Tolkien estate censors button for having the word 'Tolkien'

[Commie Pinko Dirtbag]

That's "Intellectual Property" fer ya.

http://www.boingboing.net/2011/02/25/tolkien-estate-censo.html

Not content to censor a book that combines literary criticism and fiction by including JRR Tolkien as a character, the Tolkien estate has shut down Adam Rakunas, who makes and gives away buttons that have the word Tolkien on them:

Back in the late 2009, I got into a Twitter conversation with Madeline Ashby about geek culture, fandom, and a bunch of stuff like that. Madeline wrote, "While you were reading Tolkien, I was watching Evangelion." I thought this was an excellent encapsulation of the divide in SF/F/Whatever fandom, and thus took to Zazzle to make little buttons with her quote. I bought a bunch, handed them out at a few conventions, then I had a kid and promptly forgot all about it.

Until today, when Zazzle emailed me to say they were pulling the buttons for intellectual property right infringement.

And guess who complained about their rights being infringed?

I've tried to come up with something more to say about this, but I'm too angry and confused and tired to say anything more than I did in the title of this post. Have fun milking your dad's stuff, Christopher Tolkien!

The Tolkien estate has long had a censorious bent -- 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). 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.

The JRR Tolkien Estate Can Go Fuck Itself (via Futurismic)

Note to mods: BoingBoing is a Creative Commons licensed site; they allow entire reproduction of their articles.

[Ohio Joe]

1. Protecting an IP and censorship are not the same thing

The way I see it, they have every right to prevent others from making money off of the Tolkien name.

[Commie Pinko Dirtbag]

4. You think THAT is reasonable?

:crazy:

[Ohio Joe]

6. I never said reasonable

I said that the claim of censorship was incorrect... and it is. I also said they have the right to protect the name they own. The article claims the estate objects to buttons he gave away years ago, that does not seem to be true. It seems they object to ones he is selling on Zazzle.

Why should other people be allowed to profit off of the Tolkien name?

[Commie Pinko Dirtbag]

9. One: any prior limitation of speech is, by definition, censorship.

Two: you said it's reasonable without using the word "reasonable".

Three: there is no "Three".

[Ohio Joe]

12. Except that they are not limiting his or anyone elses speech

They are stopping him from making a profit on the Tolkien name. A bit of a difference there.

[jberryhill]

66. Profiting from a parody or criticism is perfectly fine

There is no consumer confusion going on with this button.

* Girl Scouts v. Personality Posters, 304 F.Supp. 1228 (9 Oct 1969) (defendant published posters showing pregnant girl in Girl Scout uniform with caption stating Girl Scout's motto "Be Prepared"; preliminary injunction denied because no consumer confusion)

* Lucasfilm v. High Frontier, 622 F.Supp. 931 (26 Nov 1985) (public interest groups' use of Lucasfilm trademark "Star Wars" to describe President Reagan's Strategic Defense Initiative was not trademark infringement)

* L.L. Bean v. Drake Pub., 811 F.2d 26 (1st Cir. 12 Feb 1987), cert. denied, 483 U.S. 1013 (1987). (parody of L.L. Bean catalogue in an erotic magazine was not trademark infringement)

* Hormel v. Jim Henson, 73 F.3d 497 (4 Jan 1996) (Muppet character named "Spa'am" did not infringe Hormel's trademark name for its canned meat product)

I'm going to guess you thought "Oh Lord, Won't You Buy Me A Mercedes Benz" was an infringement by Janis Joplin.

[muriel_volestrangler]

5. There's nothing 'intellectual' about the use of his name

This is not about 'intellectual property', because it's not about Tolkien's work. It's a reference to his name. If anyone's intellectual property is involved here, it's the creators of Evangelion, because they actually made up that word. But a claim that just a mention of someone's name is 'intellectual property infringement' is absurd.

And do we actually know that person made any money? They handed them out at conventions. Zazzle charged them something for printing them. Did anyone else buy them? Or is it that Zazzle made a buck or two by printing Tolkien's name that you object to? Should all newspapers that mention his name have to pay royalties or desist? Is DU going to be in trouble now that his name is here and there are adverts here too?

[Ohio Joe]

8. Yes, there is

And they have the right to protect it.

[Commie Pinko Dirtbag]

10. Just like those states have "right to work" laws.

Use of positive words to name dickish concepts is one of the oldest tricks in the book.

[Ohio Joe]

13. So...

You do not think people have the right to protect what they create? Anything should be open for anyone else to use?

[The Straight Story]

14. I could see if they used the name of his works he created, but not his last name

What if there is someone else with the same last name? How can you force others not to use their name?

[Ohio Joe]

16. That would more of a grey area

This was pretty specific and it would be a mighty stretch to think they were referencing a different Tolkien. As far as the book, I know if I was famous and someone wanted to use me as a fictional character in their book... I would not want that happen. I think people should have a right to own who they are and to not allow others to use who they are for profit.

[Commie Pinko Dirtbag]

19. By that reasoning, no unauthorized biographies, ever. -nt

[Ohio Joe]

20. Do you understand the difference between fiction and non-fiction?

[Commie Pinko Dirtbag]

22. J.R.R. Tolkien's NAME isn't fiction.

That was actually his name.

[Ohio Joe]

28. So anyone can use it any way they want for profit?

What is your point?

[Commie Pinko Dirtbag]

29. My point is there's nothing wrong with the button, and its author should be able to sell it.

Moreover, since it's parody/satire, it's covered by the same decision that allowed Larry Flynt to make crude jokes about Jerry Falwell.

Do you think that decision was wrong and Mr. Flynt should not have been allowed to sell those Hustlers?

[NashVegas]

40. There's a Bit Wrong With the Button

It's not parody or satire, and where it hits legal trouble is it's an out-and-out attempt to damage Tolkien's "brand," if you will, and it's being done for profit reasons.

[jberryhill]

64. No - it is a nominative use

The use of a brand in the nominative sense - i.e. to refer to that brand for the purpose of comment or criticism is perfectly fine, and can certainly be a commercial commentary or criticism.

* Girl Scouts v. Personality Posters, 304 F.Supp. 1228 (9 Oct 1969) (defendant published posters showing pregnant girl in Girl Scout uniform with caption stating Girl Scout's motto "Be Prepared"; preliminary injunction denied because no consumer confusion)

* Lucasfilm v. High Frontier, 622 F.Supp. 931 (26 Nov 1985) (public interest groups' use of Lucasfilm trademark "Star Wars" to describe President Reagan's Strategic Defense Initiative was not trademark infringement)

* L.L. Bean v. Drake Pub., 811 F.2d 26 (1st Cir. 12 Feb 1987), cert. denied, 483 U.S. 1013 (1987). (parody of L.L. Bean catalogue in an erotic magazine was not trademark infringement)

* Hormel v. Jim Henson, 73 F.3d 497 (4 Jan 1996) (Muppet character named "Spa'am" did not infringe Hormel's trademark name for its canned meat product)

[Commie Pinko Dirtbag]

15. Straw man is strawy.

Reply is unnecessary.

[Ohio Joe]

17. Allow me to rephrase

How is it a dickish concept to want to prevent others from making a profit on who you are and what you create?

[Commie Pinko Dirtbag]

18. Not even a little bit less strawy.

Response still unneeded.

[Ohio Joe]

24. WTF?

I say people have the right to protect who they are and what the create... you claim that is a dickish concept.... I ask how... and you claim that is a strawman... Do you know what a strawman is? Am I incorrect in your claim... Did I misunderstand you comment? If so, please elaborate.

[Commie Pinko Dirtbag]

25. Yawn.

[muriel_volestrangler]

23. It's a dickish concept to try to prevent any reference to you; even more so for a man dead 38 years

If a professional writer produces an article titled "Why Obama should not support Gaddafi", should they have to get permission from Obama and Gaddafi before taking payment for it? What if the article also mentions Mubarak, Clinton, Bush and Saddam? Should they have to get permission from all those, and from a relative of Saddam?

[Ohio Joe]

26. They are not trying to prevent any reference...

They are trying to prevent profit. Unless Zazzle was still selling these buttons, no one would have contacted them for a one time order done years ago. Even if they had, Zazzle would not have said anything to this guy if they were no longer making and selling them.

[muriel_volestrangler]

31. And a writer for a newspaper makes a profit from mentioning people too

Should all newspapers and magazines have to give a cut to any person they mention in an article, or give every single one of them the right to veto the article? That seems to be your preference.

What's your opinion on Righthaven? Do you agree that DU should have had to pay them for using a few paragraphs from a story? Your view actually seems far more extreme than Righthaven's - for you, DU shouldn't even be mentioning the names of any person, or any of their work, who is alive or has died in the past 50 years (or whatever the current limit is for copyright in the USA).

Zazzle keeps everything up for sale. We don't actually know if any were sold beyond what Adam had made for himself; http://madelineashby.com/?p=552|he said if any were bought beyond that>, the profit would go to the woman who actually said the words. You know, the person who actually has a genuine claim to 'intellectual property' here. She is now astounded at the pettiness of the Tolkien estate.

[DireStrike]

61. Tolkien created his name?

[bigmonkey]

35. Tolkien is dead.

He has nothing to protect. It's the laws that assign legal rights to other persons than the author that are in question here.

Do you really think we should, say, be paying Isaac Newton's descendants whenever we use calculations involving his theory of gravity?

Myself, I think copyright should be un-assignable.

[Commie Pinko Dirtbag]

41. +1

[hunter]

68. Maybe assignable to minor children...

... and spouses who were spouses at the time of the work's creation & copyright. Trust me, they have some very real stake in the work.

Anyways, it's an interesting thought experiment.

[PVnRT]

21. Tolkein is not a "creation," he is a public figure

Your interpretation here would mean that no one could make anything that referenced anyone's name on it.

[Ohio Joe]

27. Not what I am saying at all

I am saying it is not ok to make a profit off of someone elses name/works. You want to report news or write a biography, fine. You want to sell trinkets or use a real person in a work of fiction... No. There has to be a line.

[Commie Pinko Dirtbag]

30. You fail to draw a line.

"report news or write a biography" IS "profit off of someone elses (sic) name". How in the world it isn't?

[Javaman]

33. I'm going to wade in with the little I know regarding copyrights...

then slowly back away.

What maybe at issue here is ancillary and character rights.

While Tolkien was a public figure, the name and image is now a matter of business. More than likely, his name (since it is unique) and his works now fall under ancillary writes.

While works written prior to 1924 are free from copy write issues aka Lovecraft.

Many of the estates of now deceased writers had their works, images and specifically names copyrighted as per their estate.

So in essence, while this whole mess appears "dickish", the family of JRR Tolkien may have every legal right to do what they did.

While I don't agree with it, it maybe just a matter of lawyers doing what lawyers do in order to justify their retainer. ;)

[muriel_volestrangler]

32. Why is reporting news or writing a biography fine?

What is the difference between that and someone comparing two fantasy genres on a button? Both newspapers, or other news media, and biographies, are written for profit.

[JVS]

37. "Tolkein" in that usage actually refers to a corpus of literature and not a man.

One talks to Tolkein, one listens to Tolkein, one even reads what Tolkein writes, but one does not read the man.

[Withywindle]

54. Aiiee, the spelling is hurting your case!

TolkIEn.

No one talks to or listens to or reads "Tolkein" because, even if some "Tolkein" dude existed at some point, s/he was definitely not the same person as Tolkien who wrote 'The Hobbit' and 'The Lord of the Rings.'

Nitpicky? Of course, but court cases hinge on far more picky cases than this!

[JVS]

55. Insert correct spelling, reconsider.

:eyes:

Then again what should I expect in a conversation about this shit. Why can't the world's biggest dorks read real medieval literature instead of this fake ass shit?

[Withywindle]

57. Yeah, sorry.

but I have to say I love JRRT SO FUCKING MUCH - and a big part of that is his interest in the origins of words.

I TOTALLY agree with him that etymology is aways worth learning.

Either you enjoy reading history or you don't. And if y

[jberryhill]

65. Doesn't matter - it is still a nominative reference and comment about that literature

[JVS]

36. The word "Evangelion" was not made up by those people.

[pipoman]

7. According to the OP

the buttons were given away. They undoubtedly have rights to the Tolkien trademark, they can't prevent the use of the word in passing or the printing of the word. As for the book, they would have to prove that the publisher/author were actually enriched by the use of the word...I'm sure the publisher just didn't want to spend the money to defend the use of the word. If the word was used as a passing reference it is doubtful that the Tolkien name owners would prevail.

[Ohio Joe]

11. I'm not sure I buy that

If zazzle was not still advertising them, why would the estate tell them to stop doing something they were not doing?

[NashVegas]

42. Follow The Interior Links

The buttons were for sale.

[The Straight Story]

2. Interesting read, thanks for sharing it K&R (nt)

[Zephie]

3. Yeah, who needs the fans? Screw them!

It seems like the things I like the most are always the first to jump down a fans throat for appreciating their work.

[muriel_volestrangler]

34. I think this will backfire on the estate: new products on Zazzle:

http://www.zazzle.com/harpocrates/gifts

http://rlv.zcache.com.nyud.net:8080/christopher_censored_my_badge_button-p145133829021270883qtd0_210.jpg

[NashVegas]

38. The Only Asshole I See Is the One Trying to Make Money By Dissing Someone Else's Art/Subculture

Sorry, but some of us have already been through this one, when the "Disco Sucks" movement was created by bar owners, the bands that played in those bars, and a certain DJ, whose rock-&-roll-based incomes were all threatened by disco.

[Iggo]

43. But Disco really did suck. (n/t)

[NashVegas]

46. Doesn't Matter

It would have gone the way of every other music phase. Instead, we got another 20-30 years of knuckle-dragging RAWK.

[Iggo]

51. So we're knuckle-draggers, eh?

Gotcha.

Thanks.

[muriel_volestrangler]

44. What the OP says is "I thought this was an excellent encapsulation of the divide"

So, no, the person who made this into a button had it said to them, and just thought it a notable saying. He is not 'trying to make money by dissing someone else's art'.

As it happens, he says he loved The Lord of the Rings, and hated The Silmarillion.

Criticism is fair, anyway. Less fair when you start throwing words like 'asshole' around.

[NashVegas]

45. If You Follow The Interior Links

You will find the originator of the phrase asking people to buy the buttons so she can make money off of them.

[muriel_volestrangler]

49. And yet, she did not make the button

Do you really think "I prefer Japanese anime to Tolkien" is 'dissing' Tolkien? Do you think everyone is so thin-skinned that they shouldn't have their personal preference contradicted?

[NashVegas]

58. The Button Didn't Say "I Prefer ..."

If the phrase was, "I prefer ..." chances are it would never have been made into a button in the first place, as it wouldn't have been likely to cause anyone to raise an eyebrow - it's not a statement about anyone except the author.

Sowing divisions for profit is what Rush Limbaugh does.

If you wish to go around insulting others' personal preferences, that's your choice. When you make it your business, literally, you'd do better to choose a target that's not trademarked or copy-protected against being someone's stepping stone.

[muriel_volestrangler]

59. No, it was actually milder than 'I prefer'

It was just "you did this, I did that". I was being generous to you by interpreting it as 'I prefer' (over-generous, it seems). Your idea of 'sowing divisions' is ludicrous. It's not in the least insulting. She didn't 'make it her business'; she just said it, and when the man made a button saying it, he said that she could get any money if anyone bought it - because it was, in a sense, her intellectual property. Because it related to a thought she had, while the Tolkien family just inherited their name.

Limbaugh? Oh, why not go for broke - say "Sowing divisions for profit is what Hitler did". It's just as fucking stupid as what you say.

[NashVegas]

60. Perhaps You Simply Don't See It

Because your own posts are so intentionally insulting.

[muriel_volestrangler]

62. You're the person who introduced 'asshole', 'knuckle-dragging' and a comparison to Limbaugh

into the thread. You seem very keen yourself to insult people who have harmless opinions about fantasy fiction, or music.

There's been an update: the buttons were allowed back on Zazzle, and Zazzle claimed they were "removed inadvertently due to a miscommunication on our part". But Zazzle still claims they were contacted by the Tolkien Estate, while the Tolkien Estate claim they didn't ask for them to be taken down. But everyone concerned now agrees there was nothing wrong at all with the buttons.

[Name removed]

63. Deleted message

Message removed by moderator. Click here to review the message board rules.

[NashVegas]

67. Funny

I was not referring to other posters in this thread when I wrote those things, and it should have been obvious.

That you or others may identify with a tantrum-throwing nipplehead, well, that's your choice.

[NoPasaran]

39. Using this logic, Elvis Costello could be in a heap of trouble

[Joe Fields]

47. CMD, I agree.

I really don't know what else to say, except that it is silliness, to the nth degree.

[Withywindle]

48. Why am I reminded of a scene from Life of Brian....and "Jehovah"?

Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien Tolkien

[Dr. Strange]

50. I would say this seems a little Orwellian...

but some Machiavellian relative might submit me to a Kafkaesque world of pain.

[MilesColtrane]

52. The word mark, "J.R.R. Tolkien", is definitely protected.

That is this:



But, even though the button is a for-profit product bearing his name, I don't think that it can be yanked.

It is not the protected visual representation of his name, and it doesn't represent his name as endorsing a particular product or service. (Disclaimer: I'm not a lawyer. I've just watched a lot of Perry Mason.)

[Withywindle]

53. But what about this?

If you look close, it is cleary J R R T in Tengwar monagram. Beautiful. I've met at least 3 people who had this tattooed somewhere on their bodies. :D

[MilesColtrane]

56. That has also been trade marked by the Tolkien estate, but...

I doubt if they'd go after the tatoo shop owners.


The story mentioned in the OP is clearly a case of an overzealous lawyer who has convinced the heirs to sue with a low probability of success. (But, a nice paycheck for the lawyer)