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"Protect the Brand" Topic


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stenicplus15 Mar 2012 8:30 a.m. PST

Sorry if it's been posted already, I looked but couldn't find it…

So… The owners of film rights for Tolkien's work don't have enough to do:

link

Personal logo John the OFM Supporting Member of TMP15 Mar 2012 8:36 a.m. PST

Rename it The Halfling. That word is far too old to be trademark protected.
You might want to take down the pictures of the actors though.

Seriously, though. You HAVE to sue and threaten to protect your rights. Letting just one skid under the radar can be disastrous.

MajorB15 Mar 2012 8:41 a.m. PST

I would have thought that any IP rights to the term "Hobbit" would reside with the Tolkien estate not the Saul Zaentz Company .

Roderick Robertson Supporting Member of TMP Fezian15 Mar 2012 8:46 a.m. PST

The Win-Win solution is for the Pub to license the name (and possibly images) from the Saul Zaentz Company – both sides get what they want.

Mr Elmo15 Mar 2012 9:06 a.m. PST

If the pub is only 20 years old and The Hobbit dates from the 30's, then they are in the wrong.

The could change their name to "The pub formerly known as the hobbit"…or something.

bgbboogie15 Mar 2012 9:10 a.m. PST

John the OFM

There is a cafe not too far from here that has been ordered to change its name by the court from the Hungry Hobbit to something else. due to copyright.

So you may not be quite right there.

stenicplus15 Mar 2012 9:16 a.m. PST

It's only wikipedia but they cite evidence that the term 'Hobbit' is actually pre Tolkien…

link

Some of the cocktails might have to go though unles they can link them to Norse names.

CPBelt15 Mar 2012 9:17 a.m. PST

So you may not be quite right there.

?????

Sounds to me like he is right.

Sane Max15 Mar 2012 9:21 a.m. PST

The whole 'How Outrageous, picking on the little Pub-Owner just because she wants to use the name of someone else's property and actual images from the film on her posters and flyers. tone of that news article rather annoyed me.

Just because you are the little guy you can't go round leeching other people's intellectual property to put bums on seats in your Bleeped textty hostelry.

Pat

wizbangs15 Mar 2012 9:30 a.m. PST

SCZ "asked it to remove all references to the characters." I take that as removing the stolen picture of Frodo from the guest card & the names from the special drinks. It doesn't report that they are attacking the name "hobbit."

Angel Barracks15 Mar 2012 9:47 a.m. PST

Landlady Ms Roberts said: "We were absolutely stunned. It was completely unexpected, we never intended to infringe anyone's copyright


Lies, it was a blatant use of someone elses trademarks, copyrighted material and IP etc.

Can I call my pub THE SONY VAIO or THE MICROSOFT OFFICE and pretend I did not know it was copyright protected?
Methinks not.

Personal logo elsyrsyn Supporting Member of TMP15 Mar 2012 9:49 a.m. PST

It features characters from Tolkien's stories on its signs, has "Frodo" and "Gandalf" cocktails on the menu, and the face of Lord of the Rings film star Elijah Wood on its loyalty card.

And then …

Landlady Ms Roberts said: "We were absolutely stunned. It was completely unexpected, we never intended to infringe anyone's copyright.

Um, I'm calling BS on that. She's a thief and she damned well knew it all along.

Doug

darthfozzywig Supporting Member of TMP15 Mar 2012 10:38 a.m. PST

"We're bringing people to the books and the stories who haven't heard of JRR Tolkien."

Which is why they'd be attracted to your business? And why Elijah Wood's face is on your card?

GNREP8 Inactive Member15 Mar 2012 11:30 a.m. PST

Student Heather Cartwright, who set up a "Save the Hobbit" Facebook page which has more than 3,000 likes, said: "I was completely shocked by it. It's great to see so many people showing support. How long do we need to protect works for? Do we protect the works of Mozart and Shakespeare?" she added.
-----------
presumably until someone stops paying to hold the copyright.

TheCount Inactive Member15 Mar 2012 11:33 a.m. PST

Sigh. Just rename the pub "The Thief".

We hates it, we hates it, we hates it forever!

wink

Lentulus15 Mar 2012 11:48 a.m. PST

"we never intended to infringe anyone's copyright."

the face of Lord of the Rings film star Elijah Wood on its loyalty card.

Sure, we figured we'd just use their images without paying for it.

Personal logo Der Alte Fritz Sponsoring Member of TMP15 Mar 2012 11:56 a.m. PST

Rip Van Winkle. Where has that pub owner been all these years?

Gwydion Sponsoring Member of TMP15 Mar 2012 11:56 a.m. PST

How long do we need to protect works for?

Well in the UK the Copyright Act says 70 years from the death of the author if a literary work, or 70 years from the death of the director, author or composer if a film – so a few years yet I guess for the Hobbit.

Do we protect the works of Mozart and Shakespeare?

No because they are out of copyright – but we certainly protect the copyright in a particular recording or performance of their works.

GNREP8 Inactive Member15 Mar 2012 12:46 p.m. PST

Well in the UK the Copyright Act says 70 years from the death of the author if a literary work, or 70 years from the death of the director, author or composer if a film – so a few years yet I guess for the Hobbit.

---------------------
well on that basis its almost a non-story as the pub is simply breaking the law as JRR Tolkien died in 1973 so plus 70 years = the pub will be ok then in 2044. PS tip to any students – never ask a question without checking that the answer won't be something that makes you look silly

Eclectic Wave15 Mar 2012 1:23 p.m. PST

As much as the owners of the Tolkien rights would like you to believe differently, they do NOT have the rights to the name "Hobbit". Why? Because Tolkien used a little known but already existing name from myths and stories.

The word "hobbit" appears in a pre-Tolkien source: James Hardy's edition of The Denham Tracts: A Collection of Folklore by Michael Aislabie Denham

There is also a pre-Tolkien fantasy painting of a short gnome like man with hairy feet in woods that's entitled the hobbit. Search "Pre-Tolkien hobbit" on the web, the info is there.

How do I know this for fact? I worked for Flying Buffalo, and the Tunnels & Trolls RPG game has a race called "hobbits" and yes, Flying Buffalo was threatened with legal action until a artist who worked there wrote back about existence of hobbits pre-Tolkien and the lawyers never called back again. Check any T&T book and you will see this is true.

The Pubs real trouble was the pictures of characters from the novel on the sign. That WAS copy right infringement.

MajorB15 Mar 2012 2:06 p.m. PST

The Pubs real trouble was the pictures of characters from the novel on the sign. That WAS copy right infringement.

Ok, so who owns the copyright of those images on the pub sign? The artist presumably. Who is that?

Angel Barracks15 Mar 2012 2:31 p.m. PST

Not the artist.
If you copy something you don't have the legal right to copy you don't get the right to it just because you copied it.

The copyright of the Apple apple is not owned by me if I make a pub sign using it.
Apple still own the right to copy, not me.

GNREP8 Inactive Member15 Mar 2012 2:41 p.m. PST

so are the images copyrighted to film? Did the novel actually have any images (either LoTR or the Hobbit)

MajorB15 Mar 2012 2:43 p.m. PST

Not the artist.
If you copy something you don't have the legal right to copy you don't get the right to it just because you copied it.

What's he copying then, the film?
Take a closer look at the pub sign, they don't look like the film characters very much. Sure, there is a superficial resemblance, but that's all and not particularly surprising. It looks like an original piece of artwork. They can't sue you for that.

Angel Barracks15 Mar 2012 3:00 p.m. PST

True indeed, but given the context it is clear they are meant to be the copyrighted characters.

Gwydion Sponsoring Member of TMP15 Mar 2012 3:06 p.m. PST

Eclectic Wave
I make no case for anyone claiming copyright for the name 'Hobbit', I was simply answering the question (presumably rhetorical, but in fact straightforward) 'how long do we need to protect something?'.
(Actually I didn't – I answered what the law says we should protect, not how long we NEED to protect – but hey…)

I'm glad hobbit seems to predate Tolkien – the problem is that the word 'Hobbit' here is being used not in a generic folkloric sense as a sprite but in the furry footed guise we all know and love/hate. So whilst the name 'Hobbit' may not be copyright the combination of the name plus the picture (probably copyright as you suggest), plus the rest of the guff – 'order a Gandalf' etc suggests passing off a trademark, almost certainly owned by the film company.

Also, how do you fight someone with that much cash? 'Hobbiit' may not be copyright, and you seen to have won out – which I am all in favour of, but should the film company pursue this it takes a lot of cash and time and intestinal fortitude to fight it all the way through, presumably the US, courts.

They can't sue you for that.

Actually they probably can – just because you are a crap artist doesn't mean you are safe. Your inspiration may have led you away from direct copyright infringement (probably not in fact by my eye in this case)but if it is Trademarked image and name combination you are probably infringing that by even attempting to make it recognizably like the Hobbit or LoTR.

MajorB15 Mar 2012 3:08 p.m. PST

True indeed, but given the context it is clear they are meant to be the copyrighted characters.

How so? The pub appears to be a tribute to the whole Tolkien ethos, not just the films. And even if they are "meant to be the copyrighted characters", they clearly aren't, so there is no infrigement of copyright.

And if the pub has been trading as "The Hobbit" for more than 20 years, then that predates the films and therefore there is a case of "prior art".

Gwydion Sponsoring Member of TMP15 Mar 2012 3:09 p.m. PST

The answer is to rename it 'Denham's Hobbit' and put a sign with two fingers up to Hollywood on it. I'd definitely buy a pint if they did that.

MajorB15 Mar 2012 3:14 p.m. PST

'order a Gandalf' etc suggests passing off a trademark, almost certainly owned by the film company.

How can the name of a character in a BOOK, first published in 1954 be a trademark owned by a film company?

"Trade marks are not registrable if they have become customary in your line of trade"
link

I would say that a character name from a book that has been in print for nearly fifty years is customary.

Gwydion Sponsoring Member of TMP15 Mar 2012 3:35 p.m. PST

customary means owned by no-one – in common usage- you couldn't for example copyright the words 'vaccuum cleaner' – they are descriptive as well as customary to describe an appliance – but Hoover, Dyson etc all are, even though 'Hoover' is commonly used in the UK to mean vaccuum cleaner and has been around a lot longer than 50 years.
Gandalf was an invented character in Tolkien's work as you say. It was therefore intellectual property owned by Tolkien and then his literary estate (unless we turn up a Gandalf in a list of 16th century wizards somewhere). This has been sold to the film company who have the rights. Now whether this has been turned into a Trademark I don't know – but just because people have read and said and referred to the word Gandalf does not make it 'customary'. Read the examples in your link – people say the names of those companies everyday – it doesn't lessen the trademarked status of their logos one jot – familiarity is not customary if it is an intellectual property and is being maintained as such.

As I said I'm not defending anyone but there is no point saying it 'ought not to be' and therefore 'it isn't' so, when it quite clearly is or at least could well be.

Trademarking of characters from books, cartoons etc is a very specialised and complex field, but it is certainly possible to copyright the form of a character from fiction transferred to film – see 'New Dana Perfumes Corp v The Disney Store Inc – a Maryland case if you think it ain't so.
Tinkerbell is TMd by Disney in their film persona – even though the TM was owned by another company in the literary format. My advice would be to avoid Tinkerbell in relation to fairy products – everyone will be out to get you.

MajorB15 Mar 2012 4:02 p.m. PST

customary means owned by no-one

Where do you get that definition from?

This has been sold to the film company who have the rights.

Is that actually true, specifically in relation to the word "Gandalf"?

But this is of little import. The strongest case in favour of the pub's usage of LOTR related terms is that they have been doing so for over 20 years – well before any film company bought the rights to anything LOTR. I think the pub therefore has a prior claim.

stenicplus15 Mar 2012 4:13 p.m. PST

Gandalf was an invented character in Tolkien's work as you say. It was therefore intellectual property owned by Tolkien and then his literary estate (unless we turn up a Gandalf in a list of 16th century wizards somewhere).

Funny you should mention that… According to the font of all knowledge that is wiki:

The Old Norse name Gandalfr incorporates the words gandr meaning "wand", "staff" or (especially in compounds) "magic" and álfr "elf". The name Gandalf is found in at least one more place in Norse myth, in the semihistorical Heimskringla, which briefly describes Gandalf Alfgeirsson, a legendary Norse king from Eastern Norway and rival of Halfdan the Black.

Apparently an assortment of ducks, rams, lambs, nags and horses are preparing to sue a nation of publicans wink

Gwydion Sponsoring Member of TMP15 Mar 2012 5:02 p.m. PST

Remove all references to, images from, connotations with LotR and you can drink all the Norse Kings you want then. grin

Dayglo Sword15 Mar 2012 5:59 p.m. PST

'over 20 years – well before any film company bought the rights to anything LOTR'

Except for the films released in the 70's. Plus it's not just the film rights, it's the whole shebang. Open up any of ICEs MERP products from the 80's and you'll find the 'Saul Zaentz\Elan Publishing\Tolkien Enterprises' license. So much for 'prior claim'

Zaentz have owned the rights on most comercial usage for a very long time. The film makers\Games Workshop\etc own nothing, they mearly have a license to use certain phrases.

link

HumorousConclusion15 Mar 2012 11:47 p.m. PST

Legally speaking the pub is in the wrong and it's pretty blatant. But let's not pretend that this is taking money away from the creator of the Lord of the Rings. He was paid for his work years ago and the Saul Zaentz company has been trading off that purchase ever since by charging people for using his ideas.

There is something decidedly dodgy about a law that allows a company to profit off a work for years after the death of the author.

Goose66616 Mar 2012 3:38 a.m. PST

I also believe under US law, if the company with the right is not seen to be actively persuing and protecting those rights, they can be deemed to have "knowingly permitted" or some such and thus anyone can use the rights.

Which is why, the company sends out Cease and Descist type letters etc to small business which frankly have no real impact on their sales.. infact they might in a small way prompt people to read the books and thus maybe purchase more merchendise..

Its only a vague recollection, but would explain why such a large company would be chasing such a smaller one.

MajorB16 Mar 2012 4:39 a.m. PST

I have to ask, If SZC own the worldwide rights to the various names in dispute, why have they waited over 20 years before persuing their claim against a small privately owned business in the UK who is harming no-one? If anything, the pub is giving SZC's products free publicity!

Angel Barracks16 Mar 2012 5:21 a.m. PST

have they waited over 20 years before persuing their claim against a small privately owned business in the UK who is harming no-one

Maybe they only just found out about it!

There are no victimless crimes though, someone is being 'harmed'.
The owners of the copyright are losing out on sales of their invested in IP by people not paying for the right to copy.

That is one of the reasons why car insurance is so expensive.
The insurers raise their prices to cover the costs of people that think it is ok to drive without paying for insurance.
If people paid for what they should then the overall price would be less.

Just like if people paid to use IP instead of just stealing it then the cost to use IP may well be less.


the pub is giving SZC's products free publicity!

Maybe they don't want to be associated with drugs and drunken people.
Maybe they want people to pay for using their IP and not to just steal it.

MajorB16 Mar 2012 5:58 a.m. PST

Maybe they only just found out about it!

I find that extremely difficult to believe given SZC's track record.

The owners of the copyright are losing out on sales of their invested in IP by people not paying for the right to copy.

So what "sales" are they missing out on, except their "royalty payments" or license fees?

If people paid for what they should then the overall price would be less.

So if the pub paid what SZC want then the cost of further licenses would be less?

if people paid to use IP instead of just stealing

I'm not quite sure what you think has been stolen here?

Maybe they don't want to be associated with drugs and drunken people.

So, according to you, British pubs are full of druggies and drunken people?

Sane Max16 Mar 2012 5:59 a.m. PST

Oooh goody, I smell another 20-page argument about the rights and wrongs of IP, with 90% of the posters knowing nothing about the Law and caring less. Just what we need on TMP.

Take it from me, The Pub is in the wrong, the Movie Company do not want to 'do a hoover'* and let their valuable product become open to anyone to use as they wish, they have no choice but to take this action when they 'learn' of it.

I would also like to wager the Pub had a perfectly nice, English, Traditional Pub Name before some money-grubbing landlady decided to try and make a few quid and changed it.

*Margard, the IP is worth money, but if they let every man and his dog use it, eventually they will stand up in court and their opponent will reel of a series of violations that they knew about and allowed to continue unchallenged and the judge will rule the have lost control of it.

So, according to you, British pubs are full of druggies and drunken people?

Only the good ones. I suspect 'The Hobbit' is full of sweaty men with crisps in their beards, 40ish women with Dirty Blonde Hair who want to be called Galadriel in the sack, and beer that tastes like Gimli's Crotch-guard.

Pat

Angel Barracks16 Mar 2012 6:14 a.m. PST

So, according to you, British pubs are full of druggies and drunken people?

What do you mean by druggies?
If you mean people that take legal drugs such as alcohol then yes.
If you mean crack addicts then no.
Alcohol is a drug, a legal socially accepted drug, but still a drug.

So what "sales" are they missing out on, except their "royalty payments" or license fees?

Is that not enough?


I find that extremely difficult to believe given SZC's track record.

It is still possible though, hence I said maybe.
What you or I believe will not change the facts.


So if the pub paid what SZC want then the cost of further licenses would be less?

It would be a start.


You seem to not be seeing the bigger picture though.
I have tried to make it clear that things have effects beyond the obvious, perhaps I am unable to explain it well enough.
I have tried to be balanced and offer an alternate position, but those that do not wish to see it from the point of view of the person that has been stolen from have made up their minds already.

I have no doubt that those in favour of the IP stealing pub should the case go to court and show the pub to be in the wrong will still maintain the pub is allowed to infringe copyright.

What can you do eh.

Personal logo John the OFM Supporting Member of TMP16 Mar 2012 9:00 a.m. PST

Oooh goody, I smell another 20-page argument about the rights and wrongs of IP, with 90% of the posters knowing nothing about the Law and caring less.

What you or I believe will not change the facts.

grin

There was a Poll a short while ago on things that TMPers know nothing about, but are not afraid to state their opinion on. I think this one may have been one of the top vote geters.
A lot of the totally clueless postings are along the lines of "But it's just so unfair that…"

MajorB16 Mar 2012 9:23 a.m. PST

link
From that link:
"A Facebook campaign set up by the pub's users has more than 50,000 supporters."

Seems there's an awful lot of people who think SZC are being unfair, including even Sir Ian McKellen and Stephen Fry!

Andy Skinner Supporting Member of TMP16 Mar 2012 11:17 a.m. PST

They may have been using the name The Hobbit for a long time, but there are images that clearly are reflecting movie characters. I wonder if they could compromise on going back to whatever they were doing before the LotR movies.

andy

arthur181516 Mar 2012 2:10 p.m. PST

Assuming that the law is that one cannot use the name of a character from LotR without paying SZC for a licence, where does that leave the parents of one of my pupils, who actually named him 'Frodo'?

stenicplus16 Mar 2012 2:43 p.m. PST

Arthur1815,

depends if they dress him up in early medieval style clothes and try to make money out of him by being a ring-bearer at weddings…?

Angel Barracks16 Mar 2012 3:44 p.m. PST

by being a ring-bearer at weddings…?


LOLz

Sane Max17 Mar 2012 2:28 a.m. PST

where does that leave the parents of one of my pupils, who actually named him 'Frodo'?

Unless they invite people inside him for money, they are in the clear. They may indeed be "Ye Olde Hobbitte Armes Englishe Pubbee" target customer.

Pat

GNREP8 Inactive Member17 Mar 2012 4:05 a.m. PST

A Facebook campaign set up by the pub's users has more than 50,000 supporters."

--------------------------
i think the Raoul MOAT website had a lot of followers – didn't mean they were not anything other than a bunch of oxygen stealing police haters (I am of course not implying that the persons supporting this pub are somehow morally reprehensible cretins – just that 50,000 people agreeing with something doesn't make it right or legally correct)

MajorB17 Mar 2012 4:55 a.m. PST

just that 50,000 people agreeing with something doesn't make it right or legally correct

Maybe not, but that is one way that pressure is brougt to bear to get laws changed.

From the Facebook page:
"I can confirm that the SZC have contacted the press.

The SZC have stated that they would like to resolve the matter of our possible copy right infringement amicably.

The SZC wishes to avoid a lengthy court battle with Punch Taverns as it feels that there would be a role reversal in that the SZC would be David and Punch Taverns Goliath. (Snigger snigger!)

They have asked that we arrange to operate by way of License and that they would grant this License for a nominal fee of $100 USD per annum.

It does not, however, tell us what this License would entitle us to.

However, there is one thing we are 100% certain of and that is that the support of 48,000 people plus the support of Stephen Fry, Neil Gaiman and Sir Ian McKellen has got them a little FREAKED OUT.

I am sure they thought we would just roll over and bow down to their bullying tactics.

Picked the wrong bunch of Hobbits didn't they ?

As soon as we hear back from the Solicitors as to the terms and conditions of this license we will update you."
link

BTw, it's 55,000 now and rising.

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