Stephen Turner alerted us to a story about an impressive looking fan film “prequel” to Peter Jackson’s The Lord of the Rings trilogy that is being released this weekend. The project cost all of £3,000 and involves a huge cast and crew of volunteer fans — but still looks amazingly professional (and stunningly like some of the real actors/characters in Jackson’s version):
Once again, we’re seeing how modern technology allows people to create nearly the equivalent of a high budget production on a shoestring budget. But, of course, there are copyright questions raised by this whole thing. Tom sends in another version of this story that quotes the EFF’s Fred von Lohman saying that it’s not at all clear if the film violates anyone’s copyright. While the characters are the same, the story was created by a fan. In the original link above, the guy behind the project, Chris Bouchard, notes that he “got in touch with Tolkien Enterprises and reached an understanding with them that as long as we are completely non-profit then we’re okay.” So, it’s unlikely that any copyright lawsuit will arise from this, but the original question does remain: what if people made such a creative film without reaching such an agreement — or without promising to be totally non-commercial? Would that be so wrong? It wouldn’t take away from or harm Tolkien or Jackson’s work. It would only enhance it. So why should these fans even need to gain permission to create such a movie?
The whole ‘derivative works’ concept is complete BS. That’s not how the world worked before there were big media organizations around to claim otherwise. My original story is forfeit because it uses *elements* from your original story? I suppose yours sprang from your forehead like Athena (oops, whom do I pay for that?)
Anonymous Cowardsays:
Re: I can't wait
If it’s so easy to create something like Lord of the Rings, why haven’t you done it?
Anonymous Cowardsays:
Re: I can't wait
just a point, Athena isnt copyrighted by anyone as it was an old religion and as such cannot be copyrighted 😛
Studios seem to have (over the past ten years or so) realized that it’s counterproductive to sue fans for remixing, reusing, etc. As long as it’s done ‘for no profit.’ (Although there’s many understandings of what that actually means, even within the fanfilm community.)
The reason (or one of the reasons) that the US began to honor foreign copyrights was that American publishers found it difficult to compete with cheaper publications that were not covered by copyright here.
So, are these two viewpoints bound to run into each other as fanfilms get better? (and judging from the trailer, this one looks very good indeed.)
It’s the Trademarks on the characters that is the problem.
This film is 100% copyright the fans that made it.*
The trademarks belong to Tolkien Enterprises, except for any new characters that are created for this movie. They would belong to the creators (if they filed for them).
Lucasfilm, DC, Marvel and apparently Tolkien realize that as long as you have fans paying homage to your material in a non-profit fashion, that it’s cool.
“what if people made such a creative film without reaching such an agreement — or without promising to be totally non-commercial? Would that be so wrong?”
If Time magazine started publishing Superman and Spider-Man comics without paying anything for the characters, yes, that would be a problem. OK, so they are 70 years old now almost, so they probably should be public domain. Fine, what about Deadpool, a recent character who has become very popular lately?
Anyway, the problem is that without trademark protection, the large simply get larger by putting their marketing and publishing muscle behind someone else’s creations, effectively blocking any new entrants from the marketplace.
OK, so they are 70 years old now almost, so they probably should be public domain.
They should absolutely be public domain.
Nobody should be beholden to the people who informed the media they grew up with. A generation (20 years) is the absolute maximum that copyright should even contemplate claiming, and in a digital world it should be around a fourth of that.
The maximalist just encourage people to ignore it altogether.
ASHsays:
Good god, this post can’t possibly be serious. What if they did an entire film without permission and turned a profit from it? Well, duh–it would be massive copyright infringement. (It would be infringement even without the profit, but never mind that.) If that’s not staggeringly obvious right from the start, then you’ve banged your head on the sink this morning.
PRMan–I’m afraid you’ve banged your head on the sink. Trademarks have virtually nothing to do with this. And you don’t have to “file for trademarks”–you just put a TM next to it, while establishing your ownership in the marketplace. The vast majority of trademarks are not filed/registered.
Ummm… actually all Trademarks, for them to be legal, must be made at the Trademark and Patent Office. The only thing that doesn’t have to be filed to be legal is a Copyright, since it arises at the creation of the work.
Anonymous Cowardsays:
Re: Re: Trademarks
Ummm…no. That’s a “registered” trademark (the “R” in a circle), not a regular trademark (the TM symbol).
You don’t need to file anything for a regular trademark to be “legal”, since regular trademarks are state law, and the Trademark & Patent Office is federal.
What if they did an entire film without permission and turned a profit from it?
That would be great, actually. Good on them. What’s wrong with it?
If that’s not staggeringly obvious right from the start, then you’ve banged your head on the sink this morning.
Nope, not at all. I’ve actually thought it through in tremendous detail. Why should it be considered bad if it does no harm whatsoever to the original? All it does is increase the value of the original brand.
It’s actually very interesting… I remember back in the day when the books were very popular. Children and Adults actually wrote continuations of Middle Earth stories themselves. This is just another way to pay homage to a great author/historian. 🙂
If movie houses try to squelch this one, it would be a sad day to see, and just confirms the greed of Hollywood.
RDsays:
Remember...
Remember kids…
COPYRIGHT IS ABSOLUTE!
No one can make, reference, think or even SPEAK about your creation!
COPYRIGHT IS ABSOLUTE!
ANYTHING, no matter how trivial, even REMOTELY releated to, or referencing the copyrighted work IS ILLEGAL!!
COPYRIGHT IS ABSOLUTE!
THERE IS NO FAIR USE! THERE IS NO DERIVATIVE WORK!
COPYRIGHT IS ABSOLUTE!
Remember….this is how they think.
Anonymous Cowardsays:
It wouldn’t take away from or harm Tolkien or Jackson’s work.
This specific fanfilm? Probably not. In general?
Here are some sentiments that bother me a little bit:
1) There is no such thing as bad attention.
2) All attention raises the value of the original product and never dilutes it.
3) Exclusivity almost always hurts consumers: more freedom means more choice, and more choice is always better for consumers.
4) It is the content creator’s responsibility to market their own product and make sure it is always the best product. If someone else can market a product better than you can, even if you developed the product originally, they deserve to profit from that and you don’t.
Here, the “little guy” (a bunch of volunteers) are getting a lot of extra attention by capitalizing on a well-established property created by somebody else. Would anybody care if this were “King of the Necklaces: the Hunt for Kodos?” If it were high-quality enough, maybe. Worked for Dr. Horrible (kinda – Dr. Horrible had recognized stars, a wildly popular director, and likely a more substantial budget).
But you can’t argue that these fans are not getting a lot of attention because the material is based on LOTR. The big guys are also getting a little attention, and it’s probable that the content in the fanfilm isn’t objectionable, so it’s a win for everybody and the big guys are, as reasonable people often do, laying off.
I assume, however, if this ended with a nicely filmed scene where Sam and Frodo finally consummate their relationship, the rightsholders wouldn’t be so supportive.
But as PRMan pointed out, above, the same copyright law applies in reverse, too.
Replace “a bunch of volunteer fans on a shoestring budget” with “Paramount Pictures on an A-list budget.” Should Sony, or Universal, or Paramount be allowed to make and profit from a Lord of the Rings sequel? Should Peter Jackson have been able to make the movies he did without negotiating for the rights? Would New Line have put up hundreds of millions of dollars to make its movies knowing that anybody else – including a big studio – could make a Lord of the Rings trilogy and put it out at the same time as the New Line films?
We have already seen cases where multiple films come out in close proximity that have basically the same plot. If only one of Deep Impact and Armageddon had come out, would either movie have made more or less money? What about Dante’s Peak and Volcano? Reviews of these films inevitably compare them, rather than focusing on the films independently. The buzz I heard among friends and on the Internet when these came out wasn’t “is Volcano a good movie?” It was “is Volcano a better movie than Dante’s Peak?”
Novelty and exclusivity have value to audiences. They are scarce goods.
Every time a public domain property gets remade into a big-budget movie, there are a bunch of low-budget adaptations that hit the street (usually DVD) at the same time, hoping to capitalize on the popularity of the big-budget tentpole. I recall seeing a cheaply animated version of the Mulan story on Blockbuster shelves when Disney released their big-budget movie. When Spielberg put out his new War of the Worlds, no less than two direct-to-video adaptations came out at the same time. What if these adaptations hadn’t been direct-to-video? What if they had serious backing?
Maybe they would split the War of the Worlds pie evenly. Maybe having multiple adaptations might grow the pie a little bit, so each got 60% of what an individual film would have gotten. Maybe people would just be confused and overloaded and go see something else entirely. Maybe each individual movie would have been crappier than a single tentpole with exclusivity, because who wants to invest a lot of money when you know that you’re now competing for a shrinking fraction of an audience’s ability to consume War of the Worlds-related content?
The point is that, while the answer to that question might be entirely obvious to some, it’s not at all obvious to me. If you have some non-anecdotal data to answer the question as to which one of these actually happens, I’d love to see it. But it’s a complex question either way.
“But you can’t argue that these fans are not getting a lot of attention because the material is based on LOTR.”
True, but this is not a problem. What we have here is a clearly talented set of people working with virtually no money to create something truly stunning. That the basis for their work happened to be an existing property does not detract from that, and I can see no problem with their use of that. It’s like the Cops/Star Wars themed Troops or the Batman/Alien/Predator mashup Batman:Dead End. Entertaining for fans of the original properties while also a great advertisement for the talents of those involved.
Hopefully, this will lead to further work from the same guys with bigger budgets. Maybe they’ll also hit it big like a certain director who got his start by directing an ultra low-budget horror comedy at weekends with his friends. That would be Peter Jackson with his movie Bad Taste. An original property, true, but it is much harder to get noticed with low budget original work in this age where every idiot with a digital movie camera thinks he can make a good movie.
“What if these adaptations hadn’t been direct-to-video? What if they had serious backing?”
But they didn’t. In fact, it would have clearly been commercial suicide to bring out another high-budget adaptation of the same story at the same time. So, it would never have happened. Commercial sense was to make a low budget movie that could piggyback on the higher profile one. This was such a successful strategy that one of the low budget movies (by The Asylum) was successful enough to spawn a sequel. Sales of the original novel also soared, as well as H.G. Wells’ other books. There were enough slices of that particular pie for everyone.
But you can’t argue that these fans are not getting a lot of attention because the material is based on LOTR
Why should that matter?
You are getting attention because of the internet (created by others), connected via an ISP (built by others) posting on this site (created by me) discussing a movie (created by others). Thus, you are equally as guilty of doing anything wrong that they did.
Replace “a bunch of volunteer fans on a shoestring budget” with “Paramount Pictures on an A-list budget.” Should Sony, or Universal, or Paramount be allowed to make and profit from a Lord of the Rings sequel? Should Peter Jackson have been able to make the movies he did without negotiating for the rights? Would New Line have put up hundreds of millions of dollars to make its movies knowing that anybody else – including a big studio – could make a Lord of the Rings trilogy and put it out at the same time as the New Line films?
There’s a logical contradiction in your statement.
(A) You assume that it’s “bad” if two big studios make a movie based on the same story. In this case, you assume that it’s “bad” if Paramount makes a movie after knowing that New Line is making it.
(B) Your implicit assumption is that this bad for New Line, because it loses some of its marketing power.
(C) You seem to totally ignore that the same is true of Paramount. i.e., Because they’re coming out with a movie in direct competition with New Line’s, they face the same problem.
(D) So… why would you assume this would happen. Why would Paramount *purposely* choose to make a movie with a smaller market?
Novelty and exclusivity have value to audiences. They are scarce goods
Wait, are you suggesting that a film studio should be able to declare exclusivity over the idea of a volcano film? That’s quite a stretch…
But, you’re wrong. Novelty and exclusivity have value to STUDIOS, not audiences. Audiences were BETTER OFF because of the choice, and the comparisons. It made it easier to know which films to go see. That’s a GOOD THING because it encourages greater quality in movies.
Every time a public domain property gets remade into a big-budget movie, there are a bunch of low-budget adaptations that hit the street (usually DVD) at the same time, hoping to capitalize on the popularity of the big-budget tentpole. I recall seeing a cheaply animated version of the Mulan story on Blockbuster shelves when Disney released their big-budget movie. When Spielberg put out his new War of the Worlds, no less than two direct-to-video adaptations came out at the same time. What if these adaptations hadn’t been direct-to-video? What if they had serious backing?
That would be a good thing. It would inspire both to do better.
Also, you assume (totally incorrectly) that it would hurt the audience. In many cases it would grow it. I know when I see a good movie, I’m often interested in seeing other movies about similar things. So if two movies came out based on the same story at the same time, I’d be quite interested in seeing both. Who wouldn’t?
If you have some non-anecdotal data to answer the question as to which one of these actually happens, I’d love to see it. But it’s a complex question either way.
There’s plenty of data on things like public domain documents coming out at the same time — like the 9/11 report. That’s a good starting point, suggesting that this isn’t a problem at all.
Anonymous Cowardsays:
“So why should these fans even need to gain permission to create such a movie?”
Simple common courtesy to avoid future problems that may arise.
BTW, for once I do agree with EFF that whether or not this is a “fair use” is a difficult question to answer.
Eric Mooresays:
This isn't the first fan film to get okayed
Anyone remember the “Troops” aka Stormtrooper Cops vid?
There is no copyright infringement if a piece of work can be proven to be SATIRE. That was proven in the courts, at least in the USA, decades ago. The history of satire goes back millennia.
There is no copyright infringement if a piece of work can be proven to be SATIRE. That was proven in the courts, at least in the USA, decades ago. The history of satire goes back millennia.
Actually, it’s parody that has a fair use exception. Not satire. The fact that it’s one, not both, is rather ridiculous, but it’s the way things are right now.
Ssays:
Wow. I am a major fan of those movies, and this does look amazing.
This kind of thing is only going to bring more fans to the original works. It’s not like the late J.R.R. Tolkien or Peter Jackson is going to starve without profiting from this. I am a believer in copyrights but common sense is a good thing, too.
Cixelsidsays:
Sorta goes against big media’s claim that “If you don’t give us monopoly and bags of money the quality of entertainment will suffer”, doesn’t it?
Wesley Parishsays:
Taolkien's wishes?
JRRT himself indicated at least on one occasion that he wanted other hands to take up the story and embellish it – and IIRC, in the essay Leaf and Tree attached to Leaf by Niggle, he mentions the way folk-tales/fairy tales developed – handed down generation by generation – as a positive thing.
I think he would be positively delighted – as long as the characters and the plot aren’t travesties. He was grim death on that.
Dusansays:
...
So why should these fans even need to gain permission to create such a movie? Because, some people are hungry for money even though they are rich, and they want to sqeez money of the fans if they can. SOBs
[T]he original question does remain: what if people made such a creative film without reaching such an agreement — or without promising to be totally non-commercial? Would that be so wrong? It wouldn’t take away from or harm Tolkien or Jackson’s work. It would only enhance it. So why should these fans even need to gain permission to create such a movie?
Yes, it would most certainly “be so wrong”, at least under current copyright law. If you don’t like the law, write to your Congressional representatives and encourage change. But one can’t just simply choose when to observe the law and when not to, especially not based on something as subjective as the “quality” of a fan effort.
Please don’t forget about the Ace incident in the 1960’s where a “technicality” in U.S. copyright law allowed Ace Books to publish their own copies of The Lord of the Rings without paying a cent to Tolkien, the living author at the time! This was eventually settled fairly amicably, but the point is: copyright law is in place for a reason. It is not simply to protect the “quality” of a fictive universe, but to protect the financial value of it to its creators. Tolkien worked for some twenty years on The Lord of the Rings, after all!
Now, again, if you would argue that his children, grandchildren, publishers, and so on, don’t deserve financial consideration for his work, that’s a fine and perfectly valid opinion; but then you must take it up with your legislative representatives. Only they can change copyright law (as they have several times in the past). For an example of how things can go wrong when copyright isn’t enforced, you have only to turn to Russia, where Tolkien’s works have been “extended” by new (fan) novels. Is this really what we want? Speaking for myself, no.
P.S. To Wesley, I think you are taking the “other hands” comment out of context. I don’t think it should be regarded as the encouragement you suggest it is. Epistolary evidence is tricky enough, but Tolkien was speaking in a much more hypothetical sense here, at a earlier stage in his career, and with a particular agenda in mind. Caveat lector!
The infamous Joesays:
Re: Copyright and other matters
For an example of how things can go wrong when copyright isn’t enforced, you have only to turn to Russia, where Tolkien’s works have been “extended” by new (fan) novels. Is this really what we want?
Well, wouldn’t the free market fix that for us? I mean, if the fan book is of good quality then it will most likely be popular and spark interest in the originals as well as giving attention to the talented writer who wrote the fan book.
If it is horrible it will most likely never be heard of again. Unless the fan is trying to pass it off as written by Tolkien, it will just make the originals all the more attractive: If you want a good LOTR book, there is no substitute for the original.
Back to the original topic: I see no logical reason why these talented fans should not be able to profit off this. I am a strong supporter of the free market, and IP laws almost always directly contradict the idea of a free market. If Tolkien Enterprises isn’t making a prequel, then what’s the problem with these fans making money off of it? Just because someone else made up the characters? Even if they *are* making a prequel, if it’s not as good and can’t compete with a $3,000 budget fan flick then Tolkien Enterprises doesn’t *deserve* to make any money.
The idea that if someone makes money on an offshoot of my word then I should also get paid even though I did *zero* additional creation/work is ridiculous. No where else in any aspect of our society does that apply. I’m sure Tolkien’s book was the first ever fantasy story with elves and hobbits, right? No? You mean he took someone else’s idea and made something more popular?
As for getting the law changed– you know damn well that without plenty of money to throw at lawmakers that the IP laws in this country will never make sense. The *only* way we the people have now is to ignore the bad law until it is irrelevant.
Anonymous Cowardsays:
Re: Re: Copyright and other matters
Man, I didn’t read past “wouldn’t the free market fix that for us” because, you know what, the free market isn’t sentient and isn’t infallible … look at the current economic havoc wrought by following the whims of a free (deregulated) market.
Economics should not dictate law because money has no morality. If we truly thought that the market should regulate our actions, then we wouldn’t outlaw the selling of children.
Please don’t forget about the Ace incident in the 1960’s where a “technicality” in U.S. copyright law allowed Ace Books to publish their own copies of The Lord of the Rings without paying a cent to Tolkien, the living author at the time! This was eventually settled fairly amicably, but the point is: copyright law is in place for a reason. It is not simply to protect the “quality” of a fictive universe, but to protect the financial value of it to its creators. Tolkien worked for some twenty years on The Lord of the Rings, after all!
That’s a bit of twisting of the purpose of copyright law. It’s never been about protecting. It’s always been about incentives…
Now, again, if you would argue that his children, grandchildren, publishers, and so on, don’t deserve financial consideration for his work, that’s a fine and perfectly valid opinion; but then you must take it up with your legislative representatives.
I have to say I find this argument wholly unconvincing. I write about things here because it inspire thought and discussion that often does influence what others say to their elected reps. To say that we shouldn’t say anything publicly and should ONLY write our reps is wrong. You influence change by speaking out publicly. So that’s what we do.
For an example of how things can go wrong when copyright isn’t enforced, you have only to turn to Russia, where Tolkien’s works have been “extended” by new (fan) novels. Is this really what we want? Speaking for myself, no.
Wait, what’s wrong with that? That sounds great to me. Why does it offend you? It doesn’t impact you at all. You don’t have to read those extended books. So you’re not harmed at all. Only those who are interested in reading them are able to.
I can’t see how that’s a problem at all.
Petréa Mitchellsays:
Another example...
…is Star Trek: New Voyages, which is made by fans with the knowledge of Paramount. Last year, it was nominated for a Nebula Award (the second biggest science fiction awards after the Hugos), but arguments broke out about whether it met the Nebula requirement of “professionally produced”… and if it did qualify as “professional” and not a “fan” production, did that mean Paramount was required to shut it down?
kathy stavrousays:
lotr prequel
Because it’s polite and respectful to do so?
E-Rockersays:
It seems that a lot of comments are being made based on the assumption that this is going to be a great movie; all from a 2 minute trailer. And there seems to be a rather quick jump that since this is going to be a great movie, it is only going to add value to the original franchise and should be allowed.
I can see, from Tolkien Enterprises’ point of view, why they insisted on non-commercial use. Imagine if people went to see this movie at a theater, paid $10, and hated it (these people will exist). That doesn’t only reflect poorly on the film, but the entire Lord of the Rings brand. While this negative fallout can surely exist even in the not-for-profit world, I believe viewers who are disappointed with this movie will have an easier time getting over it if they didn’t pay.
At the same time, had they not contacted Tolkien Enterprises, who judges what is/isn’t too far a departure from what “should” be happening in the world of Middle Earth? The example of Frodo and Sam getting it on in a fan-made sequel was given in an earlier comment. Given the lines from, I believe the first movie (Sam: “I love you Mr. Frodo”, Frodo: “Not now Sam.”), would it be such a departure to film a fan-made Brokeback Mount Doom?
I believe claiming “they should have been allowed to do it anyways because it’s obviously going to add value to all parties involved” is a bit of a cop out.
The fact of the matter is is that this movie is piggy backing on the success of Lord of the Rings. Whether it will or will not create value for the overall brand is yet to be determined. If for nothing else, then out of respect for the original content creators, some form of agreement should be reached where the parties are content.
In this case, I believe the film makers proceeded properly. Had this same release been done without consent of Tolkein Enterprises, I would say it is not their place to be using these characters and this world for their own benefit. There are plenty of ways these film makers will be compensated for their work aside from monetary values.
can see, from Tolkien Enterprises’ point of view, why they insisted on non-commercial use. Imagine if people went to see this movie at a theater, paid $10, and hated it (these people will exist). That doesn’t only reflect poorly on the film, but the entire Lord of the Rings brand. While this negative fallout can surely exist even in the not-for-profit world, I believe viewers who are disappointed with this movie will have an easier time getting over it if they didn’t pay.
Why? As long as it is clearly presented as fan created (which it is), why would it harm the legit productions? It’s quite clear that it has nothing to do with them, so it wouldn’t harm them at all.
At the same time, had they not contacted Tolkien Enterprises, who judges what is/isn’t too far a departure from what “should” be happening in the world of Middle Earth? The example of Frodo and Sam getting it on in a fan-made sequel was given in an earlier comment. Given the lines from, I believe the first movie (Sam: “I love you Mr. Frodo”, Frodo: “Not now Sam.”), would it be such a departure to film a fan-made Brokeback Mount Doom?
Again, why is that a problem?
I believe claiming “they should have been allowed to do it anyways because it’s obviously going to add value to all parties involved” is a bit of a cop out.
Why?
The fact of the matter is is that this movie is piggy backing on the success of Lord of the Rings. Whether it will or will not create value for the overall brand is yet to be determined. If for nothing else, then out of respect for the original content creators, some form of agreement should be reached where the parties are content.
What’s wrong with piggy backing on the success of LOTR? EVERYTHING piggy backs on the success of something else. Do you know how many stories LOTR was influenced by? Should Tolkien needed to get permission from all of them first?
Jsays:
Fair use
Fair use only applies to use of copyrighted material for commentary or parody. Chad Vader and Spaceballs are OK. This movie is neither. It is technically not in a legal gray area. Look here: http://www.templetons.com/brad/copymyths.html
“U.S. Copyright law is quite explicit that… works based or derived from another copyrighted work… is the exclusive province of the owner of the original work. This is true even though the making of these new works is a highly creative process. If you write a story using settings or characters from somebody else’s work, you need that author’s permission.
Yes, that means almost all “fan fiction” is arguably a copyright violation. If you want to publish a story about Jim Kirk and Mr. Spock, you need Paramount’s permission, plain and simple. Now, as it turns out, many, but not all holders of popular copyrights turn a blind eye to “fan fiction” or even subtly encourage it because it helps them. Make no mistake, however, that it is entirely up to them whether to do that.”
There are two primary reasons owners do not sue over fan fiction. 1. They think they are being helped by the interest created by fan films. 2. Even though unauthorized fan films violate copyright law, if they have no commercial value damages may be zero. Fan fiction is technically illegal, but the commercial value is a “gray area” that would need to be litigated over for the plantiff to obtain damages. If they were particularly vindictive, they could push for criminal charges in some cases. “USA commercial copyright violation involving more than 10 copies and value over $2500 was made a felony.”
Tom Blacksays:
wah wah wah
It’s so funny to me what you guys choose to cry about. I keep hearing how stupid Hollywood is for copying and remaking existing films but when a fanboy does it it’s WONDERFUL! What a crock. Fanfilms are a joke. there’s very little art involved despite a high level of craft as is displayed in the attached trailer. The real challenge is in coming up with your own property and figuring out how to get people to it.
Anonymous Cowardsays:
So where is this going to be released? Where can I grab a torrent?
Watch the trailer again and note the web address provided at the end.
zcatsays:
a couple of random thoughts
The film isn’t a ‘copy’ of anything. Sure it uses the same characters and the same setting, but the film itself is a complete new work. It’s not using ‘samples’ or ‘outtakes’ of Wingnut’s film. It’s not a remake of Wingnut’s film. It’s a whole new original work. Why is this even considered copyright infringement?
Also, on the assumption that it were somehow an infringing copy why is it only OK if nobody makes any money out of it? Surely any ‘harm’ to the original is the same, if not greater, given that anyone can get this film for free?
FWIW, I researched this heavily for my book about fan films, Homemade Hollywood, which just came out. For the studios, efforts like these are the equivalent of the 12-year-old next door taking your Maserati out for a joyride; even if it comes back without a scratch, you’re still going to be furious–but what can they really do?
In most cases, rights holders have ignored the growing popularity of fan films, sometimes willingly since they are generally tribute films that provide a no-cost way to keep fans interested in a franchise during times of drought (witness the rise of high-profile Star Trek fan productions in recent years).
At the same time, studios are in business to make money, and prosecuting a fan film case is a poor financial move all around. First, going after your fans is bad PR (ask Lars from Metallica). More importantly, however, the cost of mounting a case against a typical fan filmmaker is far more than you could ever hope to gain from a court decision or settlement.
As an aside, coincidence or not, in recent years, most studios that have used cease and desist letters to shut down fan films that “compete” with their feature films have produced lousy movies. Fox canned a UK-based Max Payne fan flick in spring, 2008, and look how awful that feature turned out to be. Similarly, the folks behind the upcoming GI Joe movie have been shutting down related fan films for YEARS–and now look at the huge negative reaction across the web to the first GI Joe trailer. When a studio is afraid of a fan film, it seems to be indicative of a weak property.
Nonetheless, studios are going to have to find better ways deal with fan films. Lucasfilm was pretty canny in “accepting” them by creating its annual fan film contest–by creating strict entry rules, it created a way to control the content going into fan productions without having to send lawyers after every teenager with a video camera.
One of the things I talk about in the book–and on my daily fan film news blog, fancinematoday.com–is that the studios should try to cultivate these amateur filmmakers, not merely to help spread the word by creating flicks about fledgling properties, but also as a revenue source–sell ’em permission, official sound effects, visual effect clips to be edited into a fan film, and so forth.
With the technological point of entry so low now that anyone with a computer and a camera can “make a movie,” it’s a next step waiting to happen. It might shave the “outlaw” feel off an otherwise semi-pro production like “Hunt for Gollum,” but officially ratified fan films are probably the next big step for the hobby.
Clive Young
Joe Kingsays:
Re: Yes, it infringes; no, it doesn't matter
Thank you for that entry, Clive. One of the best comments posted on TD in quite awhile. I hope that Hollywood and the studios can continue to embrace more of their fans rather than reject it, since everyone can really win, helping to fill in the gaps between major releases.
Jasonsays:
Re: Yes, it infringes; no, it doesn't matter
“Yes, it infringes”
Bold assertion w/no support given other than b/c I wrote a book about it. Unfortunately we cant even Look Inside This Book on Amazon to see if you have a decent argument in your book either.
Oh, yes! Fantastic post! Full of grandstanding crap.
Anonymous Cowardsays:
Re: Re: Yes, it infringes; no, it doesn't matter
If you knew anything about copyright law, you’d understand that the assertion that it infringes is not open for debate … and so no need to support it. Get educated before you start insulting others based on your ignorance.
Nonetheless, studios are going to have to find better ways deal with fan films. Lucasfilm was pretty canny in “accepting” them by creating its annual fan film contest–by creating strict entry rules, it created a way to control the content going into fan productions without having to send lawyers after every teenager with a video camera.
Meh. Lucas recognized the law as it was written, and he should get credit for doing at least that (the *AAs could have taken a lesson from him.) However, he just reinforces current law. Parodies are OK (Thanks, Uncle George! Only they always were.) If you try to make a serious drama drawing from the SW universe, you’re risking some serious legal action.
I’m disappointed in you, Clive. I would have expected you to realize the problems with a model that allows you to poke fun, but not tribute.
#47 – Read the book, and you’ll discover we completely agree.
While the Lucasfilm contest DOES allow dramatic fan films now (it changed its tune two years ago), you’re absolutely right that only parody and documentaries were initially allowed. That’s why I put “accepted” in quotes above–because the contest was spun as Lucas was “allowing” those kinds of movies to be made, when in fact, by law, he had no choice.
From a corporate IP point of view, it was a brilliant move on their part, because by creating a contest where fans could win money, a trophy and the possibility that Lucas would see their movie, Lucasfilm virtually guaranteed that any fan filmmaker creating a Star Wars flick would follow the rules. After all, if you’re going to go through all the trouble to make a movie, why wouldn’t you at least ensure that it could be entered in the contest?
As a result, Lucasfilm exerted a lot of control over SW fan film content without having to sue anyone. Painting such a move as a gift to the fans was smarmy; on the other hand, it’s easy to see WHY they chose that route initially:
Most of the company’s SW-related projects take a few years to be created, regardless of whether they’re movies, TV series, novels, video games, etc. Let’s say a new game is being plotted by one part of the company when a fan film with a similar plot is coincidentally submitted to the other part of Lucasfilm running the contest. In theory, the company opens itself up to a plagiarism suit when the game comes out, as the filmmaker could say Lucasfilm had seen his movie, even though it was unlikely that anyone involved with the game would see the fan film entry. In this light, now allowing dramatic fan films was a basic–and understandable–CYA move.
That said, the contest now allows dramatic efforts, and to date, Lucasfilm has only ever sent out one cease & desist letter to a dramatic fan film–1999’s “The Dark Redemption.” The contest started two years later, presumably after Lucasfilm had given in to the fact that Star Wars fan films just weren’t going away.
Steven Merchantsays:
reality check time
“but still looks amazingly professional… nearly the equivalent of a high budget production on a shoestring budget.”
Gimme a break. It’s got a cast of about 8, ripped off music, ripped off shots (every wide shot is stolen), no visual effects, terrible sound, and, oh… IT’S SHOT ON VIDEO. It doesn’t look amazingly professional. It doesn’t even look amazingly amateur.
Come on, you shoot everything at medium close ups and cut everything 6 frames long, then intercut it all with material shot by Peter Jackson, lay it over some dramatic music, and of course it’ll look halfway decent. But I have no doubt the final product will have absolutely no entertainment or artistic value.
Gimme a break. It’s got a cast of about 8, ripped off music, ripped off shots (every wide shot is stolen), no visual effects, terrible sound, and, oh… IT’S SHOT ON VIDEO. It doesn’t look amazingly professional. It doesn’t even look amazingly amateur.
Wow. Don’t know what to say other than that I simply disagree. I think it’s amazingly professional. Are you suggesting you could do better? That would be interesting to see.
JGMsays:
Re: reality check time
Gimme a break. It’s got a cast of about 8, ripped off music, ripped off shots (every wide shot is stolen), no visual effects,
If you watch the visual effects reel you’ll see there are quite a few effects, and, although they don’t come out and say it, it appears that no shot was actually taken from the film verbatim (it appears to me that in a few places they may have composited elements from the original into new scenes). I wondered about the music; given the creators’ agreement with the Tolkien folks this would seem to be the main place where there could be a legitimate copyright beef.
And, you do realize that most TV dramas and quite a few features are now “shot on video”, don’t you?
Fan fiction is actually remarkably popular. No one worries about it as long as it is not sold for profit. If you want to sell it, then you require permission of the living author. If the author is not living, then you have to ask the owners of the copyright. When the copyright runs out, you can do as you wish.
For the non-profit fan fiction the usual story is that: (A) It is severely frowned upon by fans because it is typically terrible. (B) Stepping on the territory of a living author’s own work is outright condemned by fans. In this case the fan is smart to contact the author and consult with him about the territory of the fan story. In the case of “The Hunt for Gollum”, apparently the owners of the copyright saw no conflict with any other known elaborations upon Tolkien’s work.
Essentially, by law and by courtesy, the copyright holder has the last word. Satire, however, is the sole exception. Typically, countries have no laws against satire of copyrighted work.
JP_Fifesays:
The movie does look like it would be quite interesting, but why is the BBC trying to muscle in on it by having their logo on the top left hand corner? The BBC didn’t make it.
JGMsays:
Doesn't scale though
Once again, we’re seeing how modern technology allows people to create nearly the equivalent of a high budget production on a shoestring budget.
Well, modern technology and a small army of skilled folks willing to work for free. Check the “visual effects” reel to see just how many artists donated their time to this, for some combination of personal enjoyment and exposure. (It would be interesting to calculate how much this production would have cost had the participants been paid “normal” wages for the type of work involved).
So while what you say is true for this particular project and the similar Trek fan efforts, it doesn’t scale up very well: at some point people are going to expect to get paid for their work, particularly when the creators start to make some money from it.
Anonymous Cowardsays:
Where the devil can you download the thing? I can only find the trailer.
Let’s face it, the intention of “copyright” is ethical and valid. However, it has been massively distorted by the predators-that-be (as they always do). Think for a second. What is the fundamental nature of “copyright”? Answer: It is a common/standard agreement between seller and buyer. In effect, the author says “I will sell you one copy of this book/movie/whatever on the condition that you do not make additional copies”. Thus it is simply a contract, and is reasonable because the author created the work.
However, it is utterly absurd to imagine any author could have an reasonable right to claim “the names or places in my story are proprietary”. That’s absurd. Just imagine a book with characters “Bill” and “Fred”. So, nobody for the rest of time can write stories that contain characters “Bill” and “Fred”? Give me a break. Ditto for “Chicago”, or for “zombies”, or whatever.
Therefore, it is absurd to imagine that just because you wrote a story with “Dingus McGee” that takes place on “Mars” that nobody else could create a completely new story that contains those elements. Of course the predators-that-be who claim we are their slaves, and must follow whatever insane rules they choose to concoct (at the behest of some lobbyist), is absurdity incarnate.
Therefore, ethically speaking, I think the issue is simple. This wonderful film in no way abuses the authors or his decendants.
Comments on “Lord Of The Rings Fan Film To Debut… Raising Some Copyright Questions”
I can't wait
This looks amazing.
The whole ‘derivative works’ concept is complete BS. That’s not how the world worked before there were big media organizations around to claim otherwise. My original story is forfeit because it uses *elements* from your original story? I suppose yours sprang from your forehead like Athena (oops, whom do I pay for that?)
Re: I can't wait
If it’s so easy to create something like Lord of the Rings, why haven’t you done it?
Re: I can't wait
just a point, Athena isnt copyrighted by anyone as it was an old religion and as such cannot be copyrighted 😛
It
Waitaminute
A couple observations:
Studios seem to have (over the past ten years or so) realized that it’s counterproductive to sue fans for remixing, reusing, etc. As long as it’s done ‘for no profit.’ (Although there’s many understandings of what that actually means, even within the fanfilm community.)
The reason (or one of the reasons) that the US began to honor foreign copyrights was that American publishers found it difficult to compete with cheaper publications that were not covered by copyright here.
So, are these two viewpoints bound to run into each other as fanfilms get better? (and judging from the trailer, this one looks very good indeed.)
It's not the copyrights...
It’s the Trademarks on the characters that is the problem.
This film is 100% copyright the fans that made it.*
The trademarks belong to Tolkien Enterprises, except for any new characters that are created for this movie. They would belong to the creators (if they filed for them).
Lucasfilm, DC, Marvel and apparently Tolkien realize that as long as you have fans paying homage to your material in a non-profit fashion, that it’s cool.
“what if people made such a creative film without reaching such an agreement — or without promising to be totally non-commercial? Would that be so wrong?”
If Time magazine started publishing Superman and Spider-Man comics without paying anything for the characters, yes, that would be a problem. OK, so they are 70 years old now almost, so they probably should be public domain. Fine, what about Deadpool, a recent character who has become very popular lately?
Anyway, the problem is that without trademark protection, the large simply get larger by putting their marketing and publishing muscle behind someone else’s creations, effectively blocking any new entrants from the marketplace.
Re: It's not the copyrights...
OK, so they are 70 years old now almost, so they probably should be public domain.
They should absolutely be public domain.
Nobody should be beholden to the people who informed the media they grew up with. A generation (20 years) is the absolute maximum that copyright should even contemplate claiming, and in a digital world it should be around a fourth of that.
The maximalist just encourage people to ignore it altogether.
Good god, this post can’t possibly be serious. What if they did an entire film without permission and turned a profit from it? Well, duh–it would be massive copyright infringement. (It would be infringement even without the profit, but never mind that.) If that’s not staggeringly obvious right from the start, then you’ve banged your head on the sink this morning.
PRMan–I’m afraid you’ve banged your head on the sink. Trademarks have virtually nothing to do with this. And you don’t have to “file for trademarks”–you just put a TM next to it, while establishing your ownership in the marketplace. The vast majority of trademarks are not filed/registered.
Re: Trademarks
Ummm… actually all Trademarks, for them to be legal, must be made at the Trademark and Patent Office. The only thing that doesn’t have to be filed to be legal is a Copyright, since it arises at the creation of the work.
Re: Re: Trademarks
Ummm…no. That’s a “registered” trademark (the “R” in a circle), not a regular trademark (the TM symbol).
You don’t need to file anything for a regular trademark to be “legal”, since regular trademarks are state law, and the Trademark & Patent Office is federal.
Re: Re:
Good god, this post can’t possibly be serious.
100% serious, actually.
What if they did an entire film without permission and turned a profit from it?
That would be great, actually. Good on them. What’s wrong with it?
If that’s not staggeringly obvious right from the start, then you’ve banged your head on the sink this morning.
Nope, not at all. I’ve actually thought it through in tremendous detail. Why should it be considered bad if it does no harm whatsoever to the original? All it does is increase the value of the original brand.
Derivative Works
It’s actually very interesting… I remember back in the day when the books were very popular. Children and Adults actually wrote continuations of Middle Earth stories themselves. This is just another way to pay homage to a great author/historian. 🙂
If movie houses try to squelch this one, it would be a sad day to see, and just confirms the greed of Hollywood.
Remember...
Remember kids…
COPYRIGHT IS ABSOLUTE!
No one can make, reference, think or even SPEAK about your creation!
COPYRIGHT IS ABSOLUTE!
ANYTHING, no matter how trivial, even REMOTELY releated to, or referencing the copyrighted work IS ILLEGAL!!
COPYRIGHT IS ABSOLUTE!
THERE IS NO FAIR USE! THERE IS NO DERIVATIVE WORK!
COPYRIGHT IS ABSOLUTE!
Remember….this is how they think.
It wouldn’t take away from or harm Tolkien or Jackson’s work.
This specific fanfilm? Probably not. In general?
Here are some sentiments that bother me a little bit:
1) There is no such thing as bad attention.
2) All attention raises the value of the original product and never dilutes it.
3) Exclusivity almost always hurts consumers: more freedom means more choice, and more choice is always better for consumers.
4) It is the content creator’s responsibility to market their own product and make sure it is always the best product. If someone else can market a product better than you can, even if you developed the product originally, they deserve to profit from that and you don’t.
Here, the “little guy” (a bunch of volunteers) are getting a lot of extra attention by capitalizing on a well-established property created by somebody else. Would anybody care if this were “King of the Necklaces: the Hunt for Kodos?” If it were high-quality enough, maybe. Worked for Dr. Horrible (kinda – Dr. Horrible had recognized stars, a wildly popular director, and likely a more substantial budget).
But you can’t argue that these fans are not getting a lot of attention because the material is based on LOTR. The big guys are also getting a little attention, and it’s probable that the content in the fanfilm isn’t objectionable, so it’s a win for everybody and the big guys are, as reasonable people often do, laying off.
I assume, however, if this ended with a nicely filmed scene where Sam and Frodo finally consummate their relationship, the rightsholders wouldn’t be so supportive.
But as PRMan pointed out, above, the same copyright law applies in reverse, too.
Replace “a bunch of volunteer fans on a shoestring budget” with “Paramount Pictures on an A-list budget.” Should Sony, or Universal, or Paramount be allowed to make and profit from a Lord of the Rings sequel? Should Peter Jackson have been able to make the movies he did without negotiating for the rights? Would New Line have put up hundreds of millions of dollars to make its movies knowing that anybody else – including a big studio – could make a Lord of the Rings trilogy and put it out at the same time as the New Line films?
We have already seen cases where multiple films come out in close proximity that have basically the same plot. If only one of Deep Impact and Armageddon had come out, would either movie have made more or less money? What about Dante’s Peak and Volcano? Reviews of these films inevitably compare them, rather than focusing on the films independently. The buzz I heard among friends and on the Internet when these came out wasn’t “is Volcano a good movie?” It was “is Volcano a better movie than Dante’s Peak?”
Novelty and exclusivity have value to audiences. They are scarce goods.
Every time a public domain property gets remade into a big-budget movie, there are a bunch of low-budget adaptations that hit the street (usually DVD) at the same time, hoping to capitalize on the popularity of the big-budget tentpole. I recall seeing a cheaply animated version of the Mulan story on Blockbuster shelves when Disney released their big-budget movie. When Spielberg put out his new War of the Worlds, no less than two direct-to-video adaptations came out at the same time. What if these adaptations hadn’t been direct-to-video? What if they had serious backing?
Maybe they would split the War of the Worlds pie evenly. Maybe having multiple adaptations might grow the pie a little bit, so each got 60% of what an individual film would have gotten. Maybe people would just be confused and overloaded and go see something else entirely. Maybe each individual movie would have been crappier than a single tentpole with exclusivity, because who wants to invest a lot of money when you know that you’re now competing for a shrinking fraction of an audience’s ability to consume War of the Worlds-related content?
The point is that, while the answer to that question might be entirely obvious to some, it’s not at all obvious to me. If you have some non-anecdotal data to answer the question as to which one of these actually happens, I’d love to see it. But it’s a complex question either way.
Re: Re:
“But you can’t argue that these fans are not getting a lot of attention because the material is based on LOTR.”
True, but this is not a problem. What we have here is a clearly talented set of people working with virtually no money to create something truly stunning. That the basis for their work happened to be an existing property does not detract from that, and I can see no problem with their use of that. It’s like the Cops/Star Wars themed Troops or the Batman/Alien/Predator mashup Batman:Dead End. Entertaining for fans of the original properties while also a great advertisement for the talents of those involved.
Hopefully, this will lead to further work from the same guys with bigger budgets. Maybe they’ll also hit it big like a certain director who got his start by directing an ultra low-budget horror comedy at weekends with his friends. That would be Peter Jackson with his movie Bad Taste. An original property, true, but it is much harder to get noticed with low budget original work in this age where every idiot with a digital movie camera thinks he can make a good movie.
“What if these adaptations hadn’t been direct-to-video? What if they had serious backing?”
But they didn’t. In fact, it would have clearly been commercial suicide to bring out another high-budget adaptation of the same story at the same time. So, it would never have happened. Commercial sense was to make a low budget movie that could piggyback on the higher profile one. This was such a successful strategy that one of the low budget movies (by The Asylum) was successful enough to spawn a sequel. Sales of the original novel also soared, as well as H.G. Wells’ other books. There were enough slices of that particular pie for everyone.
Re: Re:
But you can’t argue that these fans are not getting a lot of attention because the material is based on LOTR
Why should that matter?
You are getting attention because of the internet (created by others), connected via an ISP (built by others) posting on this site (created by me) discussing a movie (created by others). Thus, you are equally as guilty of doing anything wrong that they did.
Replace “a bunch of volunteer fans on a shoestring budget” with “Paramount Pictures on an A-list budget.” Should Sony, or Universal, or Paramount be allowed to make and profit from a Lord of the Rings sequel? Should Peter Jackson have been able to make the movies he did without negotiating for the rights? Would New Line have put up hundreds of millions of dollars to make its movies knowing that anybody else – including a big studio – could make a Lord of the Rings trilogy and put it out at the same time as the New Line films?
There’s a logical contradiction in your statement.
(A) You assume that it’s “bad” if two big studios make a movie based on the same story. In this case, you assume that it’s “bad” if Paramount makes a movie after knowing that New Line is making it.
(B) Your implicit assumption is that this bad for New Line, because it loses some of its marketing power.
(C) You seem to totally ignore that the same is true of Paramount. i.e., Because they’re coming out with a movie in direct competition with New Line’s, they face the same problem.
(D) So… why would you assume this would happen. Why would Paramount *purposely* choose to make a movie with a smaller market?
Novelty and exclusivity have value to audiences. They are scarce goods
Wait, are you suggesting that a film studio should be able to declare exclusivity over the idea of a volcano film? That’s quite a stretch…
But, you’re wrong. Novelty and exclusivity have value to STUDIOS, not audiences. Audiences were BETTER OFF because of the choice, and the comparisons. It made it easier to know which films to go see. That’s a GOOD THING because it encourages greater quality in movies.
Every time a public domain property gets remade into a big-budget movie, there are a bunch of low-budget adaptations that hit the street (usually DVD) at the same time, hoping to capitalize on the popularity of the big-budget tentpole. I recall seeing a cheaply animated version of the Mulan story on Blockbuster shelves when Disney released their big-budget movie. When Spielberg put out his new War of the Worlds, no less than two direct-to-video adaptations came out at the same time. What if these adaptations hadn’t been direct-to-video? What if they had serious backing?
That would be a good thing. It would inspire both to do better.
Also, you assume (totally incorrectly) that it would hurt the audience. In many cases it would grow it. I know when I see a good movie, I’m often interested in seeing other movies about similar things. So if two movies came out based on the same story at the same time, I’d be quite interested in seeing both. Who wouldn’t?
If you have some non-anecdotal data to answer the question as to which one of these actually happens, I’d love to see it. But it’s a complex question either way.
There’s plenty of data on things like public domain documents coming out at the same time — like the 9/11 report. That’s a good starting point, suggesting that this isn’t a problem at all.
“So why should these fans even need to gain permission to create such a movie?”
Simple common courtesy to avoid future problems that may arise.
BTW, for once I do agree with EFF that whether or not this is a “fair use” is a difficult question to answer.
This isn't the first fan film to get okayed
Anyone remember the “Troops” aka Stormtrooper Cops vid?
http://www.youtube.com/watch?v=Uc9DmLc93ow
They got the okay from Lucas Films. The production value of that short, even as a spoof film, is very high.
Although I have to admit the LTR film is amazing.
Also, what about Chad Vader?
I mean it’s clearly a character based off of Darth Vader.
http://www.youtube.com/watch?v=4wGR4-SeuJ0
Re: Satire ≠ Copyright Infringement
There is no copyright infringement if a piece of work can be proven to be SATIRE. That was proven in the courts, at least in the USA, decades ago. The history of satire goes back millennia.
Re: Re: Satire â� Copyright Infringement
There is no copyright infringement if a piece of work can be proven to be SATIRE. That was proven in the courts, at least in the USA, decades ago. The history of satire goes back millennia.
Actually, it’s parody that has a fair use exception. Not satire. The fact that it’s one, not both, is rather ridiculous, but it’s the way things are right now.
Wow. I am a major fan of those movies, and this does look amazing.
This kind of thing is only going to bring more fans to the original works. It’s not like the late J.R.R. Tolkien or Peter Jackson is going to starve without profiting from this. I am a believer in copyrights but common sense is a good thing, too.
Sorta goes against big media’s claim that “If you don’t give us monopoly and bags of money the quality of entertainment will suffer”, doesn’t it?
Taolkien's wishes?
JRRT himself indicated at least on one occasion that he wanted other hands to take up the story and embellish it – and IIRC, in the essay Leaf and Tree attached to Leaf by Niggle, he mentions the way folk-tales/fairy tales developed – handed down generation by generation – as a positive thing.
I think he would be positively delighted – as long as the characters and the plot aren’t travesties. He was grim death on that.
...
So why should these fans even need to gain permission to create such a movie? Because, some people are hungry for money even though they are rich, and they want to sqeez money of the fans if they can. SOBs
Copyright and other matters
[T]he original question does remain: what if people made such a creative film without reaching such an agreement — or without promising to be totally non-commercial? Would that be so wrong? It wouldn’t take away from or harm Tolkien or Jackson’s work. It would only enhance it. So why should these fans even need to gain permission to create such a movie?
Yes, it would most certainly “be so wrong”, at least under current copyright law. If you don’t like the law, write to your Congressional representatives and encourage change. But one can’t just simply choose when to observe the law and when not to, especially not based on something as subjective as the “quality” of a fan effort.
Please don’t forget about the Ace incident in the 1960’s where a “technicality” in U.S. copyright law allowed Ace Books to publish their own copies of The Lord of the Rings without paying a cent to Tolkien, the living author at the time! This was eventually settled fairly amicably, but the point is: copyright law is in place for a reason. It is not simply to protect the “quality” of a fictive universe, but to protect the financial value of it to its creators. Tolkien worked for some twenty years on The Lord of the Rings, after all!
Now, again, if you would argue that his children, grandchildren, publishers, and so on, don’t deserve financial consideration for his work, that’s a fine and perfectly valid opinion; but then you must take it up with your legislative representatives. Only they can change copyright law (as they have several times in the past). For an example of how things can go wrong when copyright isn’t enforced, you have only to turn to Russia, where Tolkien’s works have been “extended” by new (fan) novels. Is this really what we want? Speaking for myself, no.
P.S. To Wesley, I think you are taking the “other hands” comment out of context. I don’t think it should be regarded as the encouragement you suggest it is. Epistolary evidence is tricky enough, but Tolkien was speaking in a much more hypothetical sense here, at a earlier stage in his career, and with a particular agenda in mind. Caveat lector!
Re: Copyright and other matters
For an example of how things can go wrong when copyright isn’t enforced, you have only to turn to Russia, where Tolkien’s works have been “extended” by new (fan) novels. Is this really what we want?
Well, wouldn’t the free market fix that for us? I mean, if the fan book is of good quality then it will most likely be popular and spark interest in the originals as well as giving attention to the talented writer who wrote the fan book.
If it is horrible it will most likely never be heard of again. Unless the fan is trying to pass it off as written by Tolkien, it will just make the originals all the more attractive: If you want a good LOTR book, there is no substitute for the original.
Back to the original topic: I see no logical reason why these talented fans should not be able to profit off this. I am a strong supporter of the free market, and IP laws almost always directly contradict the idea of a free market. If Tolkien Enterprises isn’t making a prequel, then what’s the problem with these fans making money off of it? Just because someone else made up the characters? Even if they *are* making a prequel, if it’s not as good and can’t compete with a $3,000 budget fan flick then Tolkien Enterprises doesn’t *deserve* to make any money.
The idea that if someone makes money on an offshoot of my word then I should also get paid even though I did *zero* additional creation/work is ridiculous. No where else in any aspect of our society does that apply. I’m sure Tolkien’s book was the first ever fantasy story with elves and hobbits, right? No? You mean he took someone else’s idea and made something more popular?
As for getting the law changed– you know damn well that without plenty of money to throw at lawmakers that the IP laws in this country will never make sense. The *only* way we the people have now is to ignore the bad law until it is irrelevant.
Re: Re: Copyright and other matters
Man, I didn’t read past “wouldn’t the free market fix that for us” because, you know what, the free market isn’t sentient and isn’t infallible … look at the current economic havoc wrought by following the whims of a free (deregulated) market.
Economics should not dictate law because money has no morality. If we truly thought that the market should regulate our actions, then we wouldn’t outlaw the selling of children.
Re: Copyright and other matters
But one can’t just simply choose when to observe the law and when not to…
Sort of lost the fire in the belly that the founding fathers had, haven’t you? (When in the course of human events, tyrants, that whole deal?)
Funny thing is that “infringing” on the “derivative rights” of a dead author would have been laughed out of court by even the most Tory judge.
Re: Copyright and other matters
Please don’t forget about the Ace incident in the 1960’s where a “technicality” in U.S. copyright law allowed Ace Books to publish their own copies of The Lord of the Rings without paying a cent to Tolkien, the living author at the time! This was eventually settled fairly amicably, but the point is: copyright law is in place for a reason. It is not simply to protect the “quality” of a fictive universe, but to protect the financial value of it to its creators. Tolkien worked for some twenty years on The Lord of the Rings, after all!
That’s a bit of twisting of the purpose of copyright law. It’s never been about protecting. It’s always been about incentives…
Now, again, if you would argue that his children, grandchildren, publishers, and so on, don’t deserve financial consideration for his work, that’s a fine and perfectly valid opinion; but then you must take it up with your legislative representatives.
I have to say I find this argument wholly unconvincing. I write about things here because it inspire thought and discussion that often does influence what others say to their elected reps. To say that we shouldn’t say anything publicly and should ONLY write our reps is wrong. You influence change by speaking out publicly. So that’s what we do.
For an example of how things can go wrong when copyright isn’t enforced, you have only to turn to Russia, where Tolkien’s works have been “extended” by new (fan) novels. Is this really what we want? Speaking for myself, no.
Wait, what’s wrong with that? That sounds great to me. Why does it offend you? It doesn’t impact you at all. You don’t have to read those extended books. So you’re not harmed at all. Only those who are interested in reading them are able to.
I can’t see how that’s a problem at all.
Another example...
…is Star Trek: New Voyages, which is made by fans with the knowledge of Paramount. Last year, it was nominated for a Nebula Award (the second biggest science fiction awards after the Hugos), but arguments broke out about whether it met the Nebula requirement of “professionally produced”… and if it did qualify as “professional” and not a “fan” production, did that mean Paramount was required to shut it down?
lotr prequel
Because it’s polite and respectful to do so?
It seems that a lot of comments are being made based on the assumption that this is going to be a great movie; all from a 2 minute trailer. And there seems to be a rather quick jump that since this is going to be a great movie, it is only going to add value to the original franchise and should be allowed.
I can see, from Tolkien Enterprises’ point of view, why they insisted on non-commercial use. Imagine if people went to see this movie at a theater, paid $10, and hated it (these people will exist). That doesn’t only reflect poorly on the film, but the entire Lord of the Rings brand. While this negative fallout can surely exist even in the not-for-profit world, I believe viewers who are disappointed with this movie will have an easier time getting over it if they didn’t pay.
At the same time, had they not contacted Tolkien Enterprises, who judges what is/isn’t too far a departure from what “should” be happening in the world of Middle Earth? The example of Frodo and Sam getting it on in a fan-made sequel was given in an earlier comment. Given the lines from, I believe the first movie (Sam: “I love you Mr. Frodo”, Frodo: “Not now Sam.”), would it be such a departure to film a fan-made Brokeback Mount Doom?
I believe claiming “they should have been allowed to do it anyways because it’s obviously going to add value to all parties involved” is a bit of a cop out.
The fact of the matter is is that this movie is piggy backing on the success of Lord of the Rings. Whether it will or will not create value for the overall brand is yet to be determined. If for nothing else, then out of respect for the original content creators, some form of agreement should be reached where the parties are content.
In this case, I believe the film makers proceeded properly. Had this same release been done without consent of Tolkein Enterprises, I would say it is not their place to be using these characters and this world for their own benefit. There are plenty of ways these film makers will be compensated for their work aside from monetary values.
Re: Re:
can see, from Tolkien Enterprises’ point of view, why they insisted on non-commercial use. Imagine if people went to see this movie at a theater, paid $10, and hated it (these people will exist). That doesn’t only reflect poorly on the film, but the entire Lord of the Rings brand. While this negative fallout can surely exist even in the not-for-profit world, I believe viewers who are disappointed with this movie will have an easier time getting over it if they didn’t pay.
Why? As long as it is clearly presented as fan created (which it is), why would it harm the legit productions? It’s quite clear that it has nothing to do with them, so it wouldn’t harm them at all.
At the same time, had they not contacted Tolkien Enterprises, who judges what is/isn’t too far a departure from what “should” be happening in the world of Middle Earth? The example of Frodo and Sam getting it on in a fan-made sequel was given in an earlier comment. Given the lines from, I believe the first movie (Sam: “I love you Mr. Frodo”, Frodo: “Not now Sam.”), would it be such a departure to film a fan-made Brokeback Mount Doom?
Again, why is that a problem?
I believe claiming “they should have been allowed to do it anyways because it’s obviously going to add value to all parties involved” is a bit of a cop out.
Why?
The fact of the matter is is that this movie is piggy backing on the success of Lord of the Rings. Whether it will or will not create value for the overall brand is yet to be determined. If for nothing else, then out of respect for the original content creators, some form of agreement should be reached where the parties are content.
What’s wrong with piggy backing on the success of LOTR? EVERYTHING piggy backs on the success of something else. Do you know how many stories LOTR was influenced by? Should Tolkien needed to get permission from all of them first?
Fair use
Fair use only applies to use of copyrighted material for commentary or parody. Chad Vader and Spaceballs are OK. This movie is neither. It is technically not in a legal gray area. Look here: http://www.templetons.com/brad/copymyths.html
“U.S. Copyright law is quite explicit that… works based or derived from another copyrighted work… is the exclusive province of the owner of the original work. This is true even though the making of these new works is a highly creative process. If you write a story using settings or characters from somebody else’s work, you need that author’s permission.
Yes, that means almost all “fan fiction” is arguably a copyright violation. If you want to publish a story about Jim Kirk and Mr. Spock, you need Paramount’s permission, plain and simple. Now, as it turns out, many, but not all holders of popular copyrights turn a blind eye to “fan fiction” or even subtly encourage it because it helps them. Make no mistake, however, that it is entirely up to them whether to do that.”
There are two primary reasons owners do not sue over fan fiction. 1. They think they are being helped by the interest created by fan films. 2. Even though unauthorized fan films violate copyright law, if they have no commercial value damages may be zero. Fan fiction is technically illegal, but the commercial value is a “gray area” that would need to be litigated over for the plantiff to obtain damages. If they were particularly vindictive, they could push for criminal charges in some cases. “USA commercial copyright violation involving more than 10 copies and value over $2500 was made a felony.”
wah wah wah
It’s so funny to me what you guys choose to cry about. I keep hearing how stupid Hollywood is for copying and remaking existing films but when a fanboy does it it’s WONDERFUL! What a crock. Fanfilms are a joke. there’s very little art involved despite a high level of craft as is displayed in the attached trailer. The real challenge is in coming up with your own property and figuring out how to get people to it.
So where is this going to be released? Where can I grab a torrent?
Re: Where to see it on the net:
Watch the trailer again and note the web address provided at the end.
a couple of random thoughts
The film isn’t a ‘copy’ of anything. Sure it uses the same characters and the same setting, but the film itself is a complete new work. It’s not using ‘samples’ or ‘outtakes’ of Wingnut’s film. It’s not a remake of Wingnut’s film. It’s a whole new original work. Why is this even considered copyright infringement?
Also, on the assumption that it were somehow an infringing copy why is it only OK if nobody makes any money out of it? Surely any ‘harm’ to the original is the same, if not greater, given that anyone can get this film for free?
Re: a couple of random thoughts
See this comment for answers to your questions: http://techdirt.com/article.php?sid=20090501/0312444716&threaded=true#c361
Yes, it infringes; no, it doesn't matter
FWIW, I researched this heavily for my book about fan films, Homemade Hollywood, which just came out. For the studios, efforts like these are the equivalent of the 12-year-old next door taking your Maserati out for a joyride; even if it comes back without a scratch, you’re still going to be furious–but what can they really do?
In most cases, rights holders have ignored the growing popularity of fan films, sometimes willingly since they are generally tribute films that provide a no-cost way to keep fans interested in a franchise during times of drought (witness the rise of high-profile Star Trek fan productions in recent years).
At the same time, studios are in business to make money, and prosecuting a fan film case is a poor financial move all around. First, going after your fans is bad PR (ask Lars from Metallica). More importantly, however, the cost of mounting a case against a typical fan filmmaker is far more than you could ever hope to gain from a court decision or settlement.
As an aside, coincidence or not, in recent years, most studios that have used cease and desist letters to shut down fan films that “compete” with their feature films have produced lousy movies. Fox canned a UK-based Max Payne fan flick in spring, 2008, and look how awful that feature turned out to be. Similarly, the folks behind the upcoming GI Joe movie have been shutting down related fan films for YEARS–and now look at the huge negative reaction across the web to the first GI Joe trailer. When a studio is afraid of a fan film, it seems to be indicative of a weak property.
Nonetheless, studios are going to have to find better ways deal with fan films. Lucasfilm was pretty canny in “accepting” them by creating its annual fan film contest–by creating strict entry rules, it created a way to control the content going into fan productions without having to send lawyers after every teenager with a video camera.
One of the things I talk about in the book–and on my daily fan film news blog, fancinematoday.com–is that the studios should try to cultivate these amateur filmmakers, not merely to help spread the word by creating flicks about fledgling properties, but also as a revenue source–sell ’em permission, official sound effects, visual effect clips to be edited into a fan film, and so forth.
With the technological point of entry so low now that anyone with a computer and a camera can “make a movie,” it’s a next step waiting to happen. It might shave the “outlaw” feel off an otherwise semi-pro production like “Hunt for Gollum,” but officially ratified fan films are probably the next big step for the hobby.
Clive Young
Re: Yes, it infringes; no, it doesn't matter
Thank you for that entry, Clive. One of the best comments posted on TD in quite awhile. I hope that Hollywood and the studios can continue to embrace more of their fans rather than reject it, since everyone can really win, helping to fill in the gaps between major releases.
Re: Yes, it infringes; no, it doesn't matter
“Yes, it infringes”
Bold assertion w/no support given other than b/c I wrote a book about it. Unfortunately we cant even Look Inside This Book on Amazon to see if you have a decent argument in your book either.
Oh, yes! Fantastic post! Full of grandstanding crap.
Re: Re: Yes, it infringes; no, it doesn't matter
If you knew anything about copyright law, you’d understand that the assertion that it infringes is not open for debate … and so no need to support it. Get educated before you start insulting others based on your ignorance.
Re: Yes, it infringes; no, it doesn't matter
Nonetheless, studios are going to have to find better ways deal with fan films. Lucasfilm was pretty canny in “accepting” them by creating its annual fan film contest–by creating strict entry rules, it created a way to control the content going into fan productions without having to send lawyers after every teenager with a video camera.
Meh. Lucas recognized the law as it was written, and he should get credit for doing at least that (the *AAs could have taken a lesson from him.) However, he just reinforces current law. Parodies are OK (Thanks, Uncle George! Only they always were.) If you try to make a serious drama drawing from the SW universe, you’re risking some serious legal action.
I’m disappointed in you, Clive. I would have expected you to realize the problems with a model that allows you to poke fun, but not tribute.
Re: Re: Yes, it infringes; no, it doesn't matter
#47 – Read the book, and you’ll discover we completely agree.
While the Lucasfilm contest DOES allow dramatic fan films now (it changed its tune two years ago), you’re absolutely right that only parody and documentaries were initially allowed. That’s why I put “accepted” in quotes above–because the contest was spun as Lucas was “allowing” those kinds of movies to be made, when in fact, by law, he had no choice.
From a corporate IP point of view, it was a brilliant move on their part, because by creating a contest where fans could win money, a trophy and the possibility that Lucas would see their movie, Lucasfilm virtually guaranteed that any fan filmmaker creating a Star Wars flick would follow the rules. After all, if you’re going to go through all the trouble to make a movie, why wouldn’t you at least ensure that it could be entered in the contest?
As a result, Lucasfilm exerted a lot of control over SW fan film content without having to sue anyone. Painting such a move as a gift to the fans was smarmy; on the other hand, it’s easy to see WHY they chose that route initially:
Most of the company’s SW-related projects take a few years to be created, regardless of whether they’re movies, TV series, novels, video games, etc. Let’s say a new game is being plotted by one part of the company when a fan film with a similar plot is coincidentally submitted to the other part of Lucasfilm running the contest. In theory, the company opens itself up to a plagiarism suit when the game comes out, as the filmmaker could say Lucasfilm had seen his movie, even though it was unlikely that anyone involved with the game would see the fan film entry. In this light, now allowing dramatic fan films was a basic–and understandable–CYA move.
That said, the contest now allows dramatic efforts, and to date, Lucasfilm has only ever sent out one cease & desist letter to a dramatic fan film–1999’s “The Dark Redemption.” The contest started two years later, presumably after Lucasfilm had given in to the fact that Star Wars fan films just weren’t going away.
reality check time
“but still looks amazingly professional… nearly the equivalent of a high budget production on a shoestring budget.”
Gimme a break. It’s got a cast of about 8, ripped off music, ripped off shots (every wide shot is stolen), no visual effects, terrible sound, and, oh… IT’S SHOT ON VIDEO. It doesn’t look amazingly professional. It doesn’t even look amazingly amateur.
Come on, you shoot everything at medium close ups and cut everything 6 frames long, then intercut it all with material shot by Peter Jackson, lay it over some dramatic music, and of course it’ll look halfway decent. But I have no doubt the final product will have absolutely no entertainment or artistic value.
Re: reality check time
Gimme a break. It’s got a cast of about 8, ripped off music, ripped off shots (every wide shot is stolen), no visual effects, terrible sound, and, oh… IT’S SHOT ON VIDEO. It doesn’t look amazingly professional. It doesn’t even look amazingly amateur.
Wow. Don’t know what to say other than that I simply disagree. I think it’s amazingly professional. Are you suggesting you could do better? That would be interesting to see.
Re: reality check time
If you watch the visual effects reel you’ll see there are quite a few effects, and, although they don’t come out and say it, it appears that no shot was actually taken from the film verbatim (it appears to me that in a few places they may have composited elements from the original into new scenes). I wondered about the music; given the creators’ agreement with the Tolkien folks this would seem to be the main place where there could be a legitimate copyright beef.
And, you do realize that most TV dramas and quite a few features are now “shot on video”, don’t you?
Non-profit fan fiction = very common
Fan fiction is actually remarkably popular. No one worries about it as long as it is not sold for profit. If you want to sell it, then you require permission of the living author. If the author is not living, then you have to ask the owners of the copyright. When the copyright runs out, you can do as you wish.
For the non-profit fan fiction the usual story is that: (A) It is severely frowned upon by fans because it is typically terrible. (B) Stepping on the territory of a living author’s own work is outright condemned by fans. In this case the fan is smart to contact the author and consult with him about the territory of the fan story. In the case of “The Hunt for Gollum”, apparently the owners of the copyright saw no conflict with any other known elaborations upon Tolkien’s work.
Essentially, by law and by courtesy, the copyright holder has the last word. Satire, however, is the sole exception. Typically, countries have no laws against satire of copyrighted work.
The movie does look like it would be quite interesting, but why is the BBC trying to muscle in on it by having their logo on the top left hand corner? The BBC didn’t make it.
Doesn't scale though
Well, modern technology and a small army of skilled folks willing to work for free. Check the “visual effects” reel to see just how many artists donated their time to this, for some combination of personal enjoyment and exposure. (It would be interesting to calculate how much this production would have cost had the participants been paid “normal” wages for the type of work involved).
So while what you say is true for this particular project and the similar Trek fan efforts, it doesn’t scale up very well: at some point people are going to expect to get paid for their work, particularly when the creators start to make some money from it.
Where the devil can you download the thing? I can only find the trailer.
Re: Where to find it?
Google for it with ‘torrent’ added in the search…
Great Discussion
Nice discussion to be sharing for all. thank you.
fundamentals
Let’s face it, the intention of “copyright” is ethical and valid. However, it has been massively distorted by the predators-that-be (as they always do). Think for a second. What is the fundamental nature of “copyright”? Answer: It is a common/standard agreement between seller and buyer. In effect, the author says “I will sell you one copy of this book/movie/whatever on the condition that you do not make additional copies”. Thus it is simply a contract, and is reasonable because the author created the work.
However, it is utterly absurd to imagine any author could have an reasonable right to claim “the names or places in my story are proprietary”. That’s absurd. Just imagine a book with characters “Bill” and “Fred”. So, nobody for the rest of time can write stories that contain characters “Bill” and “Fred”? Give me a break. Ditto for “Chicago”, or for “zombies”, or whatever.
Therefore, it is absurd to imagine that just because you wrote a story with “Dingus McGee” that takes place on “Mars” that nobody else could create a completely new story that contains those elements. Of course the predators-that-be who claim we are their slaves, and must follow whatever insane rules they choose to concoct (at the behest of some lobbyist), is absurdity incarnate.
Therefore, ethically speaking, I think the issue is simple. This wonderful film in no way abuses the authors or his decendants.