A judicial memorandum filed Wednesday in California opens the way for the Warner Bros. and the Tolkien Estate to continue their battle over the extent of Warner’s rights to market products associated with “The Hobbit” and “The Lord of the Rings.” The disagreement hinges on the Estate’s claim Warner only has the right to sell “tangible” merchandise.
In 2012, The Tolkien Estate filed a lawsuit against Warner Bros., claiming Warner was exceeding the limits of the licensing agreement by marketing certain Middle-earthed themed “digital exploitations,” including online slot machines. Warner counter-sued, claiming the Estate’s actions had cost them money since they were not able to exploit revenue sources they believed were within the purview of the agreement as it had been interpreted through the years. Warner also asserted this limited potential publicity for the Hobbit films.
The Estate’s reaction to the counter-suit was to try to get it dismissed based on California’s anti-SLAPP statute. The Strategic Lawsuits Against Public Participation law was designed to prohibit defendants from suing plaintiffs for suing, but in 2013 U.S. District Judge Audrey Collins denied the Estate’s dismissal. Collins disagreed Warner’s counter-suit had malicious intent, writing in his judgement, “these claims arise out of the parties’ divergent understanding of the Warner Parties’ and Zaentz’s rights to The Lord of the Rings and The Hobbit. They are routine contract-based claims and counterclaims.”
The Tolkien Estate immediately filed an appeal of Collins’ derision, which put the suits in limbo until Wednesday’s decision by the Ninth Circuit, which upheld the district ruling. According to The Hollywood Reporter, this opens the door for a court ruling on the lawsuits in the near future.
This is not the first time Warner Bros. and the Tolkien Estate have butted heads. In February 2008, JRR Tolkien’s son Christopher filed suit on behalf of the Estate attempting to block the release of the Hobbit movies. Christopher’s animosity toward the Peter Jackson iteration of Middle-earth was confirmed in 2012 in a rare interview with the French newspaper “Le Monde.” In an English translation of the article, Christopher Tolkien is quoted as saying,
“They eviscerated the book by making it an action movie for young people 15 to 25… And it seems that The Hobbit will be the same kind of film…. Tolkien has become a monster, devoured by his own popularity and absorbed by the absurdity of our time. The chasm between the beauty and seriousness of the work, and what it has become, has gone too far for me. Such commercialisation has reduced the esthetic and philosophical impact of this creation to nothing. There is only one solution for me: turning my head away.”
Whatever your view of the conflict between the Estate and the studio, it is clear the movies have made those involved in making the films rich, as well as adding quite a significant sum to the coffers of the Charitable Trust run by the Estate. Some lawyers are probably getting rich, too.