Use of JRR Tolkien Elvish Script and Images

[MrsTwosheds]

Hi Andy et al

Thanks to you guys, our exhibition passed successfully without even once raising a copyright issue! Thank you so much for your help with that.

Am returning to normal 'needlewoman' mode now and thought (as an old hippy) that I might start with a Lord of The Rings motif (which may or may not make it to public display, depending upon how well it turns out!).

However, I am very confused indeed about the enormous amount of graphic works in existence online - for a work which is, presumably, still within copyright, there are phenomenal amounts of Elvish Script and Tree of Gondor illustrations, tattoos, bags, sweaters, wall decals, T shirts, etc. Why is that?
Is it OK for me to do it, too? The script puzzles me very much, as there is no room for artistic interpretation here, so each depiction (by whatever medium) is exactly the same.

I know that you will know the answer to this. Is there something I've missed?

Very many thanks for your help.

Sally

[AndyJ]

Hi Sally,

Glad to hear your exhibition passed off without incident!

I'm afraid that Tolkien and his books passed me by and so I am not au fait with the details of his works, such as Elvish script. However the following extract from the Wikipedia entry for The Lord of the Rings tells me virtually every thing I need to know about the intellectual property aspects:

In 1969, Tolkien sold the merchandising rights to The Lord of The Rings (and The Hobbit) to United Artists under an agreement stipulating a lump sum payment of £10,000[93] plus a 7.5% royalty after costs, payable to Allen & Unwin and the author. In 1976, three years after the author's death, United Artists sold the rights to Saul Zaentz Company, who now trade as Tolkien Enterprises. Since then all "authorized" merchandise has been signed-off by Tolkien Enterprises, although the intellectual property rights of the specific likenesses of characters and other imagery from various adaptations is generally held by the adaptors. Outside any commercial exploitation from adaptations, from the late 1960s onwards there has been an increasing variety of original licensed merchandise, from posters and calendars created by illustrators such as Pauline Baynes and the Brothers Hildebrandt, to figurines and miniatures to computer, video, tabletop and role-playing games. Recent examples include the Spiel des Jahres award winning (for best use of literature in a game) board game The Lord of the Rings by Reiner Knizia and the Golden Joystick award-winning massively multiplayer online role-playing game, The Lord of the Rings Online: Shadows of Angmar by Turbine, Inc.

The fact that there is a company set up for the specific purpose of exploiting the Tolkien books etc means that anyone who attempts to exploit even some remote detail without permission can expect a lawyer's letter by the first post. This certainly happened to a pub in Hampshire.

On the specific subject of Elvish, there is no question that Tolkien created both the languages and the scripts, and since these are not conventional languages (in the sense they are in everyday use like English or French) there is no reason to assume that copyright does not exist for the languages and the lettering as literary and artistic works respectively. I am not clear about whether the few Elvish scripts which have been turned into typefaces (fonts) have been done with permission. If they have then using one of the typefaces does not amount to infringement of the artistic work which is to be found in the underlying designs. Typefaces occupy a strange world in which the designs are protected by copyright, but using the fonts themselves (either the old metal type or today's software-generated fonts) to print or render text does not infringe that copyright. It would infringe if a new typeface was created from a pre-existing face.

I'm not sure if I have really helped to clarify things in relation to your Lord of the Rings motif, as I am not clear what that is. If it is a specific graphic found in one the LotR books, I would suggest you don't use it commercially without getting permission.

[MrsTwosheds]

Hi Andy

Thank you, yes - all good on the exhibition front (hoorah)!

Ooh.....this is probably one to be avoided, I think. I may do something else in a similar vein and avoid Lord of The Rings altogether, as I can live without a solicitor's letter. I think that there are Elvish Script Generators online, but these are of limited use without anything to attach the script to, I guess.

Back to the drawing board with this one then. Thank you, as always, for your speedy and excellent answers to my queries (and for saving me from a life behind bars!).

Best regards

Sally

[MrsTwosheds]

Hi again guys

Have been pondering over this (for the whole of last year!) and am still wondering about the extent of copyright on the whole Lord of The Rings issue. I appreciate that the company set up to exploit Tolkien’s work will do so if they can, but I was wondering how much power they have with regards to images which were already in existence prior to Tolkien’s use of them.

The image that I would like to use is similar to his Tree of Gondor illustration. It is based on the ‘blasted tree’, which has been in use as an heraldic device for some centuries and appears on all sorts of coats of arms, etc. His tree has seven stars around the tops of the branches, but other than that is not an ‘original’ concept. Would I be in hot water for drawing my own blasted tree (in every sense!) and sticking a crown or a trio of suns above it?

Thank you for your invaluable help in advance.

Best regards

Sally

[AndyJ]

Hi Sally,

Not being familiar with the Tree of Gondor (or indeed the works of JRR Tolkien more generally), I googled the image. I am assuming that you are talking about something like the tree featured in various Etsy postings here. If you are reasonably sure that the basic tree image was already in existence before Tolkien's illustrator adapted it, then I think it would be reasonably safe to make your own version. Although it is not a totally reliable indicator, the fact that as the original design is widely used on Etsy and the postings there appear to be fairly old, suggests that no-one has been concerned enough to demand that they are taken down on the grounds of copyright infringement.

[MrsTwosheds]

Hi Andy

Thank you - yes, that’s the image (or similar) that I’d like to use. I can’t currently find an actual instance of the use of such a device, but I’ve found a heraldry website which references the heraldic ‘blasted and eradicated tree’ (leafless and with exposed roots) and a drawn image to illustrate it, which corresponds to the picture I have in my head. It mentions its existence as far back as 1581, so I guess I’m OK! It’s comforting to know that no-one appears to have been arrested yet!

Thank you, as always, for your kind assistance and very speedy response.

Best regards

Sally

[MrsTwosheds]

Good afternoon all

Despite a long period of inactivity, still thinking about you guys!

You will be distressed to know that I haven’t given up on this theme yet (persistent, if nothing else). I have been closely watching Etsy in an attempt to ascertain whether users of the Tree of Gondor motif have been clapped in irons by the copyright holders of the Tolkien estate. It would appear not as they are thriving, and every man and his dog now appears to have this image slapped across his chest.

Here’s the thing. Saying that someone purchased a downloadable image of said tree from Etsy (and this is a possibility) to use for various future craft projects in the public arena, would this person be liable to unspeakable sanctions or would the offence lie with the distributor/seller of the template? Asking for a friend.

Thanks, guys.

[AndyJ]

Hi Sally,

Good to hear from you again. Downloading and using the tree image for commercial projects would not be advisible, but if this was just for a one-off personal project I think there would be negligable risk involved.

The problem with the whole concept is that ignorance of the fact that something is protected by copyright is not a defence, unless you can show that the person who supplied the image had authorised its use, even though it subsequently was shown they had no right to do so. This second situation where you thought you were dealing with an authorised image would mean that you might only be liable for secondary infringement, under section 23 of the CDPA, which says:

23 Secondary infringement: possessing or dealing with infringing copy.

The copyright in a work is infringed by a person who, without the licence of the copyright owner—

(a) possesses in the course of a business,

(b) sells or lets for hire, or offers or exposes for sale or hire,

(c) in the course of a business exhibits in public or distributes, or

(d) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,

an article which is, and which he knows or has reason to believe is, an infringing copy of the work.

As you can see from the last clause of that section, in the case of secondary infringement the claimant would have to show that the downloader had positive knowledge that the work concerned was an infringing copy. You may be thinking that as section 23 talks about this in the context of doing business, it should cover you if you wanted to sell your projects which included the disputed image. Well, yes that would have been so prior to a case before the Court of Justice of the European Union (CJEU) known as GS Media. That case was about linking to infringing material on a website rather than downloading it, but I think the answer to CJEU came up with would be relevant to downloading in one specific aspect. In GS Media the Court concluded that where the linking was for private purposes (ie the webiste where the link was placed was not one engaged in commercial activities), then there would be no infringement even if the site being linked to was hosting an unauthorised copy of the work. However where the destination site had a commercial purpose, the Court said that the owner of that site was under an extra duty to satisfy themselves that what was being linked to was an authorised use of the work concerned, or they would be liable for infringement. In other words a commercial operation is required to go the extra mile in satisfying themselves about the provenance of a copyright work they wish to use. This decision was something of a fudge, but it stands as the current state of the law. Even though we are no longer in the EU, because that decision preceeded Brexit, the UK courts still have to follow that CJEU decision, and I think that anyone arguing the case on behalf of a claimant in a UK court would be bound to bring it up as a way to try and defeat the last part of the section 23 defence.

Then there is the entirely separate doctrine of estoppel by acquiesence. This says that if a person, such as the rights holder in this instance, knows that infringing use is being made of their work and does nothing to stop it, and someone else relies on their acquiesence to undertake a course of action, the rightsholder is prevented (estopped) from making a claim against that second person because they failed to safeguard their rights when the earlier opportunity arose to do so. So if the use of the tree on Etsy is relatively widespread and blatant, and the Tolkien estate have not so far done anything about it, it may be that they would be estopped from bringing a claim at some future date, but it would very much depend on the detailed facts.

[MrsTwosheds]

Good morning Andy

Great to be back! Thank you for your speedy and erudite reply as always.

Oooh.....what a botheration! I thought I’d nailed it there - there are no less than 24 downloads of it in various styles on Etsy, many claiming to be suitable for decal use on T-shirts, mugs, etc, and at least one permitting the use of the image for items to be resold (although not allowing distribution of the digital file itself). That’s a pain. Back to the drawing board for me, I guess.

Huge thanks again, Andy.

All best

Sally