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In a hole in the ground there lived...

March 13th, 2012 (04:38 pm)
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You might think that the holders of commercial rights in The Hobbit would be more flexible with long-established businesses whose cultural, social and economic context is not that of the film and whose presence attests to the influence of Tolkien's work on the people of this and other countries; but no...

BBC News: Hobbit pub in Southampton threatened with legal action

Southampton Daily Echo: Southampton pub The Hobbit in battle with Hollywood studio

Also posted at http://sir-guinglain.dreamwidth.org/495773.html.


Posted by: Susan (lil_shepherd)
Posted at: March 13th, 2012 05:37 pm (UTC)

I'm not sure they'll win the one against the pub. I can't see a case under copyright and passing off laws, because nothing much has been copied and they aren't making money out of the name itself. Furthermore, there is legal precedent (the infamous Holly Hobby case) that states that trademark laws only apply to the type of goods the trademark was issued for.

Posted by: Simon Bradshaw (major_clanger)
Posted at: March 13th, 2012 07:07 pm (UTC)
Legal Clanger

Also, the use of the mark in question apparently predates registration by fifteen years.

Posted by: parrot_knight (parrot_knight)
Posted at: March 13th, 2012 07:10 pm (UTC)

It is good to have advice from m'learned friend; might someone in the legal department at Zaentz be operating a scare tactic in the attempt to establish precedent?

Posted by: Simon Bradshaw (major_clanger)
Posted at: March 13th, 2012 07:12 pm (UTC)
Legal Clanger

They won't be establishing precedent because (a) you generally only do that by appealing to the senior courts and (b) there is abundant case law on this point anyway.

Rather, they are engaged in the age-old tactic, especially from aggressive US law firms, of threatening costly litigation in the hope of a settlement. For the reasons I've explained in my comment below, I hope that they come unstuck on this.

Posted by: Adilo Creamon (the_marquis)
Posted at: March 13th, 2012 11:21 pm (UTC)

What about Birmingham's 'The Hungry Hobbit' didn't they get stamped on by the SZC lawyers last year for using the word 'hobbit'?

Posted by: Simon Bradshaw (major_clanger)
Posted at: March 13th, 2012 11:32 pm (UTC)

Looking at the news reports they got a cease-and-desist letter, which is not the same thing as being ordered by a court to change their name. I'm not sure what happened, although it seems the HH had been using the name for a much shorter period that the pub has.

Posted by: Susan (lil_shepherd)
Posted at: March 13th, 2012 07:15 pm (UTC)

Cor! Bowing to real expert...

Posted by: parrot_knight (parrot_knight)
Posted at: March 13th, 2012 07:17 pm (UTC)

I'd not heard of the Holly Hobbie case, though I remember the character, her dolls, branded notebooks, paper and the like.

I don't think they'll win against the pub either, but am glad major_clanger reports that SZC's tactic is not looked on favourably by English courts.

Posted by: Susan (lil_shepherd)
Posted at: March 13th, 2012 07:23 pm (UTC)

The case, as I remember it (and I am not a lawyer, just a fan keeping an eye on the state of the law) involved a firm using the Holly Hobby characters on such things as lamp shades. The judge ruled (somewhat reluctantly) that this was not illegal as the Holly Hobby characters were associated with stationary and not furniture.

Posted by: Adilo Creamon (the_marquis)
Posted at: March 13th, 2012 05:51 pm (UTC)

I think most of the time with these things, eg the Hungry Hobbit cafe in Birmingham, it doesn't matter that the context of the trademark, or even the wording, is different to that in the matter at hand - the big legal teams of the likes of Tokline Enterprises etc will threaten to take folk to the cleaners knowing that the small businesses can't fight it through the courts no matter of what the actual likely legal outcome. Or in the case of this pub and the cafe the fact that they are trading in the UK and Saul paid for trademarks in the USA (and seems to have taken them for all sorts of names from LotR etc on the basis of having bought the rights to make films from JRRT).

However, I am not a lawyer so ...

Posted by: Simon Bradshaw (major_clanger)
Posted at: March 13th, 2012 07:09 pm (UTC)
Legal Clanger

I've seen some suggestions that SZC - the claimants - may not have appreciated that they are threatening not just a small pub but, potentially, the chain that owns it, and that said pub chain is already instructing its lawyers to respond. SZC may get a nasty surprise, as the English courts do not like groundless threats of litigation.

Posted by: parrot_knight (parrot_knight)
Posted at: March 13th, 2012 07:11 pm (UTC)

I'd noticed that Punch Taverns were taking legal advice...

Posted by: Susan (lil_shepherd)
Posted at: March 13th, 2012 07:19 pm (UTC)

I remember when the BBC sent a 'cease and desist' type letter to a fan club that was selling telepics. They got a letter back signed [name redacted], Solicitor pointing out the [then] state of the law. The BBC's legal department sent back a letter that began, "Dear Ms [name redacted]. As you know, the copyright of a photograph resides in the person who owns the negative film [and, no, we have no legal grounds to stand on, so just go ahead.]

Posted by: Simon Bradshaw (major_clanger)
Posted at: March 13th, 2012 07:22 pm (UTC)
I Am The Law!

If that's what the BBC said then it should have found lawyers who knew something about copyright law. The ownership of copyright is a complex matter and physical ownership of the negative may well be irrelevant. Mind you, the BBC has bad form for this sort of thing - just see the 'knitted Ood' case of a few years ago for more baseless threats that had to be withdrawn once proper legal advice was provided.

Edited at 2012-03-13 07:23 pm (UTC)

Posted by: Susan (lil_shepherd)
Posted at: March 13th, 2012 07:30 pm (UTC)

This was many years ago (late 70s/early 80s), and just after Spelling Goldberg had lost a case where unauthorised stills from 'Starsky and Hutch' were being used by commercial publications. The ruling was then that a still from a film is not copyrightable, because it's different medium. It was also ruled that if skill was needed to make a copy then said copy did not breach copyright. Of course, the law has changed since then, but those were the rulings the Beeb were following, as soon as they realised the fans knew them too. (In those days you needed a modicum of skill to get decent film pics from a TV screen - not the case today.)

Posted by: parrot_knight (parrot_knight)
Posted at: March 13th, 2012 07:25 pm (UTC)

I've been the recipient of correspondence concerning legal action over photographs in a previous professional existence. One threat of litigation from the owner of a photograph was easily batted down when we explained that our source had obtained their negative as a copy of a negative in the possession of an organisation which had borrowed the photograph from the would-be-litigant with permission to reproduce. The photograph's owner was flabbergasted but accepted that he had no grounds for action.

Posted by: daniel_saunders (daniel_saunders)
Posted at: March 13th, 2012 10:39 pm (UTC)

Less learned than the discourse here, but my great-uncle lived in a house called The Hobbits [sic]. I wonder if he would have been threatened with legal action too?

Posted by: parrot_knight (parrot_knight)
Posted at: March 13th, 2012 10:41 pm (UTC)

That would have been an interesting one. Beware receiving cheques at that address, otherwise you will be considered to be 'trading' and face legal action accordingly...

Posted by: catmint_1984 (catmint_1984)
Posted at: March 15th, 2012 11:08 pm (UTC)
Mary and dice

My boyfriend of 18 months lives in Southampton and we go to this pub fairly regularly. It is a brilliant place (apart from when they suddenly up the music to Asperger-unfriendly levels).

Part of the argument from The Hobbit's side (some of the campaigners are friends of mine) is that Tolkien himself has said that he did not invent the word "hobbit" and that he lifted from the work of a 19th-century writer. If this is really the case, then the suing guy has no case.


Posted by: parrot_knight (parrot_knight)
Posted at: March 17th, 2012 01:05 am (UTC)

Thanks for the link. I gather that the pub has been using some images for the film without authorisation for commercial purposes, but if it removes these it should be free to continue being its own Hobbit, I would have thought.