March 28, 2012
Case in point: A recent copyright dispute over The Hobbit, the film adaptation of which is scheduled to be released later this year (the first of two parts, anyway).
What’s the copyright dispute over?
Actually, it’s over the name of a local pub in Southampton, England.
The pub is named “The Hobbit” and has been for the past 20 years, and uses the names of several characters from J.R.R. Tolkien’s works such as The Hobbit and The Lord of the Rings in its signage and on its menu (for instance, there are “Frodo” and “Gandalf” cocktails on its menu).
The Saul Zaentz Company (SZC) owns the worldwide rights to several brands associated with author JRR Tolkien, and has demanded that the pub change its name and remove all other references to Tolkien characters.
The pub can certainly try to make a case that the use of The Hobbit name is fair use exception to copyright law…except the United Kingdom has no such exception (its analog “fair dealing” is far narrower in scope and certainly wouldn’t allow this type of use).
Even if there were some kind of legal defense available to the pub, it’s highly doubtful that it could afford the prolonged legal battle required to make such a defense.
Is this the latest example of overly aggressive copyright enforcement by big Hollywood intellectual property holders?
In SZC’s defense, it and other IP holders need to be proactive in defending their copyrights so that there isn’t a further loss of jobs in the field.
Such, anyhow, is the logic used by the industry to justify its aggressive enforcement activities – to prevent the loss of income that will lead to the loss of jobs for people such as actors.
So, the reasoning goes, by enforcing its copyrights, the industry is protecting the artists.
A big flaw in that reasoning here is that two actors from The Hobbit films – Sir Ian McKellen (known for playing the role of Gandalf), and Stephen Fry – have offered to pay the copyright license fee on behalf of the pub.
The actors have also been very critical of the company’s actions.
So, to answer my earlier question: yes, it seems that SZC’s action is the latest example of overly aggressive copyright enforcement.
Given the large public backlash against the threats, it also seems that any economic benefits from SZC’s actions are far outweighed by the loss of goodwill that it and the industry at large will suffer because of this.
Why did this enforcement action meet with such disaster when others have been successful?
For the same reason that the industry’s recent efforts to pass legislation (SOPA and PIPA) did: the Internet, and more prominently, social media.
The Hobbit pub leveraged its social media outlets to its full advantage.
In addition to using its Facebook and Twitter accounts, it started a Facebook group called “Save the Hobbit, Southampton” that exists for the sole purpose of gaining supporters against SZC’s legal action.
The group, which was started on March 9, 2012, currently has almost 60,000 Likes.
This story should serve as a lesson to others who find themselves on the business end of an “overly aggressive copyright enforcement” action: employ social media to its full extent.
If the public agrees that the action is another overly aggressive copyright enforcement by the industry, the IP holder will find itself in the same position as SZC has in The Hobbit pub dispute.
Instead of quietly dealing with what should have been a standard transactional legal matter, the copyright holder finds itself on the losing side of a public relations war.
As social media gains ever increasing prominence, ever more copyright enforcement efforts will likely turn out this way.
The question, then, is whether the IP industry will rethink its philosophy on enforcement, or simply stay the course and further torpedo its standing with the public.