Does Re-Imagining Lord Of The Rings From The Perspective Of Mordor Violate Tolkien's Copyrights?

from the will-we-find-out? dept

Slashdot recently pointed us to a Salon book review of a re-imagining of Lord of the Rings from the perspective of the “losers” in Mordor. The book, entitled The Last Ring-bearer was written by a Russian paleontologist, who has offered up a free download of the English translation.

In Yeskov’s retelling, the wizard Gandalf is a war-monger intent on crushing the scientific and technological initiative of Mordor and its southern allies because science “destroys the harmony of the world and dries up the souls of men!” He’s in cahoots with the elves, who aim to become “masters of the world,” and turn Middle-earth into a “bad copy” of their magical homeland across the sea. Barad-dur, also known as the Dark Tower and Sauron’s citadel, is, by contrast, described as “that amazing city of alchemists and poets, mechanics and astronomers, philosophers and physicians, the heart of the only civilization in Middle-earth to bet on rational knowledge and bravely pitch its barely adolescent technology against ancient magic.”

Sounds fascinating.

Of course, it also raises some copyright questions. The Tolkien estate is notoriously over-protective of Tolkien’s copyrights, and while the Salon review brushes over the copyright issues, it appears that there’s some stirring among Tolkien rightsholders to potentially go after this book. If they do so, they may run into trouble. The scenario seems remarkably similar to the case of The Wind Done Gone, a retelling of Gone With The Wind from the perspective of a slave in the original work. That book went through a big legal dispute and was eventually seen as legal, though the case was settled, rather than leading all the way to a full ruling on the topic.

In an era of growing “fan fiction,” which can often go quite beyond the bounds of the stereotypical “fan fiction,” this issue is going to become more and more important, and it’s about time that the courts made it clear that such rewrites are perfectly legal reimaginings that do not violate anyone’s copyright.

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Comments on “Does Re-Imagining Lord Of The Rings From The Perspective Of Mordor Violate Tolkien's Copyrights?”

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59 Comments
Anonymous Coward says:

It would be a very close call. I think the Wind Done Gone in part was a pardoy, in part didn’t use the character names, and the vast majority of the book was unrelated to Gone with the Wind, as the main character was sold and gone.

Re-using the same characters and just writing the same story from a different perspective is as derivative as it comes. Please consider the Books “Enders Game” and “Enders Shadow”, written from two different perspectives. The person who has the rights on this is the author, nobody else.

Mike, why do you have such a hard time with this stuff?

Anonymous Coward says:

Re:

Yes, but the expression includes the characters and the scenerio they find themselves in. The “universe” created by the writer (as a SciFi fan, I can think of many examples, such as creations CJ Cherryh or Greg Bear, example).

Put another way: would you consider it fair if Hans Solo, Darth Vader, and Chewy were put into a book (or even movie) set in the wild west? Perhaps another space opera, in a “different galaxy far far away”?

Dark Helmet (profile) says:

Re:

“Correct me if I’m wrong but isn’t copyright about the expression, not the idea?”

Ah, but the problem is the use of the characters. Characters can arguably (Arguably, I said!) fall under both trademark and copyright provisions.

For trademark, the theory is that if the character is used in relationship to a specific good and has developed what the law calls a “secondary meaning”, then consumers may identify a fictional character w/a specific tie to a product/author. Thus, use of the character otherwise could theoretically cause confusion. Generally characters must be EXTREMELY well known to qualify for this. Generally, his trademark protection would cover his/her name and physical appearances that are distinct.

A character described in writing can also be covered by copyright protections (potentially). To some degree, it can be argued that original authors retain rights to the use of their distinct characters in derivative works (minus, of course, Fair Use protections). This is a muddied area of the law. For instance, The Court has ruled that stock characters don’t qualify, as they are generally considered “idea” characters and are not fully expressed or created original expressions. There has to be a distinct original expression for the character to qualify.

Gaiman et. al. vs. McFarlane et. al. is a good example of how convoluted character copyright can be, especially in situations of co-authors or collaboration….

Dark Helmet (profile) says:

Re:

“Put another way: would you consider it fair if Hans Solo, Darth Vader, and Chewy were put into a book (or even movie) set in the wild west? Perhaps another space opera, in a “different galaxy far far away”?”

That question was already tested and answered by The Court. They specifically stated that such time-shifting of characters didn’t warrant enough original expression to qualify for new copyright protections and use.

“Had someone merely remarked to McFarlane one day, ?you need a medieval Spawn? or ?you need an old guy to move the story forward,? and McFarlane had carried it from there, and if later a copyeditor had made some helpful editorial changes, neither the suggester nor the editor would be a joint owner [of the copyright of the character].” — Gaiman et. al. vs. McFarlane et. al.

techflaws.org (profile) says:

“Barad-dur, also known as the Dark Tower and Sauron’s citadel, is, by contrast, described as “that amazing city of alchemists and poets, mechanics and astronomers, philosophers and physicians, the heart of the only civilization in Middle-earth to bet on rational knowledge and bravely pitch its barely adolescent technology against ancient magic.”

Kinda makes you wonder what spin he’ll put on the Lord of the Nazguls threat:

“‘Come not between the Nazgyl and his prey! Or he
will not slay thee in thy turn. He will bear thee away to the houses of lamentation, beyond all darkness, where thy flesh shall be devoured, and thy shrivelled mind be left naked to the Lidless Eye.’

Dan Zee (profile) says:

You have to read Lord of the RIngs first ....

The interesting thing here is that you have to have read The Lord of the Rings to know what The Last Ring Bearer is all about. So the Tolkein estate has not lost any revenue from the fan fiction, and it actually may spur additional sales of the books. But these days, being a copyright holder is all about restricting rights and not sharing rights.

vivaelamor (profile) says:

Re:

“For trademark, the theory is that if the character is used in relationship to a specific good and has developed what the law calls a “secondary meaning”, then consumers may identify a fictional character w/a specific tie to a product/author.”

I find it hard to believe that someone buying a book is unable to read the (usually gigantic) author’s name on the cover. If it’s an issue of something being implied as authorised then it would seem more sensible to require they put ‘unauthorised’ or something rather than denying the use of the characters. From the perspective of trademark, which in no circumstances is supposed to be there for an economic effect, denying the use of other authors characters is anti consumer and goes against the purpose of trademark.

The trademark argument seems to conflate the two premises between copyright (economic incentive, or authors rights in some countries) and trademark (consumer protection).

Dark Helmet (profile) says:

Re:

I may have been unclear. In the case of trademarked fictional characters, the product is rarely (never?) the actual book, but associated merchandise. Think, for example, of Mickey Mouse. Any backpack with MM on it is going to be assumed to be from Disney and of a certain quality. Knock offs featuring the Mickey Mouse character violate the trademark.

I wasn’t talking about trademarking characters with regard to use in other books in that instance…

Josef Anvil (profile) says:

How does Copyright apply?

If this is a free download then how does copyright apply? It’s like an author writing something then giving it away to whomever will take it. Can you really stop that? No more creating?

It’s not as if the author is making money off of someone else’s work. He’s just sharing his vision. Can you really stop that in court?

Marcus Carab (profile) says:

Re:

Re-using the same characters and just writing the same story from a different perspective is as derivative as it comes.

That hardly sounds like the case here… based on the above summary, this book is a critical parody that puts an entirely different spin on Lord of the Rings and makes you rethink the story by doing so (one thing that has always bugged me about LotR is the completely unfounded assumption that Sauron as evil and that the elves who live under the rule of hereditary god-kings are “free” – looked at from a different perspective, it seems like the story of an egalitarian populist uprising being quashed by an violently oppressive regime that believes anyone who looks different is a savage)

Marcus Carab (profile) says:

How does Copyright apply?

You brought this up in reference to Coming Through The Rye on another thread and sadly I must be the bearer of bad news again: making money has nothing to do with it. Infringement is infringement. He could be paying other people to read the book while handing out free copies of the original LotR along with it, and it wouldn’t make a lick of difference: he would still be liable, and an aggressive estate like Tolkein’s (very similar to Salinger’s) can probably block it (or at least make his life hell for a few years by trying)

Chronno S. Trigger (profile) says:

Re:

I’ve seen quite a few stumbling around the web. The idea of Star Wars in old west times is kinda common. As with anyone trying to make a point online, I can’t find those pages now, but I’ve seen quite a few artworks with the names, and a different set of action figures (R2 actually looked like R2, not a fat blacksmith).

Star Wars Steampunk is much more common.

Anonymous Coward says:

Re:

Further, you have the question of “these characters in this setting”. Any book that writes the same story from a different perspective is clearly derivative, because it requires the original story to guide it. Unless the writer aims at a clear parody, they are pretty much in trouble.

Put another simple way, the resulting book would not exist and story would not exist without the original book, the original’s character, and the original’s story line. It’s not a very hard thing to figure out.

Dark Helmet (profile) says:

Re:

“Put another simple way, the resulting book would not exist and story would not exist without the original book, the original’s character, and the original’s story line. It’s not a very hard thing to figure out.”

Meaningless, in this case. The work is clearly intended as commentary on the original with regard to presumptions of good vs. evil and how point of view determines those views. That’s the whole point of the book, to take one of the classic literary examples of pure good vs. pure evil and turn it on its head.

Parody, for copyright concerns, does not appear to require humor as does the classic definition. Rather, the key element is that the derivative work must make an attempt at commentary upon the original’s themes, happenings, setting, etc. That’s what the Suntrust case was all about….

Mark Christiansen says:

We lose a lot ...

We lose a lot by allowing copyright to cover characters and settings. Were copyright narrower, confined to the work itself we would have many sequels, prequels and variations on successful settings such as Tolkein’s Middle Earth. Of course many would be bad but many would be good. Clearly none should be allowed to pass themselves off as the original author’s own work. That isn’t so much a matter of copyright as proper attribution and perhaps trademark.

Consider classic old mythology stories. They come from many authors working the same characters and settings. Modern copyright law forbids this to our loss.

Anonymous Coward says:

We lose a lot ...

Yet, we would also lose when the original author’s characters, setting, and story lines are cheapened by easy knock offs and misleading situations. You encourage hack writers to slam together something based on someone else’s work, and you diminish the desire for the author to continue to work on new books based on those characters or situations.

Now, I will admit, the knock off books would certainly meet with Mike Masnick’s ideas of innovation, but this would be a clear situation where the original creator could be discouraged by cheap knock offs crowding the market and lowering the value of his original work.

btr1701 (profile) says:

Re:

> Mike, why do you have such a hard time with
> this stuff?

First you say it would be a “very close call”, then in the same post you chastise Masnick for having a hard time with it.

How wonderfully schizophrenic of you.

If it’s a “very close call” as you claimed, then the answer is hardly clear for anyone and having a “hard time” with it is to be expected.

Chronno S. Trigger (profile) says:

We lose a lot ...

But authors (and every other person in the world) have to deal with that already. It’s not hard to make a cheap knockoff and not violate any laws. It happens all the bloody time.

I know you may think otherwise, but people as a hole aren’t that stupid. They can tell a cheap knockoff from the real thing. It’s even easier when the cheap knockoff doesn’t even claim to be the real thing (as in this case).

Granted, that seems to be a “problem” you’ve been trying to fix. People are smarter then you think, but you don’t like that. You can’t take advantage of smart people (hell, you’re an idiot, so you can’t take advantage of average people).

Jesse Jenkins (profile) says:

Just to toss another one into the mix, I thoroughly enjoyed the musical “Wicked” which is a re-telling of the “Wizard of Oz” from the Wicked Witch’s viewpoint. I believe Mr. L. Frank Baum is deceased, and that the title makes direct reference to one of the characters. It also happens to be an adjective, if that’s important. I wonder what this work’s copyright situation is, and how it would differ from the re-telling of the Lord of the Rings? Just a thought.

David Liu (profile) says:

We lose a lot ...

I don’t really think that’d actually happen though.

I’m not a writer nor a publisher, but I would think that the book market, with its gatekeepers at the ready, kick out all these cheap knockoffs and never let them enter the market if they weren’t any good. And if the hack writers were to release them online, they’d most likely languish in obscurity for being hack job releases. Finally, if they were to become popular and/or any good, they would still not be recognized as canon.

I read a lot of random doujinshi (i.e. fanfic comics based on existing japanese comics), and I don’t make the mistake of believing that what I read in these fanfics are to be part of the canon of the original work. I think you think too little of the original readers. They can tell what the original work is from the hack slamjobs that others might try to put out.

Jeff Rife says:

Re:

Because “derivative works” as defined in US copyright law includes only the same story moved to a different medium. For example, a movie made from the story of a book.

The law specifically does not include using the same characters to tell a different story as a derivative work. Only some very poor court rulings (none at the USSC level) have expanded this to essentially allow copyright of ideas.

In other words, the character Gandalf in Middle Earth is just an idea, and the story of how he was a power for “good” in Middle Earth is the copyrightable LotR. The story of how he was “bad” in Middle Earth is a different copyrightable work that is not a derivative of LotR (at least not as far as 17 USC is concerned).

Anonymous Coward says:

Re:

I don’t see that as contrary to what I posted at all. You seem to be basing that statement on a false, “all or nothing” dichotomy.

Their may be greater or lesser incentives to produce, which will likely result in greater or lesser production (as opposed to either production or no production).

Saying that people produced (at some level) when there wasn’t incentive X does nothing to refute the claim that incentive X is, in fact, an incentive.

jonakajon (profile) says:

Reimagining Lord of the Rings

It is not a retelling of the War of the Ring. It picks up the story after the war is over and while the ?good guy?s? are mopping up in Mordor.

There are one or two short flashbacks

It tells a tale from the perspective of ?opposition to the rule of Gondor? in Middle Earth.

It is worth a read as it is better then fan fiction but is not from a polished professional. Call it written by a talented amateur who needs an editor.

Burck says:

At heart here is not money or law, it is quality. Tolkien was an extraordinary thief when it came to themes but also an exceptional synthesizer of stories and themes. I can’t speak to quality in this case not having read the piece but there is something to be said for an estate protecting the integrity of a work regardless of monetary benefit. That being said, if the market deems that this story is of comprable quality without defaming the original author, who are we to argue. Correct me if I am wrong but there is no claim to authenticity of authorial statement right? If it’s any good it will survive. If not it will disappear.

vivaelamor (profile) says:

Re:

“I may have been unclear. In the case of trademarked fictional characters, the product is rarely (never?) the actual book, but associated merchandise.”

Thank you for the clarification. Still, I think it highlights an issue with trademark that isn’t limited to the (hopefully entirely) theoretical application to books. To clarify myself, I wasn’t trying to refute anything you said, I just thought you’d brought up an interesting point worth discussing.

A character isn’t just a piece of advertising, it’s a piece of culture. While a company tagline is arguably defensible by trademark for confusing people, I would think that the positive effect of consumer choice outweighed the supposed confusion by other companies using the same character. The only reason people might believe that Mickey Mouse merchandise is by Disney at the moment is the fact that they’d likely sue if it wasn’t. Promoting buyer awareness of the supply chain while allowing consumer choice would seem a far more effective plan than banning consumer choice supposedly for their own good.

Of course, Disney aren’t likely suing people to protect consumers, but doing so to preserve a monopoly. Culture is a valuable asset and using trademark to monopolise that asset is a perversion of the system.

This ties in with copyright as the same analysis should be applied when considering the supposed economic benefit of copyright. Fair use isn’t only about what someone copying can get away with, it’s also about what consumers have access to. This book is highly unlikely to have any impact on the sale of Tolkien’s books, in fact it may increase interest in them. Even accepting the premise of copyright, why should consumers be denied a book which is likely to have no negative impact on the author of the ‘original’ ideas?

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