paddling against the meme tide

[calimac]

There's a story floating around the Internet - and even floating around Potlatch committee meetings - that the Tolkien Estate has issued an intellectual property complaint against a button that does nothing more than mention Tolkien's name. As I heard the story orally, the Estate had even filed a suit. That particular variant does not appear to be backed up by anything I've seen posted online, and it should immediately ring an alarm bell anyway. A rule of thumb which has rarely, if ever, failed me: If you read about what appears to be a totally absurd lawsuit, either 1) there's a lot more to the story that you're not being told (the McDonald's coffee case is the classic example of this), or 2) it was thrown out by the judge at the first opportunity.

Same thing goes for the complaint version of the story as well. As various people, including LJers mnemex and scribblerworks, have been working it out on the MythSoc mailing list, blame is being thrown around pretty carelessly. The creator of the "While you were reading Tolkien, I was watching Evangelion" button says that what he received from Zazzle, the online merchant which manufactured and sold the button, was an e-mail saying, in his words, that "they were pulling the buttons for intellectual property right infringement." And, he adds, "guess who complained about their rights being infringed?"

He doesn't reproduce the e-mail, but I wonder if it read like the boilerplate e-mail sent by Zazzle to the creator of a "Colbert is God" hat. It read: "Design contains an image or text that infringes on intellectual property rights. We have been contacted by the intellectual property right holder and at their request we will be removing your product from Zazzle's Marketplace due to copyright claims."

That raised the question in the creator's mind as to who "the intellectual property right holder" in question was. Colbert? God? And though it says it's a copyright issue, you can't copyright a three-word phrase. It sounds more like a trademark issue.

In fact it appears that Zazzle has a long history of annoying the crap out of its clients on such issues, and attributing this to outside rights holders.

Here's another case where BoingBoing slammed a rights holder for a Zazzle takedown notice that turned out not to be the rights holder's doing.

So it seems unlikely that the Tolkien Estate lawyers, let alone Christopher Tolkien in his fastness seething (in the overheated minds of BoingBoing commenters) over the profanation of his father's name, picked on that particular button. It's possible that the Tolkien Estate did contact Zazzle at some point and warn against trademark infringement, but it sounds a lot like it's Zazzle that's embarked on the zealous censoring of anything with Tolkien's name on it, Just In Case. In short, what I'm reminded of is the infamous case when SFWA was asked by a couple of its members to take action against unauthorized postings of their work on Scribd, and SFWA responded by issuing formal DMCA takedown notices against a vast array of both violating and unviolating material on Scribd, even if the author approved of the posting, even if the file was just a bibliography or commentary on the work and not a violation of any kind.

Some of the commentary on the button issue refers to an actual legal case involving the Tolkien Estate regarding a book using Tolkien as a character. It should be noted here that a lawyer who has read the actual filings points out that what the estate has demanded cessation of is not the use of Tolkien's name but the commercial appropriation of his name in publicizing and selling the book, a publicity rights issue. [Corrected wording, thanks to the points of an anonymous commenter]

I have my own concerns with Tolkien Estate policies, but the portrait being floated around over this issue needs rebutting, even if doing so is as futile as battling the tides.

Comments

[scribblerworks.livejournal.com]

It seems to me that much of the anti-CT feeling that circulates was borne of his well-known dislike of Jackson's films. His close oversight of the Estate thus gets expanded into Sauron-like proportions, and I do think that is unjust.

[kalimac.livejournal.com]

I don't think that's really the fuel of this. The Jackson fans I've talked with about that don't seem angry at CT for disliking the movies so much as hurt and bewildered by it. But that does predate the Estate's suit over the prospective Hobbit films.

Nevertheless it seems implausible to me that the Estate-bashers would excuse their perception of the Zazzle issue if only CT had liked Jackson. I think it's more a case of self-perception of "owning" the authors. The parallel case is the one described by JRRT in Letter no. 292 to Joy Hill. "I once had a similar proposal [for a sequel to LOTR], couched in the most obsequious terms, from a young woman, and when I replied in the negative, I received a most vituperative letter." To discover that the author, or his estate, does not approve of your colonization of his work, whether it is or is not, should be or should not be, legal or illegal, generates the Rage of a Fanboy or Fangirl Scorned.

[scribblerworks.livejournal.com]

Yeah. You do have a point with that. I certainly did consider that in the background of this particular button case - more from the tone of the ranting than anything specifically said.

Ah well.

[jane-dennis.livejournal.com]

Thanks for posting this. I saw the bit on Boing Boing and found it hard to believe, but just dismissed it with a "There has to be more to this, or less, because it's so Not plausible as reported."

I have to admit that (after googling Evangelion) I also fail to see the woo-ha about the button. Is this supposed to be a dig at LotR fans? At best, it warrants a "So?" *shakes head*

[surliminal.livejournal.com]

I know nothing of these actual buttons or the exact properties of the Tolkien estate but would point out there could be more than copyright involved here: trademark could cover eg the particular design of the word "Tolkien " on the button eg in a particular font with particular artwork - if you imagine a logo on a teeshirt or on a button and then imagine someone copying it wholesale it doesn't sound so unreasonable to stop that, does it? (You can also get trade mark in particular use of colour scheme , place where mark is found, all sorts of stuff! but unlike copyrt, the protection only applies in rel to a particular class of goods or services in a particuar country, quite restrictively applied.)

Anither angle is that the Tolkien estate thought the button was in some way bringing the works (their (c)) into disrepute and invoking the moral right which accompanies copyright to prevent a protected work being used in such a context - US law doeasn't have moral rights, being only interested in money :) but rest of world decidedly does.

And as yr commenter pointed out, the case cited is actually about publicity rts not copyright at all = whch again has very specific rules and is not found in al countries (thus time some US states have it, UK and most EU does not).

So you see, not so inexplicable. In general legal reportage in Boing Boing tends to the polemic :)

[kalimac.livejournal.com]

The report just said the button was a case of "intellectual property rights," without saying what kind of intellectual property rights, and the Colbert hat case said the same thing. The report on the button showed an image of the button, and there was nothing about it to suggest a trademarked Tolkien logo. The case of the book, however, is in part about using the layout of the cover to suggest an authorized Tolkien book (and it wasn't the anonymous commenter who pointed out that this is a case of publicity rights - the commenter corrected the wording about the filing of the suit - it was the lawyer who read the filings who said that).

The mystery lies not in the nature of the claim, but in whether the Tolkien Estate actually directed Zazzle to take down the button, or if it's just Zazzle playing CYA and deflecting blame onto the Estate.

[surliminal.livejournal.com]

I know the latter is the bit you're interested in but as an actual IP/IT lawyer I occasionally get tired of the somewhat misleading coverage it usually gets in the techie press :) Also of the fact that every dispute is assumed to be about (c) when often it isn't.

Tolkien Laywers chimed in

[jeremy edmonds (from livejournal.com)]

As seen here ( http://www.boingboing.net/2011/02/25/tolkien-estate-censo.html ) Steven Maier contacted Cory Doctorow and pointed out that the Estate did not ask for the takedown, it must was Zazzle: "Zazzle has confirmed that it took down the link of its own accord, because its content management department came across the product and deemed it to be potentially infringing."

Re: Tolkien Laywers chimed in

[kalimac.livejournal.com]

Aha. I await the apologies from all those BoingBoing commenters who rushed in to denounce the Tolkien Estate and psychoanalyze Christopher Tolkien. I suspect I may be waiting a while.