By now, I will guess that most of our audience has heard about the lawsuit that the Tolkien estate filed against Warner Brothers for its marketing of Lord of the Rings products. If you haven't heard, The Hollywood Reporter has a pretty good summary of the case as well as a link to the court filing. I think fans of J.R.R. Tolkien's The Lord of the Rings owe it to themselves to take a look. Don't be intimidated; the salient bits of the filing itself are short and written in almost plain English.

The Tolkien estate is asking courts to define the contractual limits on Warner Brothers marketing rights to The Lord of the Rings and The Hobbit, stating that the original marketing rights only included "tangible property." They charge that Warner Brothers has gone well beyond those rights. I have no idea what exactly tangible property means in legal terms, but it is hard for me to see how United Artists, the original purchaser of the film rights, could have believed they were buying rights to create Lord of the Rings-themed hotels, restaurants, amusement parks, and online slot machines. (The slot machines exist. The hotels, restaurants, and amusement parks have been patented by Warner Brothers.) The lawsuit argues that Warner Brothers is trying to convert what was a limited right to profit from J.R.R. Tolkien's intellectual property into an unlimited right to use The Lord of the Rings and its characters as they see fit.

It isn't just the Tolkien estate and its charitable arm that are suing Warner Brothers; it is also HarperCollins, the holder of the English language rights to both Lord of the Rings and The Hobbit. There is a lot at stake here for them as well. You now have a tug-of-war to decide who controls the iconography of Tolkien's masterworks and their place in our society. On the one side you have the estate of the original creator and the publisher of his works. On the other side, there is the company behind one of the largest film franchises in history.

It is worth pointing out that it was the production company that folded at the end of round one between these two juggernauts. After laughably claiming that they didn't make any money at all on three of the highest-grossing films of all time, the production company coughed up 7.5 percent of their profits to the Tolkien Estate in order to settle a lawsuit that paved the way for the filming of The Hobbit, according to the French paper Le Monde. We will see if they try to pull the same "we didn't make any money" stunt on the next three films.

This kind of behavior is par for the course in Hollywood. Perhaps the most famous example is Art Buchwald's lawsuit against Paramount, which he accused of stealing his idea for the Eddy Murphy film Coming to America. Buchwald proved that Paramount used "unconscionable" accounting practices when they claimed that the film didn't make any money in order not to pay him. Paramount settled with Buchwald before their appeal because they did not want any case law determining what accounting practices must be used when determining a movie's profitability for contract purposes.

Based on their track record, there is absolutely no reason to believe that Warner Brothers has any intention of limiting their use of the Lord of the Rings to only tangible goods. The Hollywood business model, when it comes to paying people for their work or their intellectual property, is pretty clear. Take what you can get away with and let them sue you to make you follow the contract. Then lie if necessary to keep from having to pay them any money.

This clash is also a fight between organizations with two very different goals. HarperCollins and the Tolkien estate have the long-term interests of of the books in their sights. Of course, one reason is because this is their chief source of income. Movies, spin-offs and fan fiction are wonderful if they lead fans back to the source text. But Peter Jackson's films are a different matter. They threaten to become source texts in themselves that eclipse the original books. This is the fear that Christopher Tolkien, the head of the Tolkien estate, spoke about when interviewed by the French paper Le Monde in July. (GeekDad readers pointed me to Sedulia's translation of his interview when I wrote about my hope that Peter Jackson will attempt to film stories from the Silmarillion.) Christopher Tolkien told Le Monde that he didn't like the films because "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."

Both HarperCollins and the Tolkien estate want the book to dominate the thinking and iconography of The Lord of the Rings. On the other hand Warner Brothers is interested in creating the largest possible entertainment juggernaut in order to maximize their profits from the film. This means they have every intention of dominating as much of the cultural thinking about Tolkien as they can with their movie, videogame, and spin-off empire. As an American corporation owned by the publicly traded Time Warner company, Warner Brothers has one and only one mission: maximize their profits for their stock holders. They are single-minded in that mission. So if creating Lord of the Rings-themed slot machines means higher profits, there is very little that would hold back a publicly traded entertainment company from producing slot machines. This seems to have been the last straw for the Tolkien family. Christopher Tolkien mentioned the slot machines in the Le Monde interview in July. The lawsuit specifically goes after Warner Brothers for the slot machines along with videogames only available online. I would assume this is directly targeting Warner Brothers' MMO Lord of the Rings Online.

A personal favorite example of the insane outcomes of this kind of marketing by movie studios comes from the film The Lion, The Witch and The Wardrobe based on the book by J.R.R. Tolkien's friend C.S. Lewis. Anyone who knows anything about the Chronicles of Narnia knows that they are allegorical, with the lion Aslan standing in for the Christian religion's savior Jesus, who Christians believe is God come to Earth. I have in my very own possession an Aslan toothbrush released in conjunction with the film. I have never used it, but find the delicious ironies that led to the marketing of what is in effect a toothbrush with a picture of God on it to be quite hilarious. I smile every time I see it on my dresser.

For those of us mere mortals who could only dream of figures like $80 million or 7.5 percent of the profits from the Lord of the Rings movie franchise it might be easy to dismiss Christopher Tolkien and the Tolkien estate as simply cranky people upset about not being given their fair share of the loot, but for the Tolkien family there is much more at stake here than just money. While toothbrushes and other tangible objects might be out of Christopher Tolkien's control, he doesn't want to see the intellectual tour de force that is his father's work reduced to slot machines and hack-and-slash online games. As he said to Le Monde, "The chasm between the beauty and seriousness of the work, and what it has become, has gone too far for me. Such commercialization has reduced the aesthetic and philosophical impact of this creation to nothing."

For myself, I can't say that I see the same amount of damage that Christopher Tolkien does in Peter Jackson's films, although I do have my reservations. On the other hand, I am sure that if I were in Christopher Tolkien's position I would do the exact same thing to protect my father's work. As a veteran of World War I, Tolkien's writing valued human relationships, honored the environment, and warned against the blind worship of technology. Hack-and-slash videogames, slot machines, hotels, restaurants, and amusement parks just have no place in representing his books. As fans of J.R.R. Tolkien's thought and work, let's hope the courts agree.