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Censorship Your Rights Online

Tolkien Estate Censors the Word "Tolkien" 433

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

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

  • by Daniel Dvorkin (106857) * on Sunday February 27, 2011 @05:34PM (#35333316) Homepage Journal

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

  • by Anonymous Coward on Sunday February 27, 2011 @05:35PM (#35333320)

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

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

  • by Travelsonic (870859) on Sunday February 27, 2011 @05:36PM (#35333324) Journal
    It IS censorship, whether or not it is JUSTIFIABLE censorship is another matter entirely.
  • by jimhill (7277) on Sunday February 27, 2011 @05:37PM (#35333342) Homepage

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

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

  • Doh! (Score:4, Insightful)

    by Aighearach (97333) on Sunday February 27, 2011 @05:38PM (#35333348) Homepage

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

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

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

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

  • by Jafafa Hots (580169) on Sunday February 27, 2011 @05:39PM (#35333368) Homepage Journal

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

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

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

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

  • by KingSkippus (799657) on Sunday February 27, 2011 @05:43PM (#35333398) Homepage Journal
    Dammit, I accidentally missed the "Insightful" on the pull-down list and hit the next item up, "Redundant." I'm posting to negate my moderation on this post. >:-(
  • by Anonymous Coward on Sunday February 27, 2011 @05:49PM (#35333448)

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

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

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

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

    WTF?

  • by vadim_t (324782) on Sunday February 27, 2011 @05:52PM (#35333476) Homepage

    This usage should fall under nominative use [wikipedia.org] use, though.

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

    Check.

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

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

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

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

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

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

  • by green1 (322787) on Sunday February 27, 2011 @05:57PM (#35333522)

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

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

  • by Thangodin (177516) <elentar@symp a t ico.ca> on Sunday February 27, 2011 @06:18PM (#35333648) Homepage

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

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

  • by causality (777677) on Sunday February 27, 2011 @06:25PM (#35333688)

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

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

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

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

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

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

  • by Alain Williams (2972) <addw@phcomp.co.uk> on Sunday February 27, 2011 @06:35PM (#35333754) Homepage
    Eg: http://www.123people.com/s/tolkien [123people.com] that turns up Tolkiens by the page full — do you think that some of them might have something to say about their name being grabbed by the estate of an author — even if he was a good one ?
  • by asdf7890 (1518587) on Sunday February 27, 2011 @06:45PM (#35333804)
    Congratulations to the Tolkien Estate, on ensuring that I will never again spend money on anything that has the slightest chance of putting a penny in your grubby mits.
  • by causality (777677) on Sunday February 27, 2011 @06:50PM (#35333822)

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

    What law? There is no law enabling such behaviour.

    Is this how intellectual property gleans so many negative myths?

    There's absolutely a law enabling such behavior.

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

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

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

    It's negative alright but it is no myth.

  • by causality (777677) on Sunday February 27, 2011 @07:09PM (#35333930)

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

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

     

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

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

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

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

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

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

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

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

  • by maxwell demon (590494) on Sunday February 27, 2011 @07:24PM (#35334018) Journal

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

  • by ShakaUVM (157947) on Sunday February 27, 2011 @07:26PM (#35334034) Homepage Journal

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

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

  • by sumdumass (711423) on Sunday February 27, 2011 @08:39PM (#35334430) Journal

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

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

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

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

  • by sg_oneill (159032) on Sunday February 27, 2011 @09:21PM (#35334684)

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

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

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

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

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

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

    Reviewers couldn't do negative reviews.

    Companies couldn't make comparitive claims about their competition.

    And so on...

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

  • by fishbowl (7759) on Sunday February 27, 2011 @10:03PM (#35334898)

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

  • by Moryath (553296) on Sunday February 27, 2011 @10:10PM (#35334938)

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

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

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

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

  • by russotto (537200) on Monday February 28, 2011 @12:04AM (#35335450) Journal

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

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

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