronic or digital rights", and the online computer game "medium" was certainly "yet to be devised" at the time of that license.

    In a legal sense, there may be little real difference between LotRO and an online gambling site, apart from style. Both are a form of online electronic entertainment for sale.

    The text of the actual lawsuit (linked to the article above) quotes the license agreement as specifically limiting the rights to "tangible personal property":

    solely and
    only upon and in connection with the manufacture, sale and distribution of … any
    and all articles of tangible personal property, other than novels, paperbacks and
    other printed published matter…
    A couple paragraphs down the lawsuit specifically charges that online games were never part of the license agreement:

    However, in recent years, and particularly in the aftermath of the
    unprecedented financial and critical success of the Films, defendants have, with
    increasing boldness, engaged in a continuing and escalating pattern of usurping
    rights to which they are not entitled — rights which belong exclusively to plaintiffs.
    For example, although their limited merchandising license only gives them the right
    to sell tangible merchandise, defendants have developed, licensed and/or sold (and
    continue to develop, license and/or sell) downloadable video games based on The
    Lord of the Rings and The Hobbit, available only by downloading and/or access via
    the Internet, [...]
    Anybody know of any "downloadable video games based on the Lord of the Rings and The Hobbit, available only by downloading and/or access via the Internet"...?

  2. #2
    Thank you for posting about this. I heard the story on NPR this morning and just saw it on GameSpot as well. Although I think the slot-machines went way too far, I really hope this suit doesn't stop LOTRO in any way. I love the books as well as this game. Would be really brokenhearted if LOTRO was impacted in a negative way. Hopefully this will resolve soon.

    http://www.gamespot.com/news/tolkien...-games-6400381

  3. #3
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    I am confused, although law is most definitely not my forte. Turbine created LotRO long before they were owned by WB, presumably with all the proper legalities worked out. Does the WB agreement that didn't include online or digital content somehow override the independent legal agreement Turbine had been using prior to the buyout? It seems pretty odd to retroactively apply WB's agreement to LotRO. Not to mention, if this affected LotRO, wouldn't it be mentioned in the articles? LotRO may not be the biggest thing in gaming, but it's not nearly as obscure as "online slot-machines".
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  4. #4
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    Quote Originally Posted by Sonsy View Post
    I am confused, although law is most definitely not my forte. Turbine created LotRO long before they were owned by WB, presumably with all the proper legalities worked out. Does the WB agreement that didn't include online or digital content somehow override the independent legal agreement Turbine had been using prior to the buyout? It seems pretty odd to retroactively apply WB's agreement to LotRO. Not to mention, if this affected LotRO, wouldn't it be mentioned in the articles? LotRO may not be the biggest thing in gaming, but it's not nearly as obscure as "online slot-machines".
    The agreement with Tolkien goes with the game as well I believe, that is why Turbine/WB can't break away from the lore (like "Good vs Good" PvP etc). I'm sure it is not part of the complain though but the real problem is that if WB decided to act harshly and drop Tolkien. Highly unlikely they will since it is "cheaper" in my perspective to pay the suit than break away from a billion dollar merchandise title. Just my 2 cents.

  5. #5
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    Quote Originally Posted by LagunaD View Post
    Interesting and rather scary article here:

    http://www.hollywoodreporter.com/thr...er-bros-393212


    Anybody know of any "downloadable video games based on the Lord of the Rings and The Hobbit, available only by downloading and/or access via the Internet"...?
    Yes, this lawsuit specifically pertains to LOTRO, although LOTRO wasn't the straw that broke the camel's back...but rather WB and Saul Zaentz extending their licensing of the rights to Online Gambling Sites without permission from the Tolkien Estate. However, the part that should have everyone here worried is that now that the Tolkien Estate is suing, in addition to monetary damages, they are asking for an injunction for WB and Saul Zaentz to cease all digitally distributed or online games based on their licensing and terminated immediately. Reading the whole of the lawsuit it is clear that LOTRO falls into this category.

    See in particular paragraph 68 which says:

    "Plaintiffs are therefore entitled to injunctive relief preventing defendants from infringing plaintiffs’ copyrights in The Lord of the Rings and The Hobbit, and recalling from the market all unauthorized uses of The Lord of the Rings and The Hobbit that have been made or authorized by defendants and/or their licensees."


    and paragraph 79b:

    "the right to develop, produce, advertise, distribute and/or otherwise exploit downloadable-only/online/digital video games based on The Lord of the Rings and/or The Hobbit (including, without limitation, the Downloadable Games), is beyond the scope of the rights granted to Warner Bros. and Zaentz pursuant to the Merchandising License and, therefore, that such development, production, advertisement, distribution and/or other exploitation constitutes an infringement of plaintiffs’ copyrights in and to The Lord of the Rings and/or The Hobbit, entitling plaintiffs to damages as well as permanent injunctive relief."


    IBTL, of course, as neither WB nor Turbine will be able to allow discussion of this here...for obvious legal reasons.
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  6. #6
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    Well, I totally got lost in the legalese of the lawsuit, but the answer to my question was right in front of me (or at least at the bottom of the page).

    THE LORD OF THE RINGS ONLINE™ interactive video game © 2011 Warner Bros. Entertainment Inc and patents pending. All rights reserved. Middle-earth Poster Map © 2007 The Saul Zaentz Company, d/b/a Middle-earth Enterprises (SZC), under license to Warner Bros. Entertainment Inc.. All rights reserved. "The Lord of the Rings Online", Middle-earth Enterprises logo, "The Lord of the Rings" and the names of the characters, events, items and places therein are trademarks or registered trademarks of SZC under license to Warner Bros. Entertainment Inc. Turbine and the Turbine logo are trademarks or registered trademarks of Warner Bros. Entertainment Inc. All other trademarks are the property of their respective owners.

    So LotRO definitely does fall under the WB license. Phooey. If LotRO had still been under the Zaentz license at least there would have been an extra level of padding.

    I do agree that LotR slot machines are absolutely terrible and should be blown up...er...recycled, but it would be a shame to lose something like LotRO that so faithfully brings LotR to life, both in fact and in spirit.
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  7. #7
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    Quote Originally Posted by Sonsy View Post
    So LotRO definitely does fall under the WB license. Phooey. If LotRO had still been under the Zaentz license at least there would have been an extra level of padding.
    It's all 'the Zaentz license' at source and so I doubt it would have mattered. The problem appears to be that Middle-earth Enterprises (i.e. Zaentz & Co.) have allegedly allowed their licensees to do things that the Tolkien Estate believes breaches the terms of the rights they were originally sold. If Turbine were still independent then they could have ended up being sued as well (for offering a game download-only) - tarred with the same brush, as it were - while being without the sort of legal resources WB can afford.

    I do agree that LotR slot machines are absolutely terrible and should be blown up...er...recycled, but it would be a shame to lose something like LotRO that so faithfully brings LotR to life, both in fact and in spirit.
    'Faithful' isn't the word I'd use, and I think we can be sure that Chris Tolkien wouldn't see it that way.

  8. #8
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    Well, having read the lawsuit, LotRO seems to fall into a sort of gray area.

    The game was originally sold on CD-ROM, in a box, making it certainly a "tangible item".

    Whether files on a computer disk are "tangible" is arguable. They have a physical existence, like the songs on CD. They could, in principle, be printed or copied to other physical media. They are in some sense personal property, being protected by the same laws, and with the owner having the same rights to dispose of them, as they would any other item of property.

    I'm also not certain how strong the estate's claim that "media yet to be devised" would be excluded from the license. Anyone who had a license to distribute some artist's music on phonograph records and 8-track tapes arguably acquired the right to distribute them on CD's, after that technology was invented, unless the license was specifically limited to existing media. The estate's claim in this regard is a bit like saying it is ok to sell Tolkien T-shirts made of cotton, but not Tolkien T-shirts made of Lycra, since Lycra hadn't been invented in 1969. That doesn't make a lot of sense.

    In 1969, most recreational games were played on a table-top and sold in cardboard boxes, while today they are played on a computer and often sold over the internet. But it would seem to me if you have a license to develop and sell games, the game format and distribution method is a decision left to the manufacturer.

    I am rather stunned, though, that Warner Bros. and/or Zaentz would compromise the IP by allowing it to be used for something tacky like online slot machines. In the past Turbine has claimed they were extremely protective of the IP's integrity (no flying mounts, no evil player characters, etc). Maybe the Rune-keeper was the start of a slippery-slope that eventually brought us to online slot machines?

    Hard to predict how this might play out. An out-of-court settlement would usually be the expected outcome, but that might require the estate to formally accept the licensing of many types of products (like LotRO), which history suggests they are unlikely to do.

  9. #9
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    Quote Originally Posted by Radhruin_EU View Post
    It's all 'the Zaentz license' at source and so I doubt it would have mattered. The problem appears to be that Middle-earth Enterprises (i.e. Zaentz & Co.) have allegedly allowed their licensees to do things that the Tolkien Estate believes breaches the terms of the rights they were originally sold. If Turbine were still independent then they could have ended up being sued as well (for offering a game download-only) - tarred with the same brush, as it were - while being without the sort of legal resources WB can afford.


    'Faithful' isn't the word I'd use, and I think we can be sure that Chris Tolkien wouldn't see it that way.
    Turbine perhaps could have been included in the "copyright infringement" part of the lawsuit, but not really in the "interpretation of license" part, since Turbine had no independent licensing agreement with Tolkien.

    I guess either way, the first order of business is to get the disputes over the license between Tolkien and Zaentz and WB resolved, and then secondly determine which products licensed by WB and Zaentz are invalidated by the ruling/settlement. As some have mentioned, returning to an actual "boxed" game may end up being enough to meet the requirements. Somewhere I'm sure I still have my original SoA CD that my dad got free with a computer he purchased.

    You are probably right about Christopher Tolkien. It is a shame that he can't understand that the value of a written work is as much in the interpretation of the reader as it is in the written words themselves. He has preoccupied himself so deeply in the actual words, he doesn't seem to acknowledge that the books resonate with every reader in a different way, and that all of those ways add to the value of the books.

    Interestingly, I think his father understood the ways that stories change in every retelling. That was, I think, the very crux of what his exercise in writing these books in the first place. Look at the "long version" of "Hey Diddle Diddle", attributed to Bilbo. It's a lot longer and differently worded than the version that actually does exist in real life today. He saw Bilbo's original version as something that was eventually shortened and reworded into our modern version. It seems strange then that Christopher Tolkien is so dreadfully stuck in the idea that no one should retell the story unless it is word-for-word exactly as it appears in the books.

    In any case, this is neither here-nor-there with respect to the lawsuit, other than to potentially explain some of the motivation behind it.
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  10. #10
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    Quote Originally Posted by Sonsy View Post
    As some have mentioned, returning to an actual "boxed" game may end up being enough to meet the requirements.
    But also enough to be a real problem for an F2P game. For best results you want the curious to be able to just download and play, not to have to purchase anything tangible.

    You are probably right about Christopher Tolkien. It is a shame that he can't understand that the value of a written work is as much in the interpretation of the reader as it is in the written words themselves. He has preoccupied himself so deeply in the actual words, he doesn't seem to acknowledge that the books resonate with every reader in a different way, and that all of those ways add to the value of the books.
    This has nothing to do with readers or how the books resonate with them, it's about commercial exploitation of an extremely valuable literary IP. Whereas CT was a grumpy old git about the movies, in this case he'd have every reason to be annoyed (and every right to legal redress if Middle-earth Enterprises really have gone beyond the terms of the rights Saul Zaentz bought). It'd be very unfortunate if LOTRO ended up as collateral damage in some way, but if that were to happen then you should pin the blame where it belongs (on greedy media companies).

  11. #11
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    Quote Originally Posted by Radhruin_EU View Post
    But also enough to be a real problem for an F2P game. For best results you want the curious to be able to just download and play, not to have to purchase anything tangible.


    This has nothing to do with readers or how the books resonate with them, it's about commercial exploitation of an extremely valuable literary IP. Whereas CT was a grumpy old git about the movies, in this case he'd have every reason to be annoyed (and every right to legal redress if Middle-earth Enterprises really have gone beyond the terms of the rights Saul Zaentz bought). It'd be very unfortunate if LOTRO ended up as collateral damage in some way, but if that were to happen then you should pin the blame where it belongs (on greedy media companies).

    Oh, I do agree with this completely. I wasn't trying to pin the blame on Christopher Tolkien at all. I think the estate is doing what it has to do, and what it should do to control how the works are used. I know people rag on them for being greedy and suing everyone, and some of those lawsuits are pretty iffy, but in this case they are right.

    I guess I was merely lamenting the fact that due to his personal feelings on other interpretations, he probably isn't going to make an exception for LotRO (such as in the form of a new, separate licensing deal that would grant some limited digital/online/video game rights).
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  12. #12
    I noticed last night that there was a Hobbit game available in the Play Store. I wonder if that might be the game mentioned and not LOTRO. It seems rather iffy that a game that is approaching it's 6th bday would suddenly popup on the radar. Where have they been the last few years not to notice the game.

    IMHO it all comes down to wanting to get their share of the mushroom pie. I can see it now....No more slot machines and 6% of the profits from the Hobbit and we will all be buddies again.
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  13. #13
    And now Turbine introduce a slot machine.

    Coincidence?

  14. #14
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    Quote Originally Posted by Radhruin_EU View Post
    But also enough to be a real problem for an F2P game. For best results you want the curious to be able to just download and play, not to have to purchase anything tangible.


    This has nothing to do with readers or how the books resonate with them, it's about commercial exploitation of an extremely valuable literary IP. Whereas CT was a grumpy old git about the movies, in this case he'd have every reason to be annoyed (and every right to legal redress if Middle-earth Enterprises really have gone beyond the terms of the rights Saul Zaentz bought). It'd be very unfortunate if LOTRO ended up as collateral damage in some way, but if that were to happen then you should pin the blame where it belongs (on greedy media companies).
    I remember when WB took over Turbine, It was foretold by quite a few players that It would be the downfall of LotRO, God, I hope that doesn't come true.
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    Quote Originally Posted by cdotson1971 View Post
    I noticed last night that there was a Hobbit game available in the Play Store. I wonder if that might be the game mentioned and not LOTRO. It seems rather iffy that a game that is approaching it's 6th bday would suddenly popup on the radar. Where have they been the last few years not to notice the game.

    IMHO it all comes down to wanting to get their share of the mushroom pie. I can see it now....No more slot machines and 6% of the profits from the Hobbit and we will all be buddies again.
    I highly doubt if its about money, If CT was wanting to make a lot of money from his fathers works, there would be action figures, cheesy cartoons and what ever else, I really think hes trying to keep the Professors work from being trivialized. Which I do agree with 100 %, LotR slot machines Is a insult to Tolkien,and is just a shameless money grab. I just hope this doesn't shut down the game.
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    Advancing technology has frequently created these kinds of legal issues. In the US the reason a law enforcement search of one's motor vehicle isn't covered by the same need for a search warrant as the search of one's house is obvious lack of automobiles in 1776. Court's usually side with the "letter of the law" rather than the "spirit of the law" which doesn't bode well for this case.

    It's too bad that both WB and SZ couldn't resist the cash allure of slot machines. It seems pretty obvious to me that this is the precise type of venture that would seem to violate "Tolkien values" to the family.

 

 

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