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.

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

[Daniel Dvorkin]

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

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

[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

[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

[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

[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

[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

[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

[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]

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

[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

[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

[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

[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

[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

[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

[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

[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

[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

[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

[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

[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

[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

[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

[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

[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

[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

[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

[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

[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

[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

[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

[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

[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.

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...

[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". =)

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.

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: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.

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.

If I name my next son Tolkien...

[cultiv8]

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

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: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.

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

[Anonymous Coward]

you Eskimos are all alike.

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: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.

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!

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!

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: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?