Tolkien Estate Censors the Word "Tolkien"

An anonymous reader writes "Following their recent attempt to censor a work of historical fiction containing Tolkien as a character, the estate have now issued a takedown notice to someone making buttons with the words 'While you were reading Tolkien, I was watching Evangelion' on them, claiming 'intellectual property right infringement.' Predictably, a new store has appeared offering a range of censored Tolkien items, and the 'offending' product has had vastly increased exposure as a direct result of the removal."

Comments

Tried to make up a scenario, failed due to filter.

[intellitech]

Apparently, the filter won't allow me to repeat Tolkien's name more than a few times in a row.

Filter error: Too much repetition

Didn't know slashdot caved, too.

The gift of Illuvatar

[Anonymous Coward]

After death, lawsuits.

Re:Tried to make up a scenario, failed due to filt

[Shikaku]

Yo dawg, I heard you like Tolkien, so I [DMCA'd]

Awful Pun incoming

[jmac_the_man]

It's not like the author played a big role in the censored story, though. It seemed like he was just thrown in to be there. Like, you know, a Tolkein character.

Re:Awful Pun incoming

[JustOK]

he was tolkien a big joint just before he posted.

Re:Awful Pun incoming

[maxwell demon]

Joke's funnier when you spell it right.

He didn't want to get sued by T*lk**n Estate.

Enough of this already

[PCM2]

Can we please get off this hobby horse? The Tolkien estate isn't "censoring speech," it's protecting its trademarks, which it is required to do by law. If this guy had made a bunch of buttons for himself and as many of his friends as wanted them (all three), nothing would have happened. Instead he set up a store on Zazzle and tried to sell them. Zazzle has a clear policy that it will not sell items that violate copyrights, trademarks, or other intellectual property. These buttons do that. So the Tolkien estate complained, this guy's product was pulled, end of story. He wasn't sued, he wasn't thrown in jail -- in fact, he can still go buy a button maker and make himself some buttons and nothing would happen to him. The idea that he's being "censored" is silly, and there are lots of companies that are far more litigious about such things than the Tolkien estate.

Re:Enough of this already

[circletimessquare]

nobody here dislikes tolkien or his estate. but everybody here dislikes the bullshit intellectual property laws that enable this behavior. your rant assumes the wrong target. nobody is gunning for tolkien or his estate, they are gunning for bullshit laws

Re:Enough of this already

[calmofthestorm]

> The Tolkien estate alleges these buttons do that.

FTFY.

Re:Enough of this already

[Daniel Dvorkin]

A historical figure is not, and cannot be, anyone's property. End of story.

Re:Enough of this already

[mahoney.d.82]

You must be new here, I can tell by your UID.

Re:Enough of this already

[Travelsonic]

It IS censorship, whether or not it is JUSTIFIABLE censorship is another matter entirely.

Re:Enough of this already

[Audiovore]

But Tolkien alone is merely a name, which is not trademark-able. Trademarks are for logos and such, what they are trying to do is eliminate all use other than what they see fit. What if someone wrote a book with a serial killer in it with the last name of Tolkien? They have no leg to stand on, as its merely a name.

Re:Enough of this already

[imthesponge]

Except "Tolkien" in this case is a dead person's name, not a brand.

Re:Enough of this already

[jimhill]

The idea that a man's very name can be placed under legal protections this sweeping is utterly absurd and I think that's what has so many people in a tizzy.

I have no problem with laws allowing the Tolkien estate to prevent someone from publishing "Gutter Sluts by JRR Tolkien" and using the 4-letter symbol on the cover. Being able to deny someone the privilege of even USING the name in another context? That's wack, yo.

Re:Enough of this already

[PCM2]

A historical figure is not, and cannot be, anyone's property. End of story.

And yet Ford is a valid trademark. Weird, ain't it?

Re:Enough of this already

[Jafafa Hots]

Trademarks to WHAT?
Did Tolkein sell a line of buttons also so that this is likely to cause confusion in the minds of consumers who thought they were buying a genuine Tolkein button when in fact they aren't?

I mean, that was after all the reason and justification for ALLOWING trademarks (notice I said allowing not recognizing. This is not a right being recognized by law, it is a privilege granted by law given certain provisos)

Trademarks are supposed to be limited to a type of industry. That's why Apple Computers and Apple Records and Apple Rubber Company can co-exist and it was only when Apple Computer got into the music business that Apple Records had any complaints.

Seriously. The guy wrote books, and therefore his estate should be allowed a blanket trademark on ANYTHING bearing the name Tolkein? Even cultural references? No, that's nonsense.
And it's also nonsense that the law requires them to complain. The law requires them to complain about INFRINGEMENT, meaning someone selling a competing product using their TM or passing something off as made by them OR liable to cause confusion. NOT anything that simply MENTIONS the name.

Re:Enough of this already

[compro01]

Unfortunately, US trademark law does allow this absurdity.

http://tess2.uspto.gov/bin/showfield?f=doc&state=4009:7a8v43.2.3

Re:Enough of this already

[MoonBuggy]

The Tolkien estate isn't "censoring speech," it's protecting its trademarks, which it is required to do by law.

Quoting Cory Doctorow, from the BoingBoing coverage: "a writer I admire was forced to put a series of books that in no way infringed upon Tolkien's copyrights out of print because the estate threatened to make her publisher's life a living nightmare (not naming names, because the writer has chosen not to go public with the story)."

Zazzle has a clear policy that it will not sell items that violate copyrights, trademarks, or other intellectual property. These buttons do that.

A very, very dubious claim. Simply using a word is not wholly sufficient for trademark infringement.

More generally, this is a fine example of what's wrong with intellectual property law. The guy's not only making his money from work his father did almost sixty years ago, but preventing others from even using his father's name. Trademarked or not, it's worthwhile stopping and questioning whether the legal framework that allows and encourages this is in the public interest or not. Again, quoting Doctorow "The professional descendants making millions off a long-dead writer have become a serious impediment to living, working writers -- and readers. If this isn't the greatest proof that extending copyright in scope and duration screws living creators and impedes the creation of new works, I don't know what is."

Re:Enough of this already

[justsomecomputerguy]

"Fortunately, the trademark laws are fairly cut and dried. To be in violation, you either need to be using a trademark without permission in a way likely to cause confusion, or using the trademark in a way that causes "trademark dilution" which "dilutes the distinctive quality of the trademark". You seem to be doing neither in this case." Note - I am not a lawyer, I just found and paraphrased this by googling "referencing a trademark"

Re:Enough of this already

[KingSkippus]

Dammit, I accidentally missed the "Insightful" on the pull-down list and hit the next item up, "Redundant." I'm posting to negate my moderation on this post. >:-(

Re:Enough of this already

[PCM2]

nobody here dislikes tolkien or his estate. but everybody here dislikes the bullshit intellectual property laws that enable this behavior. your rant assumes the wrong target. nobody is gunning for tolkien or his estate, they are gunning for bullshit laws

I don't know about that. Go back and see all the griping about the evil Tolkien estate on the last thread, a few days back.

And let me throw something else into the mix. This guy seems to be reacting like the vast, evil Tolkien estate is bringing the hammer down on one hapless individual who made a few buttons. What he doesn't seem to grok is that the Tolkien estate isn't going after one guy, it is going after Zazzle, which, if it were allowed to print Tolkien-related products with impunity, could do the Tolkien estate a lot more damage than one guy with some buttons ever could. A law that enables a company to maliciously take down one guy might be a bullshit law, but a law that protects an entire product licensing business is not. (At least, not necessarily.) Case in point: Zazzle drafted policy long ago that it is not willing to fight the issue.

Now this guy has some options. As I said, he could make the buttons himself. He could also look for another printer that has fewer qualms about using the word "Tolkien" in its offerings. It strikes me that he's chosen Plan C: Whine about it, wrap himself in the flag, and settle for a pat on the back from the Internet.

Re:Enough of this already

[PCM2]

> The Tolkien estate alleges these buttons do that.

Fair enough. So this guy should challenge Zazzle's decision to remove the product. If they have no procedure for that, or if they won't budge, he should find another vendor or make the buttons himself.

Re:Enough of this already

[Anonymous Coward]

See, you can't trademark someone's name.

I was chatting with Tolkien last week. His name is actually Rob Tolkien.

If I were to print this, would it suddenly be taken down by the "Tolkien estate"?

Or is it "reading Tolkien" that magically makes it some sort of infringement?

WTF?

Re:Enough of this already

[TheSpoom]

Watch this: Microsoft. I just said a trademarked brand name, and yet no laws have been violated.

You can't trademark someone's name unless actively being used in commerce, and only for a specific field. Further, they weren't claiming to be Tolkien, they were simply referencing him, which is completely legal in nearly all circumstances, trademarks be damned.

Re:Enough of this already

[olsmeister]

I had mod points all last week. Now, when I really need them, I don't. +1

Re:Enough of this already

[Bogtha]

it's protecting its trademarks

No it isn't. A trademark is not ownership of a word. It is a tool to allow the public to know that they are getting the genuine thing when they buy something. Referring to somebody else's trademarked goods is fine. Representing your own goods with somebody else's trademark is not. These buttons merely referred to Tolkein, they did not give the impression that they were one of his works.

If merely referring to a trademarked good was infringement, your comment would be infringing Zazzle's trademark.

Re:Enough of this already

[vadim_t]

This usage should fall under nominative use use, though.

The product or service cannot be readily identified without using the trademark (e.g. trademark is descriptive of a person, place, or product attribute)

Check.

The user only uses so much of the mark as is necessary for the identification (e.g. the words but not the font or symbol)

Check, impossible to use any less than a single word.

The user does nothing to suggest sponsorship or endorsement by the trademark holder. This applies even if the nominative use is commercial, and the same test applies for metatags.

I see nothing in "While you were reading Tolkien, I was watching Evangelion" that suggests endorsement by the Tolkien Estate, check.

Additionally, this means the estate shouldn't have anything to worry about:

Furthermore, if a use is found to be nominative, then by the definition of non-trademark uses, it can not dilute the trademark.[2]

Re:Enough of this already

[Firehed]

Ford is a company named after its founder. Tolkien is an author. To my knowledge, there is no Tolkien, Inc. founded by said author.

Also, you're able to use Ford freely when talking about the person, or in any context that's not Ford, Inc. Which is a good thing, otherwise my aunt would be a walking trademark violation after having married into the name (no relation to those Fords, though).

Re:Enough of this already

[Cwix]

Yea but is "Henry Ford" a valid trademark?

Re:Enough of this already

[PCM2]

Except "Tolkien" in this case is a dead person's name, not a brand.

So if I come up with a new salad dressing, can I put Paul Newman's name on it?

Re:Enough of this already

[Tridus]

Why? There's been a steady progression of increasing asshattery shown by the various articles.

If Christopher Tolkien wants to act like a giant douche while living off someone elses work, what's to stop us from talking about it?

Re:Enough of this already

[imthesponge]

No, but you can put his name on a button. Just like you can't write a book and put Tolkien's name on it.

Re:Enough of this already

[green1]

It all depends how you use it. I can say that I drive a Ford, and that's perfectly legal. I can wear a button saying that I hate Fords, I can even publish a book about how Henry Ford lived, that's all perfectly legal. What I can't legally do is build a car and call it a Ford, Or operate any automotive business with the name "Ford", because that is protected by trademark law. (I could however start a landscaping company called "Ford's landscaping" and it would NOT infringe on the trademark because it's not competing in the same market segment as the car company by the same name (for example see apple computer vs apple records))

If the person published a book and claimed to be Tolkien then the concerns of the Tolkien Estate would be valid. But that is not what is happening here, instead they are simply talking about the historical figure Tolkien which is perfectly legal and there's nothing (legal) that the Tolkien Estate can do about it.

Re:Enough of this already

[PCM2]

No, but you can put his name on a button.

I wouldn't be so confident until I talked to a lawyer and did a trademark search.

Re:Enough of this already

[PCM2]

See, you can't trademark someone's name. I was chatting with Tolkien last week. His name is actually Rob Tolkien. If I were to print this, would it suddenly be taken down by the "Tolkien estate"?

I don't think you understand how trademarks and licensing work.

Re:Enough of this already

[Daniel Dvorkin]

Thank you!

Re:Enough of this already

[Anonymous Coward]

I'd just like to add that there's a long standing precedent that even direct competitors can use a trademark, as long as they are using it as descriptive of the actual trademarked product. For example, Pepsi is well within it's rights to state "2 out of 3 hip skateboarders prefer the taste of Pepsi over Coke", even though Coke is trademarked by the Coca-Cola company. You even see it when products are trying to claim how similar they are: "If you like Cheerios, try HouseBrand OatRings." - This is perfectly allowed as long as it's clear that the product is not affiliated in any way with Cheerios or its manufacturer (which is why you'll always see a disclaimer somewhere on the box - it's sufficient, but not necessary.) Again, the point of trademarks is not to monopolize the use of a word, but to limit confusion about what's the "official" product, and what's an imitation.

I have no clue as to why anyone would think these buttons violate trademarks. The use of the word "Tolken" is clearly descriptive, and is clearly referring to the official Tolken-brand entertainment-like fiction product.

Re:Enough of this already

[echucker]

Ever heard of Corbis? That's pretty much what they do. Einstein and the Wright Brothers immediately come to mind.

Re:Enough of this already

[Urza9814]

It's a guy's NAME! What next, political protestors being silenced for using the name of a politician?

Re:Enough of this already

[Thangodin]

And if the Ford Motor Company had taken this stance, Brave New World would have been banned, and Aldous Huxley would have been sued into penury.

This is called rent seeking behavior, and it's almost always a bad thing, because it diverts resources and effort away from making things towards owning them. It blocks off whole fields of new enterprise, and it's entirely state dependent--if the law is stuck down, or the state loses the power to enforce it, all the wealth evaporates. So, if foreign countries decide to ignore our copyright laws, we're broke. But if we're still making stuff that they want, we're still in business.

Re:Enough of this already

[WitnessForTheOffense]

If you're required to misrepresent reality in order to not run afoul of a law, the law needs to change, not reality.

Re:Enough of this already

[PCM2]

Ford is a company named after its founder. Tolkien is an author.

But the product licensing and merchandising associated with Tolkien's name and works is quite definitely a business.

To my knowledge, there is no Tolkien, Inc. founded by said author.

That would be the Tolkien Estate, Ltd.

Re:Enough of this already

[causality]

See, you can't trademark someone's name. I was chatting with Tolkien last week. His name is actually Rob Tolkien. If I were to print this, would it suddenly be taken down by the "Tolkien estate"?

I don't think you understand how trademarks and licensing work.

I understand that the man is (unfortunately) deceased and has been for some time. Thanks to the legal fiction of his "estate" plus nearly perpetual copyright the rest of his family gets to sit on their asses and make money from his corpse since 1971. If that were how I obtained my livelihood I think I'd be a bit more meek about it.

I definitely wouldn't be making legal threats over a button that happens to mention the author's name. This is like Kraft Foods threatening legal action because you made a bumper sticker saying "while you were drinking Maxwell House I was drinking Folgers." That's protected speech. It is the expression of a personal preference. It does not threaten Kraft's ownership of the Maxwell House trademark. Likewise, saying "while you were reading Tolkien I was watching Evangelion" is a statement of a personal preference -- no claim is made that this is an official licensed product or represents an official position of the Tolkien estate. If such a claim were made I would support this maneuver, but that just isn't the case.

What a contrast to the way Hormel handled the use of the word "spam" to describe unsolicited commercial e-mail. "Spam" is a trademark of theirs. They could have gone apeshit and launched a ton of lawsuits over it if they really wanted. Instead they decided to allow this use. They were good sports about it. They earned some respect for that, because it's a respectable thing to do.

It's time to separate your personal feelings about a man who was, without a doubt, a great author from the actions of his estate which seem determined to give him a bad name. If I could make money from work that was entirely done by a long-dead ancestor I'd consider myself unusually fortunate. I wouldn't feel threatened by every little use of said ancestor's name so long as there was no blatant infringement, which this definitely is not.

Re:Enough of this already

[DJLuc1d]

What I have a problem with is that this button is, to me, a criticism of Tolkien. While it may not be explicit criticism, i.e., 'Tolkien was a bad writer' I think it is very much implied. Under section 107 of the 1976 act, criticism is covered under fair use. Although the article doesn't say which law the Tolkien estate is citing, or even that they are using US law (although they have been fond of it in the past), I suspect it would have very little impact on "(4) the effect of the use upon the potential market for or value of the copyrighted work"

Re:Enough of this already

[bunratty]

Oh, of course. We should banish all patents and copyrights, and now trademarks, too, huh? Can we for once get an explanation of how this would benefit society? If someone could finally make a good argument, something beneficial might happen. Continually whining that you don't like certain laws and making slogans like "information wants to be free" or "I don't believe in imaginary property laws" won't cause any change. Where can I find a rational, thoughtful discussion of the issues by someone who understands what they are?

Re:Enough of this already

[russotto]

And let me throw something else into the mix. This guy seems to be reacting like the vast, evil Tolkien estate is bringing the hammer down on one hapless individual who made a few buttons.

Because they are.

What he doesn't seem to grok is that the Tolkien estate isn't going after one guy, it is going after Zazzle, which, if it were allowed to print Tolkien-related products with impunity, could do the Tolkien estate a lot more damage than one guy with some buttons ever could.

Zazzle is just the printer. By going after Zazzle, they are going after someone who has no real incentive to fight them (because it's more trouble than it's worth for one low-volume customer). It's actually worse than if they were to go after the button designer personally.

Case in point: Zazzle drafted policy long ago that it is not willing to fight the issue.

That's not a "case in point". That's a demonstration of how the law invites abuse and invention of restrictions through legal intimidation.

Re:Enough of this already

[JustOK]

While you were posting this, I was drinking a Tim Horton's coffee.

Re:Enough of this already

[keeboo]

What I can't legally do is build a car and call it a Ford, Or operate any automotive business with the name "Ford", because that is protected by trademark law. (I could however start a landscaping company called "Ford's landscaping" and it would NOT infringe on the trademark because it's not competing in the same market segment as the car company by the same name(...)

Sounds pretty much like the the VAX case btw.

Re:Enough of this already

[causality]

everybody here dislikes the bullshit intellectual property laws that enable this behavior.

What law? There is no law enabling such behaviour.

Is this how intellectual property gleans so many negative myths?

There's absolutely a law enabling such behavior.

The only reason why Zazzle, as a storefront, is so (otherwise irrationally) paranoid about selling anything that might infringe on a trademark is .. wait for it ... because they don't want the expense of defending against a trademark lawsuit that would be brought by an estate with deep pockets. If it were not possible to launch an expensive lawsuit over such a trivial and obviously non-infringing use of the word, Zazzle wouldn't have such a policy.

Without such IP laws, Zazzle would have no business reason to shut down one of their own customers. Because there are such IP laws, Zazzle is having to choose between one frustrated customer and one long, extremely expensive court battle. That's not really a choice especially for a business.

You see, that's the cause of this effect. You didn't realize that on your own because you're looking at the surface only. You need to look about 1mm beneath the surface to appreciate why this is happening.

It's negative alright but it is no myth.

Re:Enough of this already

[reub2000]

If there was no law, then they would expect the court to dismiss the case within a few minutes.

Re:Enough of this already

[sixsixtysix]

Zazzle has a clear policy that it will not sell items that violate copyrights, trademarks, or other intellectual property. These buttons do that.

Let's pretend I reviewed the *whatever* book(s) or movie(s), and published my review (one sentence, say, "I think *whatever* is retarded" ["I think" would be superfluous, actually] or 100 sentences) via t-shirt, button, newspaper, blog, etc. If that is clearly violating anything, then something is wrong. If any publisher could print a review or opinion about *whatever* for money, then this guy can make a button (and sell it, even). I'd wager zazzle censors 100% legit parodies, too. None of these printing companies (zazzle, cafe press, etc) are ever going risk even the modicum of legal action. It's the same shit that happens with video sites. It could be legit, but they'd rather be big pussies and cave. It's all part of the broken court system. You should never be able to win just by having more money.

Re:Enough of this already

[sixsixtysix]

or Ford's Escort service ;P

Re:Enough of this already

[initialE]

I don't know about whether this is representative about what is wrong about IP law in general, what it really shows is what is wrong in what people perceive IP law to be. Remember this premise was never tried in a court of law, so far all that have been passing around are a bunch of dubious threats.

Re:Enough of this already

[TheVelvetFlamebait]

So the behaviour that intellectual property enables is frivolous lawsuits? Isn't that more of an issue with the courts in general?

Re:Enough of this already

[SudoGhost]

Well, you can, actually. It's not easy to do, but certain people have done it. Martha Stewart, for example. Personal names are included in the class of common words that may not secure protected trademark status until secondary meaning has attached. Tolkien would certainly fit in this category. What kind of elves are they? Tolkien elves you say? Certainly fits the criteria of a secondary meaning.

Re:Enough of this already

[TheVelvetFlamebait]

If there was no law, then the Tolkien estate couldn't expect justice when they actually do deserve it.

Re:Enough of this already

[PCM2]

What I have a problem with is that this button is, to me, a criticism of Tolkien. While it may not be explicit criticism, i.e., 'Tolkien was a bad writer' I think it is very much implied. Under section 107 of the 1976 act, criticism is covered under fair use. Although the article doesn't say which law the Tolkien estate is citing, or even that they are using US law (although they have been fond of it in the past), I suspect it would have very little impact on "(4) the effect of the use upon the potential market for or value of the copyrighted work"

The problem with this story in general is that it's almost completely devoid of facts. The only links to further information are to the guy's original blog post, which is titled (helpfully enough), "The J.R.R. Tolkien Estate can go fuck itself." It doesn't say what the complaint was, nor does it even say definitively that it was the Tolkien Estate, Ltd. that filed the request. (It could have been some other company, for all we know, such as Middle-Earth Enterprises, which owns some of the merchandising rights to The Hobbit and The Lord of the Rings.) If he had posted Zazzle's actual email it might have been helpful, but there's nothing. The guy who made the buttons seems more interested in publicity than in actually discussing the matter.

Re:Enough of this already

[causality]

Where can I find a rational, thoughtful discussion of the issues by someone who understands what they are?

You can create one yourself. It's sort of like that saying "if your happiness depends on what other people do, I guess you do have a problem."

 

Oh, of course. We should banish all patents and copyrights, and now trademarks, too, huh? Can we for once get an explanation of how this would benefit society? If someone could finally make a good argument, something beneficial might happen. Continually whining that you don't like certain laws and making slogans like "information wants to be free" or "I don't believe in imaginary property laws" won't cause any change.

Banishing all of it would mean moving from one extreme to another extreme. It's a failure to appreciate that the extreme is the problem.

Copyright was intended to be a balance, an equal exchange. The government is kind enough to grant creators a temporary monopoly over their works. That's society's end of the bargain. After that monopoly expires, the works become public domain and that enriches society by providing readily available art. That's the creator's end of the bargain. Simple.

Now then. The original duration of copyright was 14 years. This was during the late 18th century. At that time, the physical printing press was the most advanced way to distribute a written work. Here we are in the Information Age. In fourteen years' time an author can reach a much larger audience at significantly less cost than what anyone in the 18th century would have dreamed possible. Therefore, if anything, the original duration of 14 years should be reduced to maintain the same balance we once had.

That has not been the case. Instead copyright has been extended and in some cases it can be as long as the author's lifetime plus 120 years. There are no two ways about it: that means society is getting screwed over because the creators are no longer holding up their end of the bargain. It is no longer an equitable balance between the need to reward creators and the enrichment of the public domain. The reason why so many people no longer respect copyright is because it is no longer respectable. It has turned into a blatantly one-sided money grab. When people see that for what it is, they have contempt for what is obviously an unjust law.

The problem with patents is that too many of them are granted for "inventions" that are too obvious and/or have abundant prior art. It's difficult and potentially very expensive to invalidate a patent that should never have been granted. The other problem with patents is their use as an economic weapon, especially what are called submarine patents. None of this serves to incentivize innovation and invention. Patents are not nearly so broken as copyright but they're on the same path.

The problem with all of them, like the trademark in this case, is that the prospect of an extremely expensive lawsuit brought by an estate or corporation with very deep pockets is quite intimidating. This is not really an infringing use, but how many tens of thousands would someone want to spend to prove that? So Zazzle pulls the product because they are a business and even though they would likely prevail, defending against legal action brought by the Tolkien estate is not going to profit them.

Perhaps we need a "loser pays" system specifically for intellectual property laws. If you defend the lawsuit and win, the plaintiff gets to pay all of your legal expenses plus any time you missed from work plus any transportation costs and other related expenditures. Then if you know you're not actually infringing, you can go ahead and hire the best lawyers money can buy. That wouldn't fix copyright law but it would go a long way towards curbing the abuses that keep occurring around IP law in general.

Re:Enough of this already

[canajin56]

The Tolkien estate isn't "censoring speech," it's protecting its trademarks, which it is required to do by law.

By your own (completely and utterly false) rules, you MUST be sued into oblivion now. You said the T word, they are required by law to sue you.

Re:Enough of this already

[maxwell demon]

HOWEVER, the Tolkien estate is still LEGALLY REQUIRED to sue anyone they know who is using their mark without their permission.

I know laws can be pretty stupid, but I'm sure it cannot be that stupid.
I bet they only need to sue anyone whose use is infringing.

Otherwise the trademark "Coke" would be long lost because they didn't sue any of the millions of people who used that word daily to refer to, well, Coke.

Re:Enough of this already

[PCM2]

Because they are.

They are not. The guy can go get his buttons printed anywhere he wants. The company they told to remove the buttons is Zazzle. Nobody else is affected in any way.

Zazzle is just the printer. By going after Zazzle, they are going after someone who has no real incentive to fight them (because it's more trouble than it's worth for one low-volume customer). It's actually worse than if they were to go after the button designer personally.

No it isn't. Zazzle isn't "just the printer." They print the buttons on demand and handle all order processing and fulfillment. Generally speaking, more of the revenue from each sale goes to Zazzle than to the designer. And Zazzle can potentially offer thousands of different Tolkien-themed products -- provided the Tolkien Estate allows it. That's the whole thing about trademark law is enforced: You have to demonstrate that you're vigorously protecting your trademarks. Going after Zazzle, which has every incentive to be a repeat offender if it can get away with it, makes much more sense than going after one guy who uploaded a JPEG to Zazzle so he could get a dollar or two per button.

Re:Enough of this already

[ColdWetDog]

Unfortunately, TESS doesn't allow for persistent searches. Searching on the site for "Tolkien" is interesting, however. The mark "JRR Tolkien" as his signature is trademarked and for some reason the USPTO thinks he's 'alive' (perhaps that word doesn't mean what I think it means). However, the word "Tolkien" as text appears to have been abandoned in 2004. I have no idea what that really means since this is a government / legal issue which tends to define words however they feel like it.

Could they have dropped just the text term and kept the trademark for his signature?

Re:Enough of this already

[PCM2]

If it is censorship then it's a very mild kind. If I'm a magazine editor and I choose not to accept an article from you because I don't like the things you say in it, that could be considered a form of censorship, too -- but just as in the button case, you're free to go somewhere else to publish your work. It's not like you've been gagged.

Re:Enough of this already

[ColdWetDog]

Anyone who thinks that limiting the ability to publish buttons is a "serious impediment to living, working writers" needs to get out more often.

What the offended buttoneer should have done is to contact a lawyer of appropriate skill and jurisdiction and obtained a reasoned judgment as to their options. Babbling on the Internet, while cathartic, isn't terribly useful.

Re:Enough of this already

[maxwell demon]

Trademarks should be restricted to what they were invented for: Identifying products.
If I sell a soft drink and claim it's Coke when it isn't, that's bad. This is what trademark infringement was invented against.
But if I make a button saying "I like Coke" or "I hate Coke" or "I didn't have a Coke today", or if I write a book with the title "My first Coke", then this should not be a trademark infringement.

Re:Enough of this already

[deniable]

Just like in SCO v IBM.

Re:Enough of this already

[deniable]

Yes, for Ford Pills. I'm sure they give Ford Motor Company the shits big time.

Re:Enough of this already

[deniable]

Would that be the vacuum cleaners? We used to have the ad on the wall: "It's a VAX, it really sucks."

Re:Enough of this already

[ShakaUVM]

>>Therefore, if anything, the original duration of 14 years should be reduced to maintain the same balance we once had.

While I agree that current copyright terms are too long (and, de facto unlimited due to Disney's lobbying in congress), if you shorten durations too much, there's the risk of companies sitting on a work and then publishing once it drops out of copyright, so that they don't have to pay royalties. Movie companies sit on scripts and completed movies alike, all the time, for various strategic reasons. It wouldn't be much of a stretch to see them doing the same if copyright term became, say, 5 years. ("Thanks, Mr. Tolkien, for your awesome books! We'll be sure to start printing them and making movies in 2016!")

I think 25 years, with a one-time 25 year extension would be more than enough to protect the income of authors while having a healthy public domain (public domain would be 1976 now, instead of 1923).

Re:Enough of this already

[ShakaUVM]

>>Can we please get off this hobby horse? The Tolkien estate isn't "censoring speech," it's protecting its trademarks, which it is required to do by law

Protecting trademarks only applies to *trademark infringements*, not all uses of a trademark.

Your world would very silly if Coca Cola, Inc., had to censor every grocery store ad offering 2-for-1 packs of Coke.

Re:Enough of this already

[MoonBuggy]

That comment was in relation to them silencing the author of the book, not the button guy. My point was that they are genuinely silencing creative work, and the story about the buttons is just an amusingly absurd example of the pattern of behaviour.

Re:Enough of this already

[causality]

So the behaviour that intellectual property enables is frivolous lawsuits? Isn't that more of an issue with the courts in general?

I agree that frivolous lawsuits are a detriment to society. However, that isn't really germane to this incident.

The reason? This matter never went to court. Zazzle is so intimidated by just the possibility of such a lawsuit that they refused to sell the products, even though they would most likely prevail. This law is intimidating them into refusing to do something they should be able to do with impunity. You asked if there is a law enabling such behavior and yes, unfortunately there is.

Re:Enough of this already

[TheoMurpse]

Only if you use the logo in a narrow context and there's a legitimate risk of mark confusion. You'll note how American Pie did not have "Chevy" stricken from its lyrics.

Re:Enough of this already

[TheoMurpse]

You might have gotten at least a pity mod point if you'd spelled "fjord" correctly.

Re:Enough of this already

[Antisyzygy]

Which is why China is going to win. They only pay attention to copyrights as long as we keep buying their products.

Re:Enough of this already

[maxwell demon]

As if the author would see a single cent of the movie revenues anyway.

Re:Enough of this already

[SydShamino]

"While you were driving a Ford, I was driving a Chevy."

How many commercials have you seen that have said something like that? Hundreds? Thousands? This is no different. Attempting to stop it via the power of law is censorship.

Re:Enough of this already

[bunratty]

I would have to agree that copyrights should have a shorter lifetime and the patent office should not be granting patents for obvious inventions. Many people here, though, seem to want to abolish all copyrights and patents, which as you point out, is going from one extreme to the other.

Re:Enough of this already

[Culture20]

What a contrast to the way Hormel handled the use of the word "spam" to describe unsolicited commercial e-mail. "Spam" is a trademark of theirs. They could have gone apeshit and launched a ton of lawsuits over it if they really wanted. Instead they decided to allow this use. They were good sports about it.

Didn't they sue spam.org? Aren't they constantly suing spam blocking software? Whoosh?

Re:Enough of this already

[tinkerghost]

The Tolkien estate isn't "censoring speech," it's protecting its trademarks

There's no basis for a case under trademark. Trademark only protects from actions that attempt to mislead consumers. Pepsi can use Coke products in their add - complete with Coke Logo's - and there's not thing 1 that Coke can do about it. Pepsi doesn't attempt to create confusion or dilute the trademark by comparing their product to Coke.

Likewise, simply referring to the author makes no claim of ownership of the trademark, does not attempt to create confusion as to the nature of the product, nor does it attempt to create a new brand that could be confused with the existing brand.

In short, if they actually filed a case, it won't actually go anywhere and it could leave the trust subject to penalties for frivolous lawsuit.

Re:Enough of this already

[Rakishi]

What the offended buttoneer should have done is to contact a lawyer of appropriate skill and jurisdiction and obtained a reasoned judgment as to their options.

And go bankrupt in the process you mean?

Babbling on the Internet, while cathartic, isn't terribly useful.

Of course it is, public opinion is a very valid method to achieve ones goals. It is much more useful than going bankrupt and is likely to cost the offender much more than a lawsuit.

Furthermore, in a free market system such public displays are vital to prevent abuses since the public cannot act (ie: avoid certain products) if they don't know about them.

Re:Enough of this already

[sumdumass]

HOWEVER, the Tolkien estate is still LEGALLY REQUIRED to sue anyone they know who is using their mark without their permission. If it can be demonstrated that they knew of the button and didn't act, they LOSE the trademark. It's called "genericide" - look it up.

Whoever told you that needs to wear a legal disclaimer around his neck and junk to warn people and discourage reproduction.

They are not legally required to sue. They aren't even technically required to defend the trademark. It's in their interest to do so else it might suffer colloquialism. But defending a trademark does not always mean suing people. Often a license deal can be worked out or a simple warning can cause the issue in conflict to stop. The object to avoid a

Another thing, it's going to be very difficult claiming that a trade mark became a colloquialism when the name is a proper name distinguishing a certain author from other authors already. It's not like anyone else can create a tolkien and market it. It's not like a Xerox or maxi pad or anything.

Re:Enough of this already

[oobayly]

Ah, but could you change you name to Jeremy Reginald Robert Tolkien, and put your new name on your book? Granted, you'd be pretty fucking pathetic to do so, but I can't see the legal issue.

Re:Enough of this already

[ShakaUVM]

They have one very strong incentive not to do that. If a company sits on a work, such as a movie, and publishes it only after the copyright expires, then guess what? It is now perfectly legal to openly and honestly obtain it from BitTorrent. Even the most law-abiding citizen who ever lived would have zero incentive to purchase the work. That's a good example of a company that wants to go bankrupt.

Even though you can download books off Project Gutenberg, bookstores still do a brisk trade in the classics. Now replace that with all new and unknown authors.

And, sure, everyone would be free to make their own LOTR movies if we reduced copyright terms, but considering how much it costs to make a AAA title, it would just mean that the studios wouldn't have to pay royalties for the rights to a work any more. This isn't a good thing.

Re:Enough of this already

[tinkerghost]

HOWEVER, the Tolkien estate is still LEGALLY REQUIRED to sue anyone they know who is using their mark without their permission.

No, they are not. If the use is clearly not violating the trademark, then they are not required to sue over it. This use fails all of the test for trademark violation - suing over it would result in the case being thrown out immediately - most likely along with the trust being required to pay for the defendants legal costs. Under your interpretation, every website discussion and product review would be subject to lawsuits over trademarks.

As much as the RIAA & MPAA would like it to be, IP laws do not grant absolute ownership to the holder of Trademarks, copyrights, or patents.

Re:Enough of this already

[Joe Tie.]

I know laws can be pretty stupid, but I'm sure it cannot be that stupid.

They're not. But the slashdot groupthink got it into its head years ago that it worked like that. It's pointless to argue it with them at this point. You can waste hours, and then bam, you've managed to convince a couple people. The shit drain just clogs up again the next time the issue comes up.

Re:Enough of this already

[ShakaUVM]

Funny, I know several authors with checks in their bank accounts because studios bought an option to make movies based on their books.

And everyone knows about Hollywood accounting - that's why only fools ask for percentages of the movie profits, and ask for points off the receipts instead.

Re:Enough of this already

[cpt kangarooski]

What kind of elves are they? Tolkien elves you say? Certainly fits the criteria of a secondary meaning.

I don't know. I think you may be confusing elves that originate from Tolkien, and elves that are in the same general vein as Tolkien's; Tolkienesque, if you like.

I don't think that the Tolkien estate can lay claim to high fantasy elves, even if Tolkien did create them, as distinguished from fairie-like elves, dwarf-like elves, Santa's elves, etc.

Re:Enough of this already

[cpt kangarooski]

Well, you can't copyright a name, so this is probably a trademark case. The fair use doctrine of copyright would not apply. You may want to look at the (completely unrelated to copyright) fair use and nominative use doctrines of trademark law, however.

Re:Enough of this already

[dotlin]

Yeah, you don't need to be an Albert Einstein to know that trademarking a name in unrelated fields is wrong.

Re:Enough of this already

[j00r0m4nc3r]

it's protecting its trademarks, which it is required to do by law

I would love for you post a citation of the section of the law that says you are required to protect your trademarks. Oh wait, you can't, because it doesn't exist. Nevermind...

Re:Enough of this already

[j00r0m4nc3r]

The real question is, can a Scandinavian car maker sell a car called a Fjord?

Re:Enough of this already

[stenWolf]

If the person published a book and claimed to be Tolkien then the concerns of the Tolkien Estate would be valid. But that is not what is happening here, instead they are simply talking about the historical figure Tolkien which is perfectly legal and there's nothing (legal) that the Tolkien Estate can do about it.

Not exactly. In theory I can legally change my name to Tolkien, then publish a book under my new name. I have absolutely no legal requirement to go out of my way to disillusion anyone who might think they are buying an "original Tolkien". Trademarking a person's name is bullshit legality under most circumstances - it implies a name can be made unique and inaccessible to anyone else but the original person, courtesy of the law.

Re:Enough of this already

[sg_oneill]

Theres a sliver of truth, and a big bunch of bullshit.

To hold onto a trademark, you do actually have to enforce it, or at least continue to make it clear that its yours.

That doesn't mean suing however! It can also mean granting of rights. For instance when you say "Hey fan site, I think its cool what you are doing and you can use the name "tolkien". ", and you've still enforced your IP.

Furthermore, its blantantly clear here that just mentioning a trademark doesnt infringe on it.Your actually allowed to talk about other products or make slogans about them , because thats not making a claim to be selling endorsed shit or whatever.

It the T-Shirt said "Tolkiens Lord of the Rings", then yes it probably would be an infringement". If it said "FUCK tolkiens lord of the rings", it would not be, because its bloody obvious its not an endorsed product.

Think about what would happen if just mentioning a trademark could get you sued. Protestors , for instance complaining about BPs deep water platform spill could not be directly criticized as "Down with an oil company with a platform!" would be mystifying compared to "Down with BP's deep water oil platform!" expresses a very easy to understand message. Could you imagine a competent first ammendment judge agreeing to ban mentioning companies in a negative light?

Reviewers couldn't do negative reviews.

Companies couldn't make comparitive claims about their competition.

And so on...

No you can definately use someones trademark in a reasonable speech sort of manner, as long as your not misrepresentiting yourself as using it to commercially endorse your shit or pretending your shit is their shit.

Re:Enough of this already

[russotto]

They are not. The guy can go get his buttons printed anywhere he wants.

And each place he goes to, the Tolkien Estate will be right behind him sending cease and desists. And since fighting the Tolkien Estate Lawyers costs more than telling such a small customer to go away, they'll all tell him to go away. Which makes it pretty disingenuous to claim they aren't going after him, just after Zazzle.

That's the whole thing about trademark law is enforced: You have to demonstrate that you're vigorously protecting your trademarks.

Only against _actual_ offenses, not imaginary ones.

Re:Enough of this already

[cpt kangarooski]

Copyright was intended to be a balance, an equal exchange.

No it wasn't. Copyright is intended to benefit the public. It's not supposed to be balanced or equal. It should produce the greatest possible net public benefit. If authors also happen to benefit, then I guess that's nice, but it's not important.

The original duration of copyright was 14 years. This was during the late 18th century.

14 years plus potentially another 14 year renewal term. And that was the early 18th century into the 19th.

Therefore, if anything, the original duration of 14 years should be reduced to maintain the same balance we once had.

Don't become enamored with a 14+14 term length just because it's historical. The number and length of terms should be determined by what best serves the public interest. Could be shorter, could be longer.

Instead copyright has been extended and in some cases it can be as long as the author's lifetime plus 120 years.

IIRC, in the US (your link was to a page about terms in the US) in most cases it's life+70, or 95 from first publication, or 120 from creation, depending on certain facts about the work.

Perhaps we need a "loser pays" system specifically for intellectual property laws.

In some circumstances, it is possible to get attorneys fees awarded. But generally I'd be wary of this; copyright, patent, and trademark laws are all heavily weighted in favor of the rightsholder. A strong loser-pays rule would probably only strengthen the rightsholders and cause there to be more lawsuits.

Re:Enough of this already

[k8to]

Frivilous lawsuits are germane. This one would have been. The trademark use is non-infringing.

The only law which "enables" this behavior is the general structure of civil lawsuits which allow anyone to sue for anything, and the reality that this is costly for all parties.

Re:Enough of this already

[cpt kangarooski]

It's supposedly time limited now. I don't see how making it inalienable would accomplish anything, though.

Re:Enough of this already

[orkysoft]

What about iTunes? That's basically Apple Computer selling music, Apple Records's market segment.

(Yes, I know, they have an agreement in place.)

Re:Enough of this already

[bunratty]

Sir Alec Guinness asked for a two percent cut of the box office gross for Star Wars. He died a very wealthy man. Anyone who works in Hollywood should know enough to either ask for a cut of the profits (if they think they have a hit) or a flat fee (if they think they have a flop).

Re:Enough of this already

[cpt kangarooski]

and for some reason the USPTO thinks he's 'alive' (perhaps that word doesn't mean what I think it means).

It means the trademark is live, which means that it is the subject of a pending or current registration with the PTO. Dead marks have had their registrations or applications abandoned, expired, or canceled (which doesn't mean that the user of the mark lacks rights in it, just that it's not actively registered as a federal mark).

Re:Enough of this already

[mug funky]

why did Gainax not try a takedown?

they need the cash more than JRR's freeloading family do.

Re:Enough of this already

[mug funky]

modpoints = mad with power

Re:Enough of this already

[fishbowl]

>He wasn't sued

Precisely. Action was taken against him without a court ordered mandate to take such action.

Re:Enough of this already

[fishbowl]

It is a severe misunderstanding of the problem of trademark dilution to say that companies are *required to sue* anyone and everyone who uses their trademark. The actual situation is nowhere near that simple.

Re:Enough of this already

[PopeRatzo]

nobody here dislikes tolkien or his estate

Hold on, now.

I actually believe the estate should think about restricting use of the word "overrated" too while they're at it. Or maybe the phrase "overrated cult author".

But maybe C.S. Lewis' estate beat them to it.

Re:Enough of this already

[fishbowl]

"Requiring you to sue" would amount to a tax on trademarks.

Re:Enough of this already

[Artifakt]

It's a chilling effect. If you choose not to accept an article, you haven't created a chilling effect, but if you call all the other editors you know and say "This guy's so bad, I wouldn't waste time reading this manuscript, or anything else he ever sends you.", that's different. If you don't like how the author is disrespectful of your favorite politician, but claim without any evidence he's obviously a communist stooge, again, that's a chilling effect. Legally, chilling effects on financial transactions count as a form of harm, meaning if someone sues you for libel or slander, they have standing. (They won't necessarily win a case, of course, but they've proved there are damages worth suing over merely by establishing such an effect exists, and no longer have to show specific damages for a lawsuit to proceed).
          Until an entity such as the Tolkien estate is reluctant to take such steps without much more cause than they have here, if only because the risk of a creating a successful countersuit is real if they make a few such legal missteps, the law is broken.

Re:Enough of this already

[fishbowl]

>No, they are not. If the use is clearly not violating the trademark, then they are not required to sue over it

Perhaps just as importantly, if the use is not a violation and they do actually sue, and the defendant actually presents the least amount of defense (e.g., by showing up at the hearing), this kind of action could end badly for the plaintiff. But the idea has become an accepted truism that merely being named as a defendant in a lawsuit will in every case be a bankrupting, life destroying event, that people have become willing to give up their rights and shut down their business at the first hint that a lawyer might write them an angry letter. You should at least wait until they are willing to write that letter to a judge.

Re:Enough of this already

[BillX]

http://en.wikipedia.org/wiki/Nominative_use

Re:Enough of this already

[ilo.v]

Anyone who works in Hollywood should know enough to either ask for a cut of the profits (if they think they have a hit) or a flat fee ...

Don't EVER ask for a cut of the "profits." The studios always manage to jigger the ledger to make it look like a hit movie made little to no "profit." You need to ask for a cut of the box office GROSS not profit. Note that this is exactly what worked for Alec Guinness.

Re:Enough of this already

[BillX]

Well, to me, this button is in no way an effective criticism of Tolkien, but is instead a blatant attempt to trade on the value of Tolkien's name (and that of Evangelion) in order to achieve market value.

In the same way that Consumer Reports trades on the value of the products it reviews? If those products didn't exist and were never marketed, nobody would buy Consumer Reports.

Re:Enough of this already

[BillX]

There is another option: for the button maker to call their bluff and sue for declaratory judgment that the use is non-infringing. Unfortunately, since I assume this is but one of many buttons they are selling, and probably not huge quantities at that, even the plane ticket to whatever venue this was litigated in would exceed the revenue from this specific button. It would be purely a moral victory, if that.

Re:Enough of this already

[dryeo]

They sued a couple of companies who had trademarks which included the word spam. They don't mind you using the term spam but ask not to use SPAM.
http://en.wikipedia.org/wiki/Spam_(electronic)#Trademark_issues

Re:Enough of this already

[Alex Belits]

When Martha Stewart will die, it will (at least theoretically) allow her company to treat her name as a fictional mascot, appoint anoter "Martha Stewart" or pretend that some things the company markets were endorsed by the original Martha Stewart. What is obviously worth nothing, as Martha Stewart is merely a celebrity, but vanity has no limits.

I am sure, Tolkien's estate is not going to issue books "by Tolkien" that aren't actually written by him, so they have no legitimate reason for having a trademark.

Re:Enough of this already

[cpt kangarooski]

As it stands now, a copyright cannot be lost through the failure to defend it; at most the copyright would only be rendered slightly less effective, and then only as to the person who was infringing.

I think that you're misunderstanding what a copyright is, how it works, and how it differs from other, unrelated things such as trademarks.

Briefly: A copyright is a right to prohibit other people from doing certain things with regard to a work; it is not a right to do those things oneself. (E.g. holding the copyright to a libelous book lets you stop other people from publishing it so that they cannot compete against you, but you effectively cannot publish it either.)

If someone infringes on the copyright, it means that they are doing those things which you have prohibited. Allowing them to do so basically just means that they get a pass. It doesn't invalidate the copyright as to the rest of the world. (Some have floated the idea of adverse possession as a solution to the orphan works problem, but we're not there yet)

Prohibiting the author from assigning his copyright to someone else has nothing to do with this at all.

In trademarks, a field completely unrelated to copyrights, a trademark can be lost under circumstances which involve allowing infringers to have their way with the mark. But the actual reason is that trademarks are only viable when, in the minds of the relevant customers, they serve to identify goods or services bearing the mark as originating from a particular common source.

For example, all computers labeled MACBOOK come from Apple, Inc. But computers labeled LAPTOP could come from anywhere. If a third party uses a mark in such a way as to confuse customers into not knowing whether the marked goods come from one source or the other, then the mark is no longer viable; that's why it is lost. It's the same thing if people start treating the mark in a generic sense, not caring whether it indicates a particular origin or not. ELEVATOR was a mark for a particular company's vertical conveyance device; because the public associated the mark with the device itself, as opposed to devices from that particular company, the mark was lost. (Marks like XEROX and KLEENEX have been hovering on the brink of this for years)

In extreme cases, and under the right circumstances, a mark could even be usurped, where instead of not knowing which source marked goods come from, the customers start to associate the mark with the infringer alone. But this is fairly rare.

Still, there's no obligation to defend a trademark except when needed to avoid consumer confusion, and then, it's not even so much an obligation as it is a desire to protect a mark; the trademark holder is allowed to give up. Not every little thing needs to be the subject of cease and desist letters or lawsuits in order for a trademark holder to protect himself.

Re:Enough of this already

[lonecrow]

OK I get it now!!

1) Trademark my name
2) Cite direct mail advertisers for infringement
3) Profit!

Re:Enough of this already

[russotto]

What the offended buttoneer should have done is to contact a lawyer of appropriate skill and jurisdiction and obtained a reasoned judgment as to their options. Babbling on the Internet, while cathartic, isn't terribly useful.

Nor is contacting a lawyer. Because the answer would be along the lines of "You're in the right, but it'll cost you more to prove it than you're likely willing to pay, and the outcome is never guaranteed". The legal system is simply broken, as it is not a practical way of such disputes. The Tolkien estate, with money to burn, depends on it; they can make Zazzle (and anyone else) stop making the buttons simply by threatening to bring them into the legal system, not by actually having a case.

Re:Enough of this already

[WaffleMonster]

Can we please get off this hobby horse? The Tolkien estate isn't "censoring speech," it's protecting its trademarks, which it is required to do by law. If this guy had made a bunch of buttons for himself and as many of his friends as wanted them (all three), nothing would have happened.

So any geek shirt mentioning Micro$oft or referencing unix or apple without permission from the trademark owners is violating trademark law?

Fair use applies to trademarks too.

Re:Enough of this already

[grcumb]

While you were posting this, I was drinking a Tim Horton's coffee.

Well in that case you've been punished enough.

Re:Enough of this already

[sjames]

You "violated" the trademark in exactly the same way three times in your post.

Do not spread FUD, nobody is EVER required to send nastygrams to protect a trademark. They are also free to see that it is a non-infringing use or even offer to license it's limited use for a penny in the cases where it might be technically infringing but harmless. The only purpose of trademark is to prevent confusion in the marketplace. I cannot imagine a reasonable person being confused by the buttons and buying one because they believed it to be a product of the Tolkien estate.

As hassles go in the IP world, this was a minor one, but it is hassling. It's more insulting than anything else but it does have a whiff of petty bullying about it..

Re:Enough of this already

[Darinbob]

I remember when there was a Discworld MUD and they were asked to change the name and some of the content. Terry Pratchett at the time said that he liked the idea of the place and had nothing against them, but was advised by his lawyers to not allow it.

Re:Enough of this already

[Darinbob]

Trademark applies to stuff that could be confusing to a consumer. Ie, someone named Bob Ford could not sell their own automobile and call it Ford. And he'd have a problem having any sort of major appliance named Ford. But he could have Ford's Hardware or Ford's Shoes.

So the question is whether this use of "Tolkien" was close enough to infringing on trademark or not. Most likely it's just an autonomous reaction by lawyers, and it probably wouldn't hold up in court. Assuming someone has the money to take it to court.

Re:Enough of this already

[Mr. Slippery]

it's protecting its trademarks, which it is required to do by law.

There is no legitimate trademark issue here, any more than there is in someone mentioning Tolkien in a book.

Instead he set up a store on Zazzle and tried to sell them. Zazzle has a clear policy that it will not sell items that violate copyrights, trademarks, or other intellectual property. These buttons do that.

No, they don't. They are not derivative works of any Tolkein novels or stories, so there's no legitimate copyright issue. There is no attempt to misrepresent goods, or possibility of consumer confusion, so there is no legitimate trademark issue here.

Re:Enough of this already

[Mr. Slippery]

Intellectual property gave you this internet upon which you call for its demise.

Que? In what way did "intellectual property" give us the internet? Trademark law certainly didn't. Patents have been a obstruction to the net, something that people have had to work around. The TCP/IP protocols are not restricted by copyright.

Re:Enough of this already

[JabberWokky]

Wait... WHAT?

You're really saying that you can't write about people without getting their permission? Really? No historical figures can be written about without their prior approval in any newspaper or book for sale? You can't open a New York Times article with "I was considering the relevance and legacy of Hugh Hefner" without violating his right to his name? A person can't sell "Glenn Beck Sucks" buttons (or "Nobama" buttons)?

Writing about a public (or private) figure does not require their approval, commercial or not. From a novel to a film documentary to a button or bumpersticker, you can reference people all you want. He didn't stick an image of a Balrog, Ent or other creation of Tolkien on there. He referred to Tolkien as an author. Which he is. I have no idea how you're interpreting this as "protecting trademarks".

Re:Enough of this already

[arose]

The clock would start ticking at the time of publication, not creation.

Re:Enough of this already

[xophos]

But you made no argument, as to why that "extreme" eg. not granting monopolies in a (supposedly) free market is a bad thing.

Re:Enough of this already

[xophos]

EXACTLY!

Re:Enough of this already

[gl4ss]

yeah.. so which one he can't mention in his buttons, tolkien or evangelion? or gaddafi?

that's the thing, it's a sentence that could have cut off from a normal conversation, it could be a line in a book about the real world that the tolkien estate couldn't refute as a tale of real circumstances.

so this hobby horse won't die before the estate comes up with a new livelihood, which they should have, so they wouldn't be so trapped to act like damn fools.

Re:Enough of this already

[metacell]

It's a very limited form of censorship since it only affects commercial use, but it still looks like an abuse of the trademark system to me.

The purpose of trademarks is to make it easier for consumers to recognise products of a certain brand. If a competing product has a similar name or look, it may confuse the customers, and it's believed that the market works better if consumers can clearly distinguish brands.

The purpose of trademarks is not to grant companies or persons the exclusive right to use certain words, symbols or phrases - that's only a means to the end. Trademarking a word, phrase or symbol does not entitle the trademark holder to income from commercial use of them. It's not like copyright or patents.

Which leads to the question, in what way does a button using the word "Tolkien" confuse consumers? Nobody is likely to believe the text on the button was written by Tolkien - it only has the word "Tolkien" in it because it is a comment on Tolkien. Saying it's trademark infringement is like saying a biography over Walt Disney is infringing because it has the word "Disney" in the title.

Re:Enough of this already

[gl4ss]

you can make a paintinf of paul newman pouring salad dressing on salad and write on it paul newman apparently liked salad dressing - then you could sell that painting and nothing he could do would rob you of your profits.

I wouldn't be surprised if Tolkien estate already tried to control who gets to even mention tolkien on their lists of influential writers.

Re:Enough of this already

[shutdown -p now]

This is the Tolkien Estate. They are the guys who trademarked names of practically all major characters and places in the books (yes, "Shire" is a trademark - how the hell this is even granted is beyond my comprehension), and who will threaten to sue if they ever find out that you used it in practically any context that is either 1) commercial, or 2) even remotely linked to the original works (i.e. god forbid you write fanfic).

Re:Enough of this already

[pipatron]

How did intellectual property give us the internet?

Re:Enough of this already

[shutdown -p now]

... oh, and while we're at it - the Tolkien Estate also claims ownership over the fictional languages created by JRRT - so Quenya, Sindarin, Khuzdul, Adunaic etc. They claim it's copyright, though how you copyright a language is beyond my understanding. Anyway, if you try to use some word from any of said languages in a company or product name or advertising - even if it's something innocuous like a word for "river" or whatever - they sue. Also, if you e.g. distribute any materials about the language for commercial gain (say, sell a dictionary or a language primer), they also claim infringement. They have "given permission" to publish language research and study materials so long as it's non-commercial, as an exception.

Re:Enough of this already

[pipatron]

How can copyright be lost, if not due to time?

Re:Enough of this already

[GooberToo]

There's a reason why no one has every such such counter arguments. Such arguments don't exist.

Hell, most people are too stupid to realize that the entire point of the GPL was to allow developers to earn a living through associated services while empowering everyone with quality software - but people bitch about that too. For what ever reason, many dopes here believe everyone who creates must be piss poor and live in a gutter and must never and I mean absolutely never, benefit from their hard work. Its hypocrisy and its disgusting.

Re:Enough of this already

[metacell]

Trademarks do not grant the right to profits made from the trademark. For example, if I draw a satirical cartoon of someone famous, they are not entitled to part of the profit when I sell the cartoon, just because I make use of their likeness. If I write a biography over someone, and it sells well just because the person is well-known, it doesn't entitle them to a percentage of the sales, even if I use their name in the title.

Trademark protection exists in order to make it easier for consumers to distinguish competing brands. It doesn't exist to protect a company's investment into marketing. Why would society bear the cost for that? If a company makes investments that are not profitable, it's their responsibility to make better investments.

Re:Enough of this already

[TheVelvetFlamebait]

I disagree on both counts. The fact that Zazzle was intimidated out of court is definitely an issue with the courts. If frivolous lawsuits were impossible, then the threats would mean nothing. To quote a great and wise man:

You see, that's the cause of this effect. You didn't realize that on your own because you're looking at the surface only. You need to look about 1mm beneath the surface to appreciate why this is happening.

I also disagree that the law is enabling such behaviour. The intention of the law is certainly not to allow people to threatened into not using a given name. The law does not sanction this behaviour. Like all such loopholes, I attribute the problem to the courts, specifically for not setting precedent, or setting the right precedent. To draw an analogy, I think that blaming intellectual property laws for such abuse is like blaming murder laws for people who frame others of murder, or blaming the frivolous lawsuits from people slipping on puddles, on the general principle that people are responsible for the property they open to the public. Intellectual property law does not allow such abuse, but people do abuse it, just like so many other laws.

Re:Enough of this already

[TheVelvetFlamebait]

That's one solution, but I feel that its power to prevent lawsuits is derived from the disempowering of artists to defend themselves. If artists could maintain the power to chase down as many alleged pirates as the companies, that is, if they still had the power to defend themselves, would such measures still be effective?

Re:Enough of this already

[Jafafa Hots]

I have studied the law, and I personally have examined over 250,000 trademark applications. But other than that I guess I dunno shit.

I was talking about what the law, when drafted, intended. You're talking about the current state of belief of those benefiting from use of the law and abuse of the law. It's not surprising that someone "working in the industry" would view the distortions as the way things are supposed to be, a lot like how copyright has been distorted out of all meaning, and patents to a somewhat lesser degree.

Re:Enough of this already

[metacell]

*sigh*

The Internet was funded by governments and universities, not commercial companies, and the technology which enables it has always been free (as in speech).

Re:Enough of this already

[Mhtsos]

They should just have someone change his name to Tolkien, write a book about comparing various kinds of wood and ask HIS permission.

Re:Enough of this already

[GooberToo]

No it wasn't. Copyright is intended to benefit the public.

Where in the hell did you come to that flatly wrong conclusion? If copyright were only about benefit to the public, there wouldn't be copyright at all. Period. Copyright is there to allow for benefit of its creator, first and foremost. In exchange for societal contributions the works may provide, society then benefits later. Its ONLY because of direct benefit of its creator that society has a hope of benefiting. If you dissolve the benefit to its creators, by extension, you destroy the benefit to society; by lack of creation. You can't have one without the other. Therefore, by definition, it absolutely is a balancing act. Which is to say, its a balance between directly benefiting the creator in the near term for a benefit to society in the long term. As you rightly point out, exactly at what point a "balance" is deemed reasonable can be debated but nonetheless, a balancing act it is.

14 years plus potentially another 14 year renewal term. And that was the early 18th century into the 19th.

And that's why printing capacity was extremely limited and creators frequently still had benefactors. Since both of those have dramatically changed, the only way to still have a functioning system is to dramatically increase the protections afforded by copyright. Otherwise, the economics of creation simply become impossible to sustain. People demand cheap creations. That's all but impossible without extended copyright terms such that it allows for time to reap the benefits.

Furthermore, the exploitive forces in the market have repeatedly proven they are more than willing to wait out copyright terms so as to prevent paying its creators. With this in mind, terms on the basis of life + something, with a minimum of fifty seems extremely reasonable.

Re:Enough of this already

[metacell]

No, I don't think you do understand. Are you willing to pay $100 per book, or more, for what currently costs $5? Didn't think so. Its likely that what you're bitching about is what allowed his works to be printed in the first place. Basically you're ignorantly arguing that his works should have never been published.

Tolkien wrote his books partly as a distraction from the war, and partly as a distraction from his work as a language professor. Did the possibility that his books would become a world-wide success and enable his inheritors to collect a steady rent over several decades, really motivate him to write more or better?

Extremely unlikely that statement is true. If you hold a patent, you are required to defend it else you lose the patent.

That's only true for trademarks. And it's unlikely the Tolkien trademark would be threatened by a button which refers to him.

I have a friend who is an author of several books. He'll be lucky to clear $30,000 over the next TWENTY YEARS on a book which took him over a year to write. Get it through your heads, authors, like almost all who depend on copyright, accept much, much lowers fees up front so as to allow them to hopefully make something on the back end, which in turn allows for an accessible price point for the masses.

Books rarely make any money beyond the initial printing. If your friend accepts a lower up-front payment in the hopes of earning it back later, there's a possibility he's being scammed.

For the vast majority of books, copyright doesn't need to last longer than it takes to print the book, because there's never a second printing. If copyright was reduced to, say, three years, most authors wouldn't be affected at all.

Re:Enough of this already

[PCM2]

It's a chilling effect... if you call all the other editors you know and say "This guy's so bad, I wouldn't waste time reading this manuscript, or anything else he ever sends you."

But you agree that this hasn't happened in this case, right?

Re:Enough of this already

[PCM2]

And each place he goes to, the Tolkien Estate will be right behind him sending cease and desists.

Prove that. My kitchen is pretty far from the Internet. "Where'd you get that button" is a long way from "your manufacturing company is not permitted to produce products that trade on the Tolkien name and intellectual property."

Re:Enough of this already

[mabinogi]

You haven't got a clue what you're talking about.

If you try to sue someone over a trademark that you haven't shown yourself to be defending, and that you have allowed to become common usage, you will probably lose.
Therefore there is an incentive to be seen to protect your trademark. But that's as far as it goes.
As others have said, being seen to protect your trademark definitely does not include frivolous lawsuits that you have no chance in hell of ever winning. That just makes you look like a dick, and may even hurt future legitimate attempts at defending the mark.

Re:Enough of this already

[MindCrusher]

You assume a single publishing house/movie studio. However the free market will always punish such behavior. The first one to publish (to agree on commercial rights with the author) will be the one making money.

Re:Enough of this already

[metacell]

Actually, I'm against copyright because I believe it's unnecessary; on the whole, it doesn't make much difference for the incomes of creators. In fact, music artists have on the average seen their revenues increase since filesharing took off ten years ago, since more musicians now bypass the record companies and offer their music for free on the Internet. Since only roughly 10% of the sales price of a CD goes to the artist, it's possible to earn more money by offering the music for free and getting your fans to buy merchandise and go to concerts instead.

Re:Enough of this already

[metacell]

He could have solved the problem by licensing the right to use the name and content for a symbolic fee. He actually did something similar when a British school forgot to ask permission to base a play on one of his books - Pratchett asked for a ticket to the play and promised to waive the fee if he liked it (which he did).

Re:Enough of this already

[TheTurtlesMoves]

No, the G. Lucas estate has already taken all possible forms of overrated.

Re:Enough of this already

[TheTurtlesMoves]

There is a difference between "asked to change the name" and a cease and desist. It is like the difference between asking nicely and being a rude bastard.

Re:Enough of this already

[Jeff DeMaagd]

A historical figure is not, and cannot be, anyone's property. End of story.

Don't you mean should not be? Besides, it's not the person but the name. If his name really is a trademark, then you'd be wrong. But if it's your opinion that a person's name should not be trademarkable, then that's an opinion, and one that you're definitely entitled to have. It looks like the reality is that names can be trademarked. Also, it does look like these individuals are trading on the trademark because the name is used as part of the selling point of the product.

Re:Enough of this already

[SudoGhost]

Sorry, I wasn't clear on my meaning. If you were to say "Tolkien elves', that would identify a 'type' of elf saparate from 'North Pole elves', etc., being immortal beings leaving on boats as opposed to little pointy eared beings who make toys. The usage of Tolkien in that phrase has a meaning secondary to that of J.R.R. Tolkien, and thus is legally able to be trademarked. I wasn't trying to suggest that the Tolkien estate has rights to the concept of elves by any means.

Re:Enough of this already

[SudoGhost]

I didn't realize that the movies were made during his lifetime. Besides, you being sure of something is not a legal reason for invalidating a trademark.

Re:Enough of this already

[metacell]

Sounds like they're trying to copyright ideas, which isn't, and shouldn't be, possible.

Re:Enough of this already

[GameboyRMH]

Then why aren't the makers of the "Ford repair kit" stickers getting their asses sued off?

Re:Enough of this already

[metacell]

The guy is just making buttons with a statement *about* Tolkien's books. It's not like he's trying to pass it off as a genuine Tolkien quote, much less an actual Tolkien book.

If that was illegal, shouldn't it also be illegal to write unauthorised biographies (capitalising on the fame of other people), reviews (capitalising on other people's works of fiction), or news reports (capitalising on events one did not create)?

Re:Enough of this already

[Half-pint HAL]

I agree that copyright terms are now too long, but...

Now then. The original duration of copyright was 14 years. This was during the late 18th century. At that time, the physical printing press was the most advanced way to distribute a written work. Here we are in the Information Age. In fourteen years' time an author can reach a much larger audience at significantly less cost than what anyone in the 18th century would have dreamed possible. Therefore, if anything, the original duration of 14 years should be reduced to maintain the same balance we once had.

But if durations had historically dropped to "maintain the balance", you would most likely now be complaining that copyright works haven't dropped in price since the 18th century, because any drop in the protection term would mean a reduction in economy-of-scale for the copyright owner. A book in the 18th century was a lot more expensive in real terms than a modern paperback.

Re:Enough of this already

[Half-pint HAL]

Since only roughly 10% of the sales price of a CD goes to the artist, it's possible to earn more money by offering the music for free and getting your fans to buy merchandise and go to concerts instead.

[citation needed]

You may be interested to know that most musicians I know are still selling CDs. In fact, most musicians I know still say that direct sales of their CDs at concerts is the main source of income (they get over 50% from direct sales). People in general only wear branded clothing from a few big acts, and I'm guessing you're probably a metalhead, because it really isn't that normal in other genres. The only music branded clothing I have is a cap I bought when I'd forgotten my sun-hat on holiday

Music is a musician's business, and taking away the ability to profit from music takes away their ability to profit.

HAL.

Re:Enough of this already

[girlintraining]

It's a fictional historical figure. Also, people in prison are the property of other people. It might not be politically popular to say so, but owning others (literally, figuratively, emotionally, etc.) has been present at every point in human history.

Re:Enough of this already

[Alex Belits]

Titles or work and characters are usually trademarked, and adaptations are derived works, so both trademarks and copyright still require movie authors to get permission.

Re:Enough of this already

[cpt kangarooski]

No it wasn't. Copyright is intended to benefit the public.

Where in the hell did you come to that flatly wrong conclusion?

An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.

The full title of the Statute of Anne, the world's first modern copyright law

To promote the progress of science ... by securing for limited times to authors ... the exclusive right to their ... writings....

The US Constitution

Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.

Thomas Jefferson (admittedly, talking about patents, but many have applied his argument to copyrights as well)

Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.

The Supreme Court in Sony v. Universal

The Supreme Court has recognized that "the monopoly created by copyright thus rewards the individual author in order to benefit the public."

The 11th Circuit Court of Appeals, quoting the Supreme Court, in SunTrust v. Houghton Mifflin

I could go on, if you like.

Plus it just makes sense: Copyright is a restriction on freedom of speech, and important and inherent right. Why would the public be willing to accept such a limitation, unless it provided a benefit to them greater than the cost?

If copyright were only about benefit to the public, there wouldn't be copyright at all. Period.

No. The public benefits when works are created, published, and in the public domain. Without copyright, we know from history that some, but perhaps not very many, works would be created and published, and instantly be in the public domain.

The idea behind copyright is that by tolerating some delayed gratification, we can encourage authors to create and publish works which they would not have done otherwise, and then after a time get them into the public domain. If it's done right, the benefit from the additional creation and publication will outweigh the detriment of not having them in the public domain immediately (though of course, they must ultimately enter). Ideally, the system will maximize the public benefit by encouraging the most amount of creation and publication for the least amount of copyright; it's basically a matter of finding the sweet spot before diminishing returns set in.

If you dissolve the benefit to its creators, by extension, you destroy the benefit to society; by lack of creation. You can't have one without the other.

No. History proves that there will still be some creation and publication even if there is no copyright. This becomes our baseline: copyright is only worthwhile if it causes a public benefit, measured in terms of works created, published, and in the public domain, greater than if there were no copyright at all. If we could not devise some sort of copyright that produced a greater public benefit than this baseline, we'd literally be better off not having copyright.

Whether we grant copyrights, and if so, how beneficial to authors they are, they have to be measured in terms of the net public benefit alone. Whether or not the authors like the deal they're offered is irrelevant, save for how it benefits the public. I've never minded if authors incidentally happen

Re:Enough of this already

[cpt kangarooski]

The usage of Tolkien in that phrase has a meaning secondary to that of J.R.R. Tolkien, and thus is legally able to be trademarked.

Yes, but only in the context of a general sort of fictional elf, which isn't itself a good or service, I think. I don't believe that it's enough to show that there is some secondary meaning somewhere, to someone; it has to pertain to the goods or services at issue, surely.

Re:Enough of this already

[gambino21]

It's not like anyone else can create a tolkien and market it.

Christopher Tolkien could.

Re:Enough of this already

[Archangel Michael]

Martha Stewart trademarked "Martha Stewart", not "Martha" or "Stewart". Trademarking a name is easy, if your name is used in trade. And as many /.ers know, trademarks are limited to industries, thus Microsoft cannot sue Pella for use of "Windows" (or visa versa).

Further, Tolkien Estate needs to learn the lesson of the Streisand Effect, of which Streisand has no legal means of stopping the name of, as it is not a name used in trade. If Tolkien Estate isn't careful, to be "Tolkiened" might become a pejorative term .

If I were named Tolkien, I'd go in to jewelry making and make "Tolkien Rings", and enjoy the free publicity.

Re:Enough of this already

[petermgreen]

The problem is that there are lawsuits where both parties know that the plaintif is likely to lose if it went all the way to trial but the costs of defending and/or the risk that the judge will make an unexpected descision are greater than the costs of losing a customer.

This is made worse by the fact that afaict trademark law punishes underdefending your trademark but not overdefending it so the rational thing for a trademark holder to do is to defend as harshly as possible.

Re:Enough of this already

[arbarbonif]

How about the millions of people in the American South, who use Coke to refer to any carbonated beverage no matter the type. "I'd like a Coke", "What kind?", "Orange"...

Or the guys who produced a language map of the US, showing where people use the word "Coke" to refer to any carbonated beverage...

Re:Enough of this already

[anyGould]

I am sure, Tolkien's estate is not going to issue books "by Tolkien" that aren't actually written by him, so they have no legitimate reason for having a trademark.

I wouldn't be so sure of that. Couple "close enough" examples I can think of off the cuff are:

Tom Clancy's Op-Center: actually written by Steve Pieczenik and Jeff Rovin. If Tom kicked off tomorrow, Steve and Jeff can happily keep writing "Tom Clancy" novels.

Babysitter's Club: Ann Martin wrote the first 35 books (and then the remaining billion and twelve were ghostwritten).

That's the danger of name-as-brand, in my mind - it lets the corporation farm our your reputation years after you're gone.

Re:Enough of this already

[anyGould]

Movie companies sit on scripts and completed movies alike, all the time, for various strategic reasons. It wouldn't be much of a stretch to see them doing the same if copyright term became, say, 5 years. ("Thanks, Mr. Tolkien, for your awesome books! We'll be sure to start printing them and making movies in 2016!")

The flip side is that the movie studios pay for those "options", so the author is making money while it sits and spins. (IIRC, some authors can actually make a decent living just on options.) According to wikipedia, an option usually runs 12-18 months, at which point the author can turn around and resell the option.

What I would expect to see under shorter copyright laws is a higher price on those options (since it's not really feasible to shorten the option time), to account for the shorter "shelf life".

I'm happy for copyright to be a single fixed term. Most of us would be thrilled to get paid for 25 years for one piece of work.

Re:Enough of this already

[anyGould]

Ah, but could you change you name to Jeremy Reginald Robert Tolkien, and put your new name on your book? Granted, you'd be pretty fucking pathetic to do so, but I can't see the legal issue.

I ain't no lawyer, but I suspect that you'd get busted on that - it's fairly obvious that you're intending to horn in on the trademark.

The question I'm more curious about is that if your momma and poppa, Bob and Louise Toklien, decide to name their little bundle o'joy Jimmy Rob Rae Tolkien, and the kid tries to use his name, what happens? I seem to recall some sort of allowance or exception for cases where you are using your real name.

Re:Enough of this already

[anyGould]

Well, Sarah Palin's in the process of trademarking her name, and as a controversial (yet wealthy) politician, it's a hell of a tool to have at hand.

And yes, yes, free speech, political freedom, etc, etc - the only hope I have is that when she starts dropping C&Ds around, someone else is wealthy enough to fund the defense suit. Otherwise you can be completely in the right and yet too poor to win.

Re:Enough of this already

[anyGould]

It's the same shit that happens with video sites. It could be legit, but they'd rather be big pussies and cave.

You're right, but I wouldn't blame Zazzle - they're a business, they're trying to make money. Getting mired in a billion lawsuits will do nothing but stop them from being a business OR making money. I can't argue their position - it's not the hill they want to die on.

Re:Enough of this already

[petermgreen]

Anyone who works in Hollywood should know enough to either ask for a cut of the profits

You mean a cut of the revenue right? profits are too easy to manipulate.

Re:Enough of this already

[mallyn]

Thank you

Re:Enough of this already

[fast turtle]

Buzz!! Wrong

I see nothing in "While you were reading Tolkien, I was watching Evangelion" that suggests endorsement by the Tolkien Estate, check.

and that's where you're wrong. By referencing Tolkien at all, You are indicating that Tolkien was watching Evangelion instead of reading, which puts it into the direct sponship of Evangelion. That's the great thing about the Law. It's open to interpretation in almost any direction so long as you can successfully argue the point and in this case, the website already had a policy in place that they would not fight trademark issues because of the costs associated with those fights.

Re:Enough of this already

[kheldan]

If this sort of thing were an isolated incident, it wouldn't receive any press at all, and there'd be one or two ruffled feathers over it, but no big deal. But the whole copyright/patent situation is one big raw festering sore, and because of that every time something like this happens it's like someone sprinkling salt into the wound. Things need to change.

Re:Enough of this already

[harperska]

But if I make a button saying "I like Coke" or "I hate Coke" or "I didn't have a Coke today", or if I write a book with the title "My first Coke", then this should not be a trademark infringement.

As long as you make it clear that the 'Coke' you are referring to is the beverage made by the Coca Cola Company and not some other beverage that you are calling Coke, while simultaneously making it equally clear that the Coca Cola Company in no way endorses your mentioning of their product.

Re:Enough of this already

[Tetsujin]

When Martha Stewart will die, it will (at least theoretically) allow her company to treat her name as a fictional mascot, appoint another "Martha Stewart" or pretend that some things the company markets were endorsed by the original Martha Stewart

Ah, kind of like how Haman Khan tried to give her Neo-Zeon movement credibility by parading around the last surviving member of the Zabi family...

Re:Enough of this already

[skywire]

Ah, where to begin. First, the requirement of protecting one's trademark does not extend to making an ass of oneself by reaching out far beyond the recognized bounds of trademark law. Second, tossing off "These buttons do that" as though it were a simple noncontroversial fact, when it is actually highly debatable, violates the rules of argument. Third, you have an odd definition of "censor" if you think siccing the state on someone to stop them from merely alluding in a marketed product to a relative's being an author is not censorship.

What this sordid tales demonstrates is how easily human beings will become rent-seekers, given half a chance. Another example is what (some of) the family of Dr. Martin Luther King, Jr. have done. How sad.

Re:Enough of this already

[argmanah]

Buzz!! Wrong

I see nothing in "While you were reading Tolkien, I was watching Evangelion" that suggests endorsement by the Tolkien Estate, check.

and that's where you're wrong. By referencing Tolkien at all, You are indicating that Tolkien was watching Evangelion instead of reading, which puts it into the direct sponship of Evangelion.

Buzz!! Wrong Read the sentence again. Where in the sentence does it suggest that Tolkien was watching Evangelion? The sentence implies that if the person reading the button was reading Tolkien, he should know that the wearer of the button was watching Evangelion instead. In essence, the wearer of the button is suggesting that watching Evangelion is a better use of his time than reading Tolkien. Nothing in the sentence links Tolkien to support or not support Evangelion in any way or form. You fail at basic reading comprehension.

Re:Enough of this already

[tophermeyer]

I think you are claiming the same thing as the parent. Rather than go through a record label to produce an album to sell in a recordstore, artists can freely distribute their stuff to generate interest and sell merchandise (incl. self published CD's) at their shows.

He said CD when I think he really meant label produced CD for mass distribution.

Re:Enough of this already

[Relic of the Future]

Pepsi can make ads that say "4 out of 5 people prefer the taste of Pepsi over Coca-Cola!" even though they're (*gasp*!) making money and the term "Coca-Cola" is trademarked.

Trademark is a consumer-protection law: as long as you don't falsely claim or imply that your product is being produced by, or is affiliated with, or is profiting the owner of the mark, you're on good legal footing. When Pepsi says "We're better than Coke!", it's obvious that they are not claiming that their product is manufactured by Coca-Cola, and no one who buys a Pepsi think that their money is going to the Coca-Cola company.

Similarly, it is obvious that these buttons are not produced by, affiliated with, or profiting, the Tolkien estate, and therefore, the trademark is not being violated, and there is no legal leg for them to stand on, and so Zazzle's terms of service don't compel them to comply with the request. Similarly, you can't get a copyright on something as short and factual as a last name.

Re:Enough of this already

[GooberToo]

Classic ignorance of conflation.

Artists have seen an average increase in revenues because of many factors and trends, none of which have to do with piracy.

Since only roughly 10% of the sales price of a CD goes to the artist, it's possible to earn more money by offering the music for free and getting your fans to buy merchandise and go to concerts instead.

Of course you can - when you have a huge fan base who was willing to fund you up front thusly allowing the luxury of not charging. Then again, unless you're an absolutely idiot, why would anyone want to give up 10%. When you have nothing, 10% can be the difference of surviving or not. When you big, that 10% can be a shit of money - which is, after all, why 10% up front in exchange for lots of hard work, made sense.

Basically you're arguing that artists should not be paid.

If 10% isn't that much to you, then I'm sure I'll be receiving 10% of your pay checks for the rest of your life. After all, its not worth talking about - according you - you hypocrite.

Re:Enough of this already

[scot4875]

if it were allowed to print Tolkien-related products with impunity, could do the Tolkien estate a lot more damage than one guy with some buttons ever could

Yeah -- the estate doesn't want there to be confusion with its exciting line of J.R.R. Tolkien action figures, or to cut in on its lucrative Tolkien-related apparel lines.

--Jeremy

Re:Enough of this already

[sumdumass]

Isn't Christopher Tolkien a Tolkien already? It's not like anyone else can create a Tolkien and market it.

Perhaps I should have said it's not like anyone other then a Tolkien could create a Tolkien and market it.

Re:Enough of this already

[Carnildo]

Trademarks should be restricted to what they were invented for: Identifying products.
If I sell a soft drink and claim it's Coke when it isn't, that's bad. This is what trademark infringement was invented against.
But if I make a button saying "I like Coke" or "I hate Coke" or "I didn't have a Coke today", or if I write a book with the title "My first Coke", then this should not be a trademark infringement.

And you know what? It is not trademark infringement. This story is not about trademark law causing problems, it is about the Tolkein estate greatly over-reaching what what trademark law allows them to do.

Re:Enough of this already

[green1]

Actually that is why it's such a great example. It shows exactly where the line is.

Apple Computers and Apple Records each had their own separate businesses in unrelated market segments, and neither one was infringing the other's trademark. Then when Apple Computers decided to get in to the music business that all changed and they suddenly ran afoul of Apple Records' trademark. There was a court case around this, and the 2 parties have come to an understanding.

Back to the case at hand, as long as the accused in this case stays out of the book publishing business, then they aren't infringing on any trademarks.

Trademark law is not to protect a person or a company, it's to protect the consumer. It's how I know when I buy an Apple iPhone with the logo with the bite out of it that it was actually made by Apple Computers and not some guy in his basement who used parts that will fall apart as soon as I send him the money. It means that I know that when I buy any branded item that it is legitimate. (Of course people do circumvent this all the time, but there's only so much that can be done to stop the illegal activity)

In general, as long as there is no risk of the average consumer mistaking a product that came from the supposed infringer with a genuine product from the trademark holder, no infringement has likely taken place.

Re:Enough of this already

[green1]

This would actually cause a difficult question. By publishing a book as "Tolkien" you would be running afoul of the trademark. However you might have grounds to show that the trademark itself is invalid, or at least can't be used to stop that situation.
That would quite likely be a situation that would make it all the way to a court room.

Re:Enough of this already

[Half-pint HAL]

No, he said that if bands give away music for free, people will pay to see their gigs. He seems blissfully unaware that the most of the money made at gigs comes from the sale of music, not tickets and not T-shirts. The internet has not changed the ability for bands to sell their own CDs. Even bands signed to a major label still get a bigger cut out of direct sales at gigs. This has been the case for decades.

The post I responded to was talking about recordings being 100% free. No copyright, no protection whatsoever. But free music does not make money for bands, which is why it is very rarely "given away" on the internet -- where it's free, it's free for streaming only so that you have to buy it if you want to listen to it without visiting the band's website.

Re:Enough of this already

[metacell]

Well, I'd like to give Tolkien's heirs the benefit of the doubt. Perhaps they're just following their lawyers' advice, and believe they HAVE to sue everyone who uses Tolkien's name in a commercial context or risk losing the trademark.

Re:Enough of this already

[metacell]

I know you're just a troll, but for the benefit of anyone who reads this...

Artists have seen an average increase in revenues because of many factors and trends, none of which have to do with piracy.

Well, I'm not saying artists are better off *because* of pirating - there's not sufficient evidence for that. I'm just saying that if filesharing has a negative effect, it's so small that it's overshadowed by other factors.

Pirating *can* have a positive effect on the income of artists, if the money people save by pirating is spent on goods and services from which the artist receives a larger percentage. There are studies showing that the people who pirate the most music are also those who go to the most concerts and spend the most money on music overall. It seems that people don't pirate to save money, they pirate to get access to a wider assortment of music for the same money.

Of course you can - when you have a huge fan base who was willing to fund you up front thusly allowing the luxury of not charging.

Actually, the small artists are likely to benefit the most from offering their music for free. It allows music to be shared freely between listeners, which works as a form of viral marketing.

The biggest artists can afford traditional marketing (TV commercials, newspaper ads, paying radio stations to play their songs, etc) and are more likely to benefit from copyright.

Today, there are a number of artists who release their music for free and earn enough to get by. They're not getting rich from it - but neither were they before. It has always been the case that most artists earn very little and do it because they enjoy it, not because the money is good.

Then again, unless you're an absolutely idiot, why would anyone want to give up 10%. When you have nothing, 10% can be the difference of surviving or not.

It's not 10% of the artist's income. It's 10% of the sales price of the CD. (Although there's a Norwegian study showing that Norwegian artists on average earn between 10% and 20% of their income from CD sales.)

Re:Enough of this already

[GooberToo]

I know you're just a troll, but for the benefit of anyone who reads this...

No, that statement actually makes YOU a troll. Disagreeing does not make someone a troll. IT simply means you disagree. The fact you believe disagreement makes someone a troll either says you are a troll or ignorant.

I'm just saying that if filesharing has a negative effect, it's so small that it's overshadowed by other factors.

There no evidence to support that conclusion. Inversely, we have hundreds of years of economic theory which almost entirely invalidates that line of thought. Now you can argue new economic theories may be required, and that may be true, but such supportive theories simply not exist today.

Pirating *can* have a positive effect on the income of artists, if the money people save by pirating is spent on goods and services from which the artist receives a larger percentage.

Incorrect logic. In you example, paying x on good y versus z still only makes the artist x. Without piracy, assuming he had the money, he would have paid 2x. Furthermore, by taking y and only paying for z, the artist was harmed by market devaluation of y.

I'm done. Its pretty clear from your other posts you're more interested in parroting ignorance rather than actual facts.

Re:Enough of this already

[metacell]

You just informed the world you have absolutely no idea what the hell you are talking about. This is defacto, how the entire world of literary print functions. Period. Unless you are already a big established name, you either work as described, entirely fund your own printing, or are never printed. Period.

Publishers who ask the writer to pay to get their book published are usually referred to as "vanity presses" in the industry. They often accept any manuscript, no matter how bad, since they make their money from the writer, not the reader. For the same reason, they often do a very bad job - for example, format the book incorrectly, misspell words on the title page, or don't bother to do any marketing.

Self-publishing is when you take on the role as publisher yourself - you submit a more or less finished book to the printer and do editing, marketing and sales yourself. Self-publishing *can* work out if you're prepared to do all the work and are really sure of the quality of the book.

Right. Meaning, you just completely invalidated your own position and validated my own. If most books are largely not profitable, this only means the sole hope of reaping a return is longer copyright and lower payouts up front; forcing everyone to benefit, where possible, in the long term.

I think the hope of reaping a return in the long run is a vain one. If the book doesn't have significant sales in the first three years, it's most likely a failure and will never have significant sales.

The sad truth is that competition on the writing market is very tough, and most writers are destined to fail - as it has always been. You either need to belong to the very most talented writers, do a great job at marketing, or be very lucky to have any success.

Re:Enough of this already

[GooberToo]

Ahhh - thanks for explaining things which were both well known and obvious, and added nothing to the exchange?!

Re:Enough of this already

[metacell]

But all of his statement rests upon Tolkien and Evangelion. If his statement is that important, he should seek to make it more generic instead. That I would support.

While you were reading literature, I was watching Anime...simple, effective, not able to infringe on anybody's IP.

What do you think of scientists and engineers who earn money from using, for example, Newton's equations, without contributing any substantial creative qualities?

What do you think of publishers who earn money from printing the works of Shakespeare or Homeros?

Well, that would be covered under Right of Publicity, but in general the difference is that you are reporting real life events or at least adding your own creative qualities to it, in a more substantial fashion than this button. And really, do you imagine that somebody who wrote articles based on what other people reported would be well-advised to do it without permission? I guarantee that would be a journalism issue.

That's not the case. Journalists base news items on the reports of other journalists all the time. In some (but not all) cases, you can see the journalist has noted the source as another newspaper at the beginning of the article.

Popular science magazines usually do NO original work - they base ALL their reporting on research articles or articles in other popular magazines. Only the most prestigious magazines, like Scientific Ameican, hire researchers to write popular articles on their own research.

Re:Enough of this already

[gambino21]

Yeah, I was just joking. Thinking of Christopher Tolkien creating a child and marketing it.

Re:Enough of this already

[metacell]

The Root:

SLRP: The suggested list retail price of a CD is currently $16.98, while the standard wholesale price -- what retail stores pay the label per CD -- is about $10. Once the retailer gets the CD, they can sell it for however much they'd like -- hence "suggested." Artist's royalties are a percentage of the retail price. Superstars can get 20 percent of the SLRP, but most get 12 percent to 14 percent.

I've seen other estimates which are lower, but this was the only citation I could find for now. Online sales through the record label usually pay a few percent units less.

Half-pint HAL wrote:

You may be interested to know that most musicians I know are still selling CDs. In fact, most musicians I know still say that direct sales of their CDs at concerts is the main source of income (they get over 50% from direct sales).

Perhaps, but a study from the Norwegian School of Management shows that CD sales have never accounted for more than 20% of the income of music artists, on the average. It's based on Norwegian artists, but the figures shouldn't be drastically different for other developed nations.

Half-pint HAL wrote:

Music is a musician's business, and taking away the ability to profit from music takes away their ability to profit.

I'd say that music is a way of life, and getting paid for it is just a way to be able to do it full-time. The supply of artists has always been greater than the demand for them, and most artists have never been able to support themselves from their music.

That being said, artists are able to produce more than twice as many albums today as ten years ago:

Overall production figures for the creative industries appear to be consistent with this view that file sharing has not discouraged artists and publishers. While album sales have generally fallen since 2000, the number of albums being created has exploded. In 2000, 35,516 albums were released. Seven years later, 79,695 albums (including 25,159 digital albums) were published (Nielsen SoundScan, 2008). (Harvard study cited by Michael Geist)

Re:Enough of this already

[metacell]

The post I responded to was talking about recordings being 100% free. No copyright, no protection whatsoever. But free music does not make money for bands, which is why it is very rarely "given away" on the internet -- where it's free, it's free for streaming only so that you have to buy it if you want to listen to it without visiting the band's website.

Decidedly not true. Check out Jamendo, for example, which offers complete albums for free download in MP3 or Ogg format. Some of the bands there are great - I'm partial to Diablo Swing Orchestra myself.

Mutter Mutter

[folderol]

Will you lot stop mumbling. I can't make out what you're tolkien about.

Re:Mutter Mutter

[Quiet_Desperation]

Eh... A tolkien effort at best.

Re:Mutter Mutter

[Shikaku]

What you Tolkien about Willis?

Re:Mutter Mutter

[billstewart]

Been tolkien' on the pipeweed too much?

Re:Mutter Mutter

[TheSpoom]

Shakespeare. ...Wait, what were we doing again?

Re:Mutter Mutter

[grcumb]

Will you lot stop mumbling. I can't make out what you're tolkien about.

Pay no attention to him. He's just Tolkien out his arse.

Tolkien made up Tolkien?

[El_Muerte_TDS]

If the name Tolkien is Tolkien's imaginary property, that would mean that Tolkien made up the name. Wikipedia's page on Tolkien claims that JRR didn't made up the name.
So, Tolkien Estate is trying to "steal" imaginary property? Isn't that illegal?

Re:Tolkien made up Tolkien?

[hedwards]

Depends, there are some protections from individuals trading on somebody else's fame, but I'm not really sure that it applies in this case. The name is used as a minor character in historical fiction. I'm not sure how this would be any different than say: Young Einstein

If tolkien was still alive...

[Anonymous Coward]

He would slap the hell out of his entire family for pulling this kind of crap.

Way to honor the memory of your author ancestor.. By being a douchebag.

Re:If tolkien was still alive...

[The Great Pretender]

Can they censor misspellings? "While I was reading Tolkin..."

Re:If tolkien was still alive...

[ShakaUVM]

If Snorri Sturluson was still alive, he'd slap the shit out of the Tolkien estate for ripping off his compilation of Nordic sagas that he ripped off the skalds that retold the stories that they heard from other skalds...

And if you guys have never read a biography of Snorri, you should. Besides having a kick-ass name for a troll, he lived a very interesting life, and is a good example of why, if you're looking for peace, you shouldn't dismiss your army before the battle as a "sign of good will". =)

Re:If tolkien was still alive...

[VortexCortex]

...Unfortunately, he isn't.

Those folks at the Tolkien estate should get the Evangelion folks on the phone -- They should be suing the button making mooch too!

Bonus: Writers of that show haven't been dead for 30 years.

Seriously?

[WiiVault]

The fact that you think a name should be trademarkable is nuts. I have a last name, should I have the ability to ban anyone else from using it to gather money? This lawsuit is insane.

Doh!

[Aighearach]

Are they suggesting that the fictional Tolkein is a marketed as a real author, or that the real Tolkein is a fictional character?

Because your legal name is a fact, and people can talk about you all they want.

Trademarking names only works when it is not really your name. In that case, they'll have to say his legal name to show some chain of ownership regarding this supposed trademark. And then we can start fixing the references to him.

But in any case, they would have to argue that a reasonable person would be confused and think that the fictional Tolkein was really Tolkein.

Re:Doh!

[Okonomiyaki]

Maybe they think they own Evangelion.

Re:Doh!

[gl4ss]

yep, that's exactly the double strange thing about this: evangelion in that context refers directly to a tv-series, while tolkien refers to the man, a real author and not his works for which he would have copyright, though holding a copyright to the name of the title doesn't really prevent others from saying out the title out loud.

so the evangelion publishers would have a stronger case.

IP in the West is broken

[Anonymous Coward]

Go to Japan this summer and drop by the Tokyo Big Sight convention center. If you go at the right time, you might run into Comiket, the world's largest convention, with a million attendees and over 30,000 groups (circles) selling merchandise, such as comics, video games, and music. For three days, millions of pieces of human culture trade hands.

The vast majority of this merchandise infringes copyright.

Yet the world is far better off for it existing -- even the companies whose copyright it infringes. Most companies have long ago realized that this is a massive, massive boon to their profits. Some companies have explicitly started to leverage this power, with franchises like Vocaloid making ridiculous amounts of money.

Meanwhile, in the West, we sue over buttons containing the names of long-dead public figures.

Re:IP in the West is broken

[TheVelvetFlamebait]

Most companies have long ago realized that this is a massive, massive boon to their profits.

...which is why there is no problem. Legislating good business practice is rarely a good idea, because such laws are almost always redundant (since companies almost always gravitate to good business practices naturally) and/or myopic (since good business practices tend to change fairly quickly).

Re:IP in the West is broken

[Ironix]

Imagine someone who's never been exposed to company A or their products, but runs across company B products, which are a derivative work of company A's products.

Now imagine that this person enjoyed company B's products so much that they had to have everything that relates to it, so they go out and but all related works produced by company A. Now remember, this person may have otherwise never been exposed to company A's products if it weren't for their exposure to derivative works produced by company B.

Don't tell me this would be a rare occurrence, for this has happend to me many times with respect to music, video, and written works. I have, through consumption of products that infringe on copyright, spent money to acquire the works that inspired them to begin with.

Re:IP in the West is broken

[Anonymous Coward]

This is not because Japan's laws being better - America took care of that - but because the manga writers and publishers have grey matter between their ears. That's something you can't expect from people who live as parasites.
For reference, in Japan, NDS memory cards are illegal. And so are kitchen knives. Japan works a bit better than America because the guy in charge thinks twice before sending a SWAT team to take your grandma down because she was holding an illegal weapon.

Re:IP in the West is broken

[ADRA]

Free Advertising
Brand Creation / Recognition
etc..

There may be a load of products / works that would get no benefit from black/grey markets, but there are a hell of a lot of them that would if done in the right way. Disney's scorched earth policy of protecting their works has just meant that fewer people are buying / watching their properties. There are so many alternatives to Disney these days that there are kids that are raised without their properties and are none the wiser. If a grey/black market for their products were still alive, at least you may see these kids screaming to go to Disneyland or buying plush toys, etc..

Re:IP in the West is broken

[PitaBred]

Our Puritan roots have never claimed "sanity" as a strong point

Streisand

[Anonymous Coward]

I can hardly believe that nobody has mentioned how much of a Streisand Effect this is creating. Everything the estate does to stop people from tolkien about Tolkien just further advances their 'problem'. It's like their lawyers are trying to troll them.

Wait. That's it. The lawyers for the Tolkien estate are creating these debacles simply to stay employed. Each one just creates another opportunity for them to capitalize on.

Re:Streisand

[sribe]

Dear sir, I am writing to you on behalf of the Streisand corporation to demand that you cease & desist your abuse of our trademarks ;-)

Re:Streisand

[idontgno]

We need new buttons.

"While you were reading Tolkein, I was listening to Streisand."

Listen up!

[NEDHead]

I'm Tolkien to you!

Re:Yawn

[Dachannien]

Copyright doesn't work that way. A copyright persists no matter how much you don't bother enforcing it. You're thinking of trademarks.

Also, names alone are generally not enough to merit copyright, but they can sometimes be trademarked.

Christopher is hack thats why

[grapeape]

Is anyone surprised? Christopher tried his hand at continuing his fathers legacy but despite turning anything written by his father be it incomplete manuscripts or scribbles on a napkin into publishing deals he has shown he is nothing but a pale shadow...milking his fathers legacy is all he has left.

Re:Christopher is hack thats why

[Anonymous Coward]

Baloney. I doubt that Christopher Tolkein holds any pretensions about his father's legacy, but he's been damn good as executor of JRR's literary estate. He's tried to put incomplete works into shape, he's done an extensive amount of literary criticism and review/publication of his father's papers. He's printed things both as an attempt at finishing his father's work (The Silmarillion) and as original texts (History of Middle Earth, Unfinished Tales). He's on the record second-guessing things, usually with a bit of self-disclaimer, ranging from his second thoughts about his Silmarillion to concern that the movie versions of LOTR couldn't live up to the original.

Yeah, it's *Christopher Tolkein* that tricked those nasty publishers into clammoring for anything/everything his dad wrote. (snort!). Face it, *WE ARE THE ONES THAT BEG FOR ANYTHING AND EVERYTHING LOTR-RELATED*, not him.

Time and again, he's had opportunity to lock down the estate and really be a controlling jerk. Instead, he's been the model son of a legend, IMHO.

Last of all, he's in his late 80's. He was an old man before the movies even started coming to life -- given how many ossified old farts I know, I'm damn impressed at how willingly he's embraced all that has happened -- Put bluntly, you oughta be horsewhipped for your unbased accusation that he's 'milking his fathers legacy'. He's done exactly what a literary executor is supposed to do, you moron.

Re:Christopher is hack thats why

[Antisyzygy]

Yes. Suing people over buttons is exactly what a literary executor is supposed to do.

My new Tolkien novel

[uvajed_ekil]

Here is my new Tolkien novel, in its entirety. The title is Screw the Tolkiens:

There once was was a man named Tolkien. He was nuts, and I don't care about him or his stupid family of bullies who misuse and abuse DMCA take-down notices. The End.

The preceding was a work of fiction which sprung purely from my imagination. As such, any similarity to actual events or persons is strictly coincidental. Now give me $5 since your read my book and probably enjoyed it.

Re:My new Tolkien novel

[sixsixtysix]

Who wants to buy a "Screw the Tolkeins" button?

Re:Tried to make up a scenario, failed due to filt

[Anonymous Coward]

It's just a simple repetition filter for any string. You'd have the same trouble typing in " Ha " too many times.

But from the Estate's point of view, they've just found a cheap form of advertisement. It costs them little to start an action like this and then everyone gets into it and, before you know it, everyone's discussing Tolkien again.

If I name my next son Tolkien...

[cultiv8]

Does this mean me or my son will get sued for copyright infringement?

Re:If I name my next son Tolkien...

[shutdown -p now]

You'll be sued. Your son will just become their property. ~

Fake band names...

[Sean_Inconsequential]

So they wouldn't like my fake band name: Tolkien Heads?

(Background: I enjoyed making fake band names combining something from fantasy or science fiction with a real band name, like Jefferson Starship Troopers)

Those royalty cheques are now infringing too

[Maow]

I do hope that their royalty cheques stop flowing due to this.

Publisher: "Sorry, Junior, cannot use the word 'Tolkien' anymore, so your royalty cheques are being put in escrow."

One can dream...

Re:Just for this...

[JohnRoss1968]

I think I'm going to write a story about a cross dressing, poodle molesting, never taking a bath, stupid failure at life serial killer. (who keeps a pair of his fathers old underwear around so he can sniff it). What should I name him???
How about Chris Tolken? Sounds about right to me.

I just Tolkiened.

[unity100]

actually i may or may not have just Tolkiened. But im not so sure after leaving the Tolkien and coming to the living room. I stopped by the kitchen to Tolkien my Tolkies, but the Tolkien setting was not on par with the Tolkiness of the situation.

So i think i Tolkiened my Tolkies .....

Or, 'imaginary property' rights may have hit rock bottom, and the heirs of a person who tried to share positive and enlightened principles through fiction may have foaming at the mouth out of their base, despicable greed.

Re:I just Tolkiened.

[maxwell demon]

They ran over to Sauron.

One trademark to rule them all
and in the darkness bind them.

Re:I just Tolkiened.

[toriver]

I smurf your Tolkien joke.

Re:Tried to make up a scenario, failed due to filt

[causality]

It's just a simple repetition filter for any string. You'd have the same trouble typing in " Ha " too many times.

But from the Estate's point of view, they've just found a cheap form of advertisement. It costs them little to start an action like this and then everyone gets into it and, before you know it, everyone's discussing Tolkien again.

True but it seems they have about as much need to advertise as say, McDonalds (yes, I note that McDonalds still airs commercials...).

Tolkien is as well-known among people who read books as McDonalds is visible since there's one on every street corner.

I am Tolkien

[istartedi]

I am Tokien. No, I am Tokien... etc. Now we can get sued by the Tolkien estate, and whoever wrote Spartacus.

Re:I am Tolkien

[FrangoAssado]

I am Tolkien and so is my wife!

There, now Monty Python can sue too.

Re:I am Tolkien

[Devoidoid]

I'm Tolkien and so is my wife!

Slow news day again?

[93 Escort Wagon]

Look, I don't really agree with the position, assuming the summary is representing it correctly - but what's with this particular submitter's morbid obsession with how the Tolkien estate is pursuing their purported intellectual property (or publicity) rights? Was he hoping to sell a line of Bilbo blow-up dolls?
 

Try an on-line directory .

[Alain Williams]

Eg: http://www.123people.com/s/tolkien that turns up Tolkiens by the page full — do you think that some of them might have something to say about their name being grabbed by the estate of an author — even if he was a good one ?

Re:Try an on-line directory .

[VortexCortex]

Eg: http://www.123people.com/s/tolkien that turns up Tolkiens by the page full — do you think that some of them might have something to say about their name being grabbed by the estate of an author — even if he was a good one ?

It's the "Estate of J.R.R. Tolkien" ... not "The Tolkien Estate". Since those folk are not J.R.R. Tolkiens, then the J.R.R. Tolkien trademark does not apply to them.

Also: The buttons did not include the text "J.R.R. Tolkien", so it should not fall foul of the J.R.R. Tolkien trademark either.

Just because many people choose to shorten J.R.R. Tolkien's name to just Tolkien when talking about him, doesn't mean that the trademark actually covers any use of Tolkien or J.R.R. separately. In any event I would simply make new buttons: "While you were reading about Hobits I was watching Evangelion."

(Note: Hobits, NOT Hobbits :-P )

Re:Try an on-line directory .

[sjames]

Further, I'll bet one of them has probably written something at some time in their lives even if it was just a creative writing assignment in the 3rd grade. How am I to indicate that I read one of their works?

Re:Tried to make up a scenario, failed due to filt

[Anonymous Coward]

you Eskimos are all alike.

Times that try nerds' souls

[eyenot]

Wow, for the first time in generations it looks like nerds face a challenge they might actually be up to.

You don't censor criticism and mere mention.

What every t......n fan should do, now, is give them what they want: never mention the crazy old coot or his hillbilly descendents ever again.

That shit was rotting your brain, any way. Learning enough about middle earth to make reading the books worthwhile is equivalent to several college courses, only fewer people want to employ you if you mention your intimate knowledge of middle earth languages, history, and geography. Pssst -- its lame.

These reclusive and obviously business- and politics-retarded layabouts are giving you the challenge, now, to quit suckling fantasy and engage more in reality. NO, not by mastering a dungeon with your dice and pencil friends. NO not by taking a degree in Harry Potter instead.

Just walk away from the dumb shit, and never look back. You'll be able to say, "I did this really adult thing, once."

Re:Times that try nerds' souls

[VortexCortex]

Just walk away from the dumb [fantasy], and never look back. You'll be able to say, "I did this really adult thing, once."

>implying that adult and fantasy are mutually exclusive.

Congratulations to the Tolkien Estate

[asdf7890]

Congratulations to the Tolkien Estate, on ensuring that I will never again spend money on anything that has the slightest chance of putting a penny in your grubby mits.

Re:Congratulations to the Tolkien Estate

[oobayly]

When Philip K Dick's estate tried pulling a similar move when Google announced the Nexus One I emailed them. Something along the lines of:

As a PKD fan, I'm quite disgusted by the actions of the estate, and for now on I will only purchase PKD books in charity shops such as Oxfam.

Seriously, the estate needs to be told by the fans that they're acting like complete fuckwits. Be polite though.

Re:Congratulations to the Tolkien Estate

[VortexCortex]

Congratulations to the Tolkien Estate, on ensuring that I will never again spend money on anything that has the slightest chance of putting a penny in your grubby mits.

"So Say We All"

Re:Congratulations to the Tolkien Estate

[asdf7890]

You might be right. I look forward to the estate issuing a full apology, publicly promising that this action will not be repeated in future, and chastising the attorneys accordingly. Conversely, if they let it lie then they are at very least complicit and my initial reaction stands.

Re:Congratulations to the Tolkien Estate

[shutdown -p now]

Seriously, the estate needs to be told by the fans that they're acting like complete fuckwits.

This particular estate has been doing it for decades, and they have enough fans that they don't give a fuck about the few who actually care about such things.

Re:Tried to make up a scenario, failed due to filt

[Stargoat]

I'll have the Tolkien, Tolkien, Tolkien, Tolkien, Tolkien, Tolkien, Tolkien, Lewis, and Tolkien.

So what now?

[Arancaytar]

It's now forbidden to be tolkien about Tolkien?

Re:So what now?

[Legion303]

I have no idea what you're Tolkien about.

Just redo the buttons

[nedlohs]

While you were reading Tolkien®, I was watching Evangelion

Or if it's not registered...

heck add a little footnote:

*Tolkien isn't the name of an author it is a trademark owned by The Tolkien Company.

Re:Just redo the buttons

[nedlohs]

Who cares? People can like what they like. People can think that Justin Bieber is better than the Mozart for all I care.

Re:Just redo the buttons

[oji-sama]

See the http://www.tolkienestate.com/contact> contact form, they are actually encouraging people to write "tolkien" :p

Not really sure what you meant by that...

[denzacar]

You were tolkien a little funny there.

And besides, everyone knows that JRRT wasn't smokin no joints. He used a pipe for Iluvatar's sake.

Re:Not really sure what you meant by that...

[JustOK]

don't Bilbo that joint, my friend.

Re:Not really sure what you meant by that...

[Mordok-DestroyerOfWo]

Would you please Gimli a hit too?

Re:Not really sure what you meant by that...

[socsoc]

What?

Guillotine time

[macraig]

Tolkien's heirs need to have their necks introduced to a guillotine. Their behavior is precisely the sort that resulted in revolutions of the past. Their behavior makes Sauron seem like a nice guy by comparison.

"Zazzle" dropped the ball

[Mike610544]

I understand that lawyers are expensive, but this one would require about 30 seconds of analysis. IANAL, but can't they also get compensated for that 30 laywer seconds for such an obviously retarded waste of time?

Re:Tried to make up a scenario, failed due to filt

[tunapez]

tolkien ring error?

Re:Tried to make up a scenario, failed due to filt

[Culture20]

Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Mushroom! Mushroom! Tolkien Tolkien Tolkien Tolkien A SNAKE! A SNAKE! Oh it's a snake!

Tolkien = Sauron

[Advocatus Diaboli]

Whose name won't be uttered.

Re:Tried to make up a scenario, failed due to filt

[smellotron]

I'll have the Tolkien, Tolkien, Tolkien, Tolkien, Tolkien, Tolkien, Tolkien, Lewis, and Tolkien.

But I don't want any Tolkien!

Tolkien estate

[WildTurk]

Estate of Tolkien keen on tolls? /Tolkien troll :)

Re:Tried to make up a scenario, failed due to filt

[Anonymous Coward]

Nah, he's been tolkien too much of the good shit.

Wow, they've really turned into dicks lately.

[BeShaMo]

The Tolkien estate that is.

Re:Eye Pee

[maxwell demon]

There's nothing wrong with 'Eye Pee' law! Nothing. Next week, I'm going to copywrite the words 'the', 'it', 'and' and the letters 'E' and 'S'. You are all on notice! I'm open to licensing, say 20 dollars per use, with only 2 dollars per use for book publishers and newspapers. Internet sites will be on a per-click basis. Piracy will not be tolerated! Pay me or be a crimminal. Also, you won't be allowed to use these words in speech. You will all have to find alternatives.

No problm. I will not uth thi mintiond words ath wll ath thi lttrth. Yith, thith will mak my txtth a littl bit hardr to rid, but that'th OK. Thi only problm ith that pipl now will think that I'm lithpling.

Re:Tried to make up a scenario, failed due to filt

[Anonymous Coward]

I expected this sort of Tolkien resistance...

Re:Tried to make up a scenario, failed due to filt

[alienzed]

switch to an Ethanimus connector, handed down to man by Metcalfe himself! also David Boggs, Chuck Thacker and Butler Lampson.

Re:Yawn

[VortexCortex]

To be honest I cant see the issue, it's a simple case of copyright infringement and the rights holder doing what they legally have to do (don't forget if you don't protect your rights under US law you lose it). Suing when Tolkien is used in a historical context is pushing the limits though.

WOAH! That's news! Copyrights on Names?! No, I think you mean Trademark. And, As far as I can tell -- there is no "Tolkien Estate" It's the "Estate of J.R.R. Tolkien". Just because you and I abbreviate the name as Tolkien, doesn't mean that the shortened version is actually trademarked. Sony hasn't got all uses of the name Sony trademarked...

If my last name was Tolkien, and I wrote a book "by VC Tolkien". Would JRR T.'s estate would sue me to prevent me from diluting JRRT's "brand"? That's not how it works.

If I create buttons that say: "Kiss me I have a big Johnson" Johnson & Johnson won't sue me (see: 'Big Johnson" shirts/hats/buttons/etc) -- Penises and Lotions are two different brands... If I make buttons with the words: "Dip Your Johnson in Johnson & Johnson" they MIGHT have a case since I spelled out the full name of their company.

The buttons don't contain the text "JRR Tolkien". They say "Tolkien".

I question: What market is the J.R.R. TOLKIEN BRAND even in? If you're a completely different market, Trademarks don't apply -- There's a "Sony & Sons" motorcycle repair shop in my town -- Sony Computers can't force a name change because it's a totally different market.

Is the estate of J.R.R. Tolkien in the button production business? Nope.
Is it involved with Anime? Nope.
Does the estate of J.R.R. Tolkien write fiction? Nope! Not since J.R.R. Tolkien has been dead for 30 years.
Can I buy a book by "Tolkien"? Nope! The works entrusted to the estate of JRR Tolkien are all specifically authored by: "J. R. R. Tolkien"
How can you "read a Tolkien" anyway? (with one of those stupid Scientology ohm meters?)

What market is the JRR Tolkien estate in? Old Fantasy Fiction? What have they to do with new buttons containing references to old book authors & anime? (hint: The button didn't even read: "While you were reading books by J.R.R. Tolkien I was Watching Neon Genesis Evangelion", IMHO, that means neither brand should be able to use the DMCA to limit these buttons without facing penalties due to wilful abuse of the DMCA.

P.S. Guess I'll be adding JRRT's tired old fiction to my list of boycotts.

WRONG

[SmallFurryCreature]

As said below but not clearly enough, the usage of the classifier Tolkien for Elves is to seperate human style civilized elves from the Santa's helpers or fairy folk. It has NOTHING to do with Tolkien having invented them, merely that this type is most easily identified with his work. SAME as that when a movie uses realistic space travel we claim it more 2001 then Star Wars.

People like to put labels to things to make it more clear to other people of the same culture. For instance, fire engine red isn't a color and not all fire engines are red but you know what intensity of red I mean nonetheless.

Tolkien is a name with no particular selling power anymore. Nothing new is produced by Tolkien for some time, probably because he is death. There shouldn't even be a trademark involved. Imagine if other companies did the same. Everytime you say you made a xerox on a canon, your ass would be sued off in stead of copied.

Re:WRONG

[Anubis350]

Nothing new is produced by Tolkien for some time, probably because he is death.

So, when the 4 riders appear, will Death be riding a Pale Oliphaunt?

Re:WRONG

[SudoGhost]

People like to put labels to things to make it more clear to other people of the same culture

That's exactly the point I was making. I'm not suggesting that Tolkien invented elves, or have any rights to elves in any way. But that the usage of 'Tolkien' to describe a type of elf gives the word Tolkien a secondary meaning. You're arguing the same points I was making.

And I'm not saying that what happened in this particular instance is valid. I was stating that names can in fact be trademarked. Xerox and Canon are trademarked.

Nothing new is produced by Tolkien for some time, probably because he is death.

That's a frightening concept. At least I'll be entertained while he takes me to the land of the dead.
And by the way, fire engine red is a color. #CE2029.

subject

[Legion303]

So Tolkien was in the outhouse having sex with his mother...

(The Supreme Court already ruled on this one, Estate. Sorry.)

Re:Tried to make up a scenario, failed due to filt

[Moryath]

It's n..... pidgin because after 200 years in this country they STILL can't speak English.

Actually, it's worse than that. You see, the black leaders of yesteryear DID speak english very well. And they encouraged their children, and everyone else of their race, to do the same. Even in the 1980s and 1990s you had leaders like Bill Cosby and Whoopi Goldberg who knew that speaking properly and becoming educated were critical to the success of black children.

But you also have people like the gang leaders, Louis Farrakhan, Jesse Jackson, Al Sharpton - the race and poverty pimps who thrive on deliberately keeping blacks uneducated and afraid of "the man" and ensuring that they will vote in whatever way Jesse/Al tell them to vote. The people who insist on dressing up racial separatism as "keeping it real."

It's sad. George Washington Carver, Martin Luther King Jr, Langston Hughes, Charles Hamilton Houston, Harry Belafonte, Carter G. Woodson, Mary Bethune, Paul Robeson, James Baldwin, Adam Powell Jr, Booker T. Washington, Frederick Douglass, Thurgood Marshall, W.E.B. Dubois - they would all be appalled beyond measure at the behavior of those who behave like this.

Re:Tried to make up a scenario, failed due to filt

[BillX]

But that's not got *much* Tolkien in it...

Everyone loves Tolkien, hates the estate

[ET3D]

Most people hate the Tolkien estate. Copyright was made to encourage creativity. The Tolkien estate is the best example of how copyright law is used to stifle it instead.

Re:Everyone loves Tolkien, hates the estate

[theArtificial]

Most people hate the Tolkien estate. Copyright was made to encourage creativity. The Tolkien estate is the best example of how copyright law is used to stifle it instead.

Surely you must be joking!? Disney > Tolkien on the evil-o-meter by a hilariously massive amount. Which company has lobbied for copyright extension or taken characters from the public domain? I don't really enjoy the current duration for copyrights or enforcement of trademark law in the US and please don't put me down as a Tolkien apologist but your 'best example' is laughable.

However if you have some affiliation with Disney I completely understand ;)

Re:Tried to make up a scenario, failed due to filt

[Darinbob]

What if you say Tolkein instead?

Richard Yates

[phmadore]

The writer Tao Lin wrote a novel called "Richard Yates" which features Hailey Joel Osment as a main character. What gives, family of J.R.R.?

One Estate to rule them all

[cameni]

One Estate to rule them all,
One Estate to find them,
One Estate to bring them all
and in the darkness bind them.

Re:Tried to make up a scenario, failed due to filt

[BeanThere]

You know the more free advertising you do for Tolkien's work like that, the more money the estate makes, which might not be quite the spiteful effect you had in mind there. This is reverse-psychology-streisand-effect, or something like that.

Re:Eye Pee

[Scarletdown]

There's nothing wrong with 'Eye Pee' law! Nothing. Next week, I'm going to copywrite the words 'the', 'it', 'and' and the letters 'E' and 'S'. You are all on notice! I'm open to licensing, say 20 dollars per use, with only 2 dollars per use for book publishers and newspapers. Internet sites will be on a per-click basis. Piracy will not be tolerated! Pay me or be a crimminal. Also, you won't be allowed to use these words in speech. You will all have to find alternatives.

No problm. I will not uth thi mintiond words ath wll ath thi lttrth. Yith, thith will mak my txtth a littl bit hardr to rid, but that'th OK. Thi only problm ith that pipl now will think that I'm lithpling.

Rest easy. Anonymous Coward only did a copywrite. If he had established a copyright, then you would have cause for concern.

Re:Tried to make up a scenario, failed due to filt

[marcello_dl]

Tolkien who?

Re:Tried to make up a scenario, failed due to filt

[youn]

I thought the game started with knock knock, who's there? :)

Sauron...

[dugeen]

..did not use his right name or allow it to be spoken. Full marks to the Estate for following in his footsteps.

Re:Tried to make up a scenario, failed due to filt

[RDW]

'Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Mushroom! Mushroom! Tolkien Tolkien Tolkien Tolkien A SNAKE! A SNAKE! Oh it's a snake!'

Careful, they're already suing over this:

http://www.weebls-stuff.com/toons/special+edition/

Re:Tried to make up a scenario, failed due to filt

[moodyblue]

Are you sure of Whoopi "I know it wasn't rape-rape" Goldberg?

Until it gets challenged, it's not going to change

[sarbonn]

So they issued a takedown notice. If we want to change these draconian procedures, now is the time for the organization to challenge it in court. That's really the only way it's going to change and takedown notices will cease. Otherwise, if they cave in like so many other people and organizations, then the "Tolkien" people will continue to issue takedown notices. Unfortunately, to fight it, the person has to have the money, the will and the desire to overturn what, in my opinion, is wrong. But my opinion means nothing as long as the people who have actual cause back down every time there's a challenge. Not that I blame them, but until some legal challenging authority steps in, like an ACLU, this sort of thing is going to continue to happen because they're using their clout of wealth and prestige to push their unilateral control of whatever they deem to be the law.

Tolkien family fails at law

[Drakkenmensch]

This is not how copyright works!

Russian Scientist Writes Book

[Phoghat]

A Russian scientist Kirill Yeskov wrote a book "The Last Ring Bearer" which is a take on the trilogy where the Ring of Power is most likely a much-altered heroic retelling of a major war - but what was that war really about?

The result of this re-appraisal was the publication in 1999 of The Last Ring-bearer - a re-thinking of Tolkien's story in real-world terms. Dr. Yeskov, a professional paleontologist whose job is reconstructing long-extinct organisms and their way of life from fossil remnants, performs essentially the same feat in The Last Ring-bearer, reconstructing the real world of Tolkien's Arda from The Lord of the Rings - the heroic tales of the Free Men of the West written in that world. We have a pretty good idea how well heroic tales map to reality from our own world.

The work was published with great acclaim in Russia and Europe, but no attempt was made at publishing in the US due to the litigiousness of the Tolkien family. It is available as a free download in both the original Russian and in English .PDF at Live Journal

Re:Tried to make up a scenario, failed due to filt

[speculatrix]

Sounds like too much tolkien and no action!

Re:Tried to make up a scenario, failed due to filt

[Culture20]

They should sue over the original movie scene. Elves indeed!

Re:Might want to read the full sentence for contex

[cpt kangarooski]

But I don't agree.

Copyright is there to benefit the public. That's the whole point. Whether or not an author benefits, and if so how much, is secondary, and merely a means to an end. The public doesn't care about authors -- it cares about the creative works that are the output of authors. If we could get works without needing the necessary evil of authors, that would be peachy.

The only prudent approach

[Ol Olsoc]

is do not buy anything with the name To*kien associated with it. Until we get this figured out, it's just too risky. Has /. gotten it's takedown notice yet? An awful lot of that name on this page, and given that /. has ads, and presumably makes money off them, its not impossible that they are infringing on the property rights of the estate of the name which may not be mentioned.

[censored] Estate Censors the Word "[censored]"

[Toad-san]

Here, let me fix that title for you.

Now, all we have to do is convince ALL the online book stores and movie sites to remove that T* word from ALL their ads and reviews.

I'm sure that'll make the T* Estate happy, now won't it?

Oh, and if you haven't figured it out yet: T* Estate == morons

I'll see your Badger, and raise you an Iwata...

[Tetsujin]

Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Mushroom! Mushroom! Tolkien Tolkien Tolkien Tolkien A SNAKE! A SNAKE! Oh it's a snake!

Look at him now, it's Magical Tolkien,
He's havin' a show, they're packin' the folk in,
And in due course, disappearing a dwarf
Where is the dwarf? Hidden of course!

Takin' a bow, it's Magical Tolkien,
His assistant's an elf, he ain't no Vulcan,
Look at him there with his leathery, leathery whip,
it's made of Hobbit,
and with a little flick

Yeah, yeah, yeah, the dwarf is back,
Yeah, yeah, yeah, the dwarf is back,
Back, back, back from his magical journey...

What did he see, in the parallel dimension?

He saw nine fell kings on their fell steeds,
Seeking the One Ring, doing evil deeds,
Across the land, doing their dark lord's bidding...

Re:Tried to make up a scenario, failed due to filt

[Tetsujin]

Sounds like too much tolkien and no action!

Let's face it, folks: you can't Tolkien outta anything!

Double Feature

[Tetsujin]

more 2001 then Star Wars

THAN.

Actually, 2001, then Star Wars makes kind of a nice double-feature. 2001 provides the substance, while Star Wars, with its more light-hearted, whimsical approach, helps take the edge off after all the seriousness of 2001.

I wonder....

[Hasai]

....How Professor Tolkien would have felt about his works being the property of a pack of bean-counting ambulance chasers?
:\

Re:Might want to read the full sentence for contex

[GooberToo]

You can disagree all you like - but you continue to flatly wrong so long as you continue that line of thought.

Copyright, first and foremost, is designed to benefit the author for a period of time. After which, it then is received by the public for the good of all. Without the former, there will almost never be the later. You're argument actually harms the public good by destroying it before it can even be created.

Even the quotes you provide completely validate what I'm saying (as others have pointed out) and invalidates you're own position.

Re:Until it gets challenged, it's not going to cha

[russotto]

So they issued a takedown notice. If we want to change these draconian procedures, now is the time for the organization to challenge it in court. That's really the only way it's going to change and takedown notices will cease. Otherwise, if they cave in like so many other people and organizations, then the "Tolkien" people will continue to issue takedown notices.

Even if the buttonmaker could challenge the Tolkien estate in court (he can't, because there's no suit and they sent a C&D to Zazzle, not him. He could try a suit for tortious interference, I suppose), if he won the only consequence is he'd be able to make buttons. There would be no punishment to the estate for their abuses. So they'd continue issuing these C&Ds.

Re:Tried to make up a scenario, failed due to filt

[Pechkin000]

Just curious how many dropbox referrals did you manage to get off your sig?

Re:Tried to make up a scenario, failed due to filt

[Shikaku]

12.

If I could actually get a decent website to promote myself (with ads of course) I'd do that.

We're Tolkien about shafted.

[Geminii]

Can you dig it?