Who killed ‘The Hobbit’, and Can They? Intriguing Whodunnit begins…

An interesting legal stoush has caught our eye this week, between Saul Zaentz Company (SZC) which owns the worldwide film, stage and merchandising rights to The Lord of the Rings trilogy and The Hobbit, and the owners of a theme pub called The Hobbit, located in Southampton, England.

The newspaper reports are to the effect that the pub’s ‘theme’ and ‘name’ must be changed for ‘copyright’ reasons.

Apparently, the pub has been called The Hobbit for more than 20 years and is popular with students. It now faces having to axe its themed cocktails, interior artwork and even the pub sign.

The publican feels it has no choice but to meet these demands given a lack of resources to fight the dispute. An Internet campaign has apparently been launched to save the pub.

Naturally, this has aroused our Friday afternoon ‘fight for justice’ instincts, with the very heavy caveat that we haven’t seen the pub, the claim, or even verified the newspaper report…

That said, if we take the above report at face value, copyright lawyers will have their instincts on high alert. Surely, for example, copyright would not subsist in ‘The Hobbit’ on the basis that it would fail the de minimis test. In the same way that EXXON was held to be too insubstantial a work to be a literary work protected by copyright, so too one would think ‘The Hobbit’ likely to fall into a similar category.

It follows from this, that if there is no copyright in The Hobbit, then anyone can use the name, whether for a pub or otherwise.

However, people frequently mix up copyright law and trade mark law, so perhaps the report we have seen should properly refer to trade mark infringement. The authorities are clear that mere words are more appropriately protected by Trade Mark law. This is based on the theory that a trade mark is designed to protect a ‘sign’ or ‘badge of origin’ of a particular good or service.

Even if that is the case here though, the issues would not be clear cut. Let’s say there is a trade mark for The Hobbit (we haven’t checked, so readers, let us know what you find). A trade mark is not a monopoly over the world. It is confined to particular categories of goods or services. Would a pub called The Hobbit likely transgress one of these categories? Well, who knows because we haven’t checked. But it’s the kind of question a lawyer would want to explore straight away.

Similarly, we also would want to test any claim that the pub’s “themes” infringe copyright. Why? Well, you can’t protect a mere theme with copyright law.

Proving copyright infringement requires the plaintiff to identify the work complained of (eg the original artwork), and after dealing with boring bits like ‘who is the author?’ and ‘does the complainant truly own the work?’, comparing it to the alleged infringing work. The court needs to be satisfied that there has been copying of a substantial amount before

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infringement can be found.

Accordingly, an artist inspired by J R R Tolkein’s books, who flings together a terrific clay sculpture of Frodo without reference to anything other than imagination, will not infringe copyright in, say, an Elijah Wood doll sold at Toys-R-Us. It’s the personal rendering derived from the book which has inspired this work. There is no copying involved.

It does make one wonder about the line to be drawn when film franchises appropriate the rights to hitherto much loved books, and then seek to enforce those rights.

All we would recommend to such IP owners is this: Don’t over-reach. Your rights will be restricted to the precise works created for the film franchise and associated merchandise. You can’t own the sentimental renderings of fans who pay homage to their favourite characters, so long as these renderings are created independently of your works.

Separate from traditional elements of IP law though, we should point out that claims such as passing off (and usually associated statutory rights) exist to prevent certain impermissible associations. For instance, a ‘themed’ pub could be at risk of a claim that it has inappropriately represented its endorsement by a movie franchise, if this is not the case. But then again, it’s hard to ‘pass something off’ if you were there first…

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