Salmoneus wrote: ↑09 May 2020 21:51
elemtilas wrote: ↑09 May 2020 20:49
This is a valid point, and people have run afoul of it. Strictly speaking, it's the specific trademarkable or copyrightable content you'd want to avoid. After all, Tolkien didn't invent the words themselves -- "ent" is an Old English word, "hobbit" is a kind of folkloric sprite of some kind, "orc" derives ultimately and in several different ways from Latin. If you wanted to name a specific Hobbit "Bilbo Bagguns" and have him live in a place called "Baggend" in a country called "Shire", you might run afoul of the Tolkien Estate. Particularly if you tried to make money off it!
IANAL, but AIUI the legal issues here are complex and largely untested. It's not clear where the line is - you can't copy characters (though conceptually it's not entirely clear why not...), you can make derivative worlds (cf the whole of D&D with its elves and dwarves and so on), but where the line is in-between, when it comes to, say, borrowing a species, isn't clear.
Nor I. One could probably make a legal career out of studying the intricacies of just the legal ramifications following from In a hole in the ground there lived a Hobbit...
I suspect that the line really only becomes clear when a sufficiently large profit margin is in sight.
Hobbits definitely are copyright. The word "hobbit" was invented by Tolkien, so writing about hobbits is like writing about Klingons. [it may indeed have been subconsciously inspired by 'hob', a goblin, and a traditional English diminutive '-it'. But Tolkien himself thought the inspiration was the name of the protagonist in Sinclair Lewis' novel Babbit; 'babbit' became a common word in the decades after the novel's publication, meaning a boring, respectable, obedient, soulless follower of middle-class American social norms - Hobbiton was a satire of contemporary conventionalism.]
Not entirely correct; or rather, not the full story. Indeed "hobs" and "rabbits" may have played a part, but Tolkien himself could offer no definitive story as to the word's origin in his own mind. Could have been a flash of inspiration, he could have seen the word in print, or it could be an unconscious re-inventing of an older word or concept, as I'm sure most of us have done! (Just today over on Reddit, I witnessed a language inventor take very careful pains to describe her writing system as going along from margin to margin, and then lo! it makes a turn and continues on the next line going in the opposite direction! What a wonderful invention and ... oh, the deflation when another person came along and, with one word --- boustrophedon
--- popped the balloon!)
"Hobbit" was indeed known to English folklorists as some kind of fairy or wee creature by the mid-19th century, along with loads of other hob- names. The name appears in the Denham Tracts, which were collected no later than 1859 and published by 1895. I don't know if JRRT was aware of this source or not. Could be that the particular inspiratom
that struck his mind had a roughly H-B-T shape and could have resonated with any of a dozen words with roughly that shape already known to him.
Legally, of course, it's a can of worms, as T.E. proposes, through its orcish army of lawyers, to claim proprietary status via law suit. This is why early on, D&D Hobbits become Halflings and Ents become Treants. A strong-arm tactic, in my opinion, and one that only serves to cast a shadow over the underlying issue: basically, might makes right. Even though JRRT didn't invent the word "hobbit" first
, the court sided with SZC & Warner in the matter even though their claim was factually demolished by the Denham Tracts in evidence. My guess is their legal theory boiled down to "everyone knows Tolkien, but who's ever heard of Denham??"
They've gone after a number of establishments that use the word "hobbit" in their name as well, and almost always successfully.
In between... the consensus seems to be that ents are copyright, but that orcs aren't, even though both names are from old english and not really used since then. The key may be that Tolkien identifies his orcs as simply another word for goblins, and goblins are a pre-existing concept (although again, of course, modern goblins are mostly ripped from Tolkien, though his in turn are from MacDonald); whereas ents are all his own idea.
Indeed. Hence the complexity! Word vs concept; moneyed attorneys vs poor creative; the dark side & intellectual orcishness of all things Tolkien. orþanc lahwitena geweorc!