[Legal Opinion on Languages and Alphabets]
February 23, 1999
Re: Works of J.R.R. Tolkien (The Lord of the Rings)--Use of Tolkien's
Invented Languages, Words and Alphabet Symbols for Purposes of Linguistic
Analysis, Translation and Interpretation in Scholarly Journal (TyaliŽ
Tyelelliťva) and on Internet--Use of "Tengwar" Fonts in Journal--Copyright
This is in response to your request for a legal opinion regarding the above-referenced subject matter.
You and your colleagues publish a scholarly Journal, TyaliŽ Tyelelliťva (hereinafter "the Journal"), which focuses on the stories and linguistic innovations contained in J.R.R. Tolkien's trilogy, The Lord of the Rings. Your group is composed of a number of academic and scholarly individuals from around the world who share a fascination with the creativity, "invented languages" and works of the noted English author. The Journal presents critical comment on, and analyses, translations and interpretations of, Tolkien's writings and languages, the primary examples of which are "Quenya" and "Sindarin". In these activities, selected portions of the material are quoted verbatim. You and your colleagues also write original poetry and prose using individual words and letter symbols (alphabets--the "Tengwar" and the "Cirth") from the Tolkien languages, and want to publish your own calligraphic artwork and software fonts based on the alphabets, as well as analyses thereof. Members of the group also maintain Internet Websites, and publish thereon Tolkien-related articles containing such analyses, translations, interpretations and writings. There are also scholarly on-line discussions and exchanges of ideas concerning the author's work, including occasional academic-like disagreeements, with other interested scholars and students of literature. A grammar and a dictionary of Tolkien's languages is also contemplated and you hope to gain access to unpublished Tolkien material, and to see it someday published. The Journal is sold at cost,
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and there is no financial gain inuring to any of the participants in these endeavors, which are aptly described as a "labor of love"--love of the stories, words and languages, and the opportunity presented for a scholarly unraveling of some of the intellectual mysteries that may lie within.
Notwithstanding these altruistic and scholarly purposes, you and your colleagues have been criticized by various parties with respect to your use of the Tolkien materials in such endeavors. These parties generally appear to have academic credentials and interests, and include an attorney (who does not, by his own admission, practice intellectual property law). They assert various "copyright law" arguments against the use of individual words and alphabet symbols from Tolkien's works--including even the use of type fonts allegedly inspired by Tolkien's works (viz., the "Tengwar" font), in your activities. Regarding the Tengwar font, the font designer has indicated that he believes the Estate's permission is now required for its use.
The relevant works of J.R.R. Tolkien are currently published in this country by Ballantine Books, the paperback division of Random House, Inc., New York, and Houghton Mifflin (hardbacks), and are under term of copyright renewed in 1983 by members of the Tolkien family. Your Journal is published in the United States, as will be any book produced by you or the U.S. members of your group. Thus, the copyright laws of the United States govern with respect to these activities, in accordance with the Berne Copyright Convention. (This paper does not address the effect of the copyright laws of the various European Union nations on the activities of some members of your group who reside outside the United States.) You have not asked for an analysis or rebuttal of any Tolkien family legal position against your uses of the material in question, for the simple reason that no such position has yet been presented--only the general, unsubstantiated assertions described above by other parties, and sometimes attributed to the Estate.
Despite the verbosity and turgidity of the arguments of your detractors, most of the discussion to date has not been helpful in clarifying the basic issues presented. These are, in my view 1) whether the use of words from Tolkien's languages in the writing of new prose or poetry, and the use of individual letter symbols of the alphabets for analyses and calligraphic art purposes, violates copyrights in Tolkien's published or
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unpublished writings; and 2), whether quotations of short poems or text in English or in the invented languages of Quenya, Sindarin, et al., or reproduction of portions of Tolkien's calligraphic art--in the Journal or in scholarly exchanges on the Internet--qualify as "fair use" under the laws of copyright.
Based on the following, it is my opinion that none of the above-described uses performed or contemplated by your group violate existing copyrights in the works of J.R.R. Tolkien.
Applicable Copyright Law Principles
Three basic principles of U.S. copyright law applicable to the instant situation are:
1) Copyright protects original works fixed in any tangible medium of expression. 17 U.S.C. 102(a). Originality is essential, and a work has originality if it is "one man's alone." Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250 (1903). Copyright extends only to those components of a work that are original to the author. Feist Publications Inc. v. Rural Telephone Service Co., 111 S.Ct at 1282, 1293 )
2) Words, short phrases, names, symbols, typefaces, and variations of
lettering are not subject to copyright protection.† See 37 C.F.R.
202.1 Material not subject to copyright.
(a) Words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents;
(b) Ideas ... systems ... as distinguished from the particular manner in which they are expressed or described in a writing;
(d) Works consisting entirely of information that is common property containing no original authorship...
(e) Typeface as typeface.
(Emphasis added; see also, Circulars Nos. 1, 34 and 96, U.S. Copyright Office.)
February 23, 1999
(In addition, section 103 of the Copyright Act makes clear that copyright does not extend to "preexisting" or unoriginal material employed in a work, such as facts or data, although original selection and arrangement of otherwise uncopyrightable components may be protectable. Feist, supra.)
3) Copyright protection extends only to the tangible form of original
expression, and does not extend to any idea, concept or system, regardless
of the form in which it is described.† See Baker v. Selden,
101 U.S. 99 (1880); 37 C.F.R. 202.1(b), above; This concept is codified
at 17 U.S.C. 102(b):
In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.See also U.S. Copyright Office Circular 31. Thus, a basic premise of U.S. copyright law is that only the expression of an idea in a creative work can be protected, and not the underlying idea, concept, art or system itself.† Computer Associates v. Altai Inc., 982 F.2d 693 (2d Cir. 1992)
Preliminary Discussion--Family of Indo-European Languages
While not pretending to expertise in the field of historical or descriptive linguistics, and in no way intending to disparage the creativity of author J.R.R. Tolkien, I believe it must be acknowledged at the outset that Tolkien's "Invented" words and alphabet symbols are not unique, original creations, the likes of which have never before been seen in the world. There are some six thousand languages extant and in use in the world today according to the Encyclopedia Britannica. The development of human language has a long and complicated evolutionary history. It is well known that Tolkien, a philologist and professor of medieval literature whose work at the University of Oxford concerned Anglo-Saxon and medieval culture and literature, possessed extensive knowledge of, and familiarity with, the history and evolution of human languages, and of the Indo-European language family in particular.† (He even wrote poetry in Gothic and Anglo-Saxon and what might be considered dialects of Germanic languages of Gothic, Old Norse, and Anglo-Saxon.)
February 23, 1999
Celtic includes Gaulish, Goidelic, Brythonic, Old and Middle Irish, Cornish, and Manx (all dead languages), as well as Irish, Scots Gaelic, Welsh and Breton, still in use. The Teutonic or Germanic branch includes Gothic, Old Saxon, Anglo-Saxon, Old Norse (dead), Icelandic, English and German. The Indic branch includes Sanskrit, Prakrit and Pali (all dead), and Gujarati, Marathi, Hindi, Urdu, Bihari, Sindi, Bhili, and others. (The names of the Tolkien languages look and sound as if they belong on an Indo-European language chart. For example, the Tolkien names Sindarin, Quenya, Nandorin, AdŻnaic, and KhŻzdul, would, in my view, fit nicely beside Sanskrit, Prakrit, Marathi, Urdu, and Bihari.)
Tolkien's invented words not surprisingly show obvious similarities to words contained in certain of these languages. Tolkien words are often made up of elements (syllables) with which we are all familiar, e.g., Theoden=Theo+den, Elfhelm=Elf+helm, Butterbur=Butter+bur, Celebrian=Celeb+rian, to cite some obvious examples. Tolkien names such as "Gandalf", "Elfhelm", "Denethor", "Morgoth", "Gondor", "Gorbag", and "Theoden" all have an Old English, Gothic, or Old Norse ring to them, as do "Angmar", "Theodred", "Aldor", "Aragorn", "Dķnadain", "Gorgoroth", and "Guthlaf", to name a few. Compare "Starkad", a mythological Scandinavian hero, with Tolkien's mighty mountain "Starkhorn" (a combination of "Starkad" and "Matterhorn"), and the names of deities of Scandinavian mythology "Loki", "Balder", "Thor", and "Odin", with Tolkien names "Loni", "Baldor", "Thorondor", and "Oin". Is "Voluspa" a Scandinavian tale of a period of primeval chaos, or the name of a Tolkien hero or heroine? Are "Ginnungagap", "Jotunheim", "Niflheim" and "Muspellsheim" places of Scandinavian lore or Tolkien invented places? "Yggdrasil", and "Nidhogg", Old Norse, Celtic or Tolkienese?
Further, is "Mabinogion" a Tolkien-invented word, or a collection of Welsh prose tales? Is "Osgiliath" a Tolkien or Welsh place? Is "cywydd" a flexible verse form used by 15th century Welsh poets Glyn Cothi and Guto'r Glyn, or are these words and names Tolkien invented? Are "Owain Cyfeiliog", "Goronwy", and "Glan Geirionydd" names of Welsh poets/writers? Or Tolkien characters like "Galadriel", "Eriador", "Eothain", "Gilthoniel", "Rohirrim", "Beruthiel" and "Daeron".
Even linguistic scholars might hesitate in answering these questions, and only they (and Tolkien) would know for certain whether such names and other Tolkien words actually occur in any of these Indo-European languages (dead or still in use). I would think so.
February 23, 1999
With regard to the two main alphabets, the Tengwar, in my view, seems to be on the order of "mere variations of typographic ornamentation [or] lettering." 37 C.F.R. 202.1 (1974), quoted above. The Cirth seems obviously inspired by a number of ancient languages: Proto-Canaanite, Semitic, early Etruscan, Germanic Rune, Arabic, and even ancient petroglyphic and pictographic symbols are all apparent in the Cirth and other Tolkien alphabets. For example, compare the Etruscan "", the early Greek "", the Germanic Rune "", and the Classical Roman " F " with Tolkien's "".† Other examples: the Proto-Canaanite "", the Phoenician "", the Early Greek "", the Etruscan "", the Classical Roman " T ", the Germanic Rune "" and Tolkien's Cirth "".† No matter how inventive one may be in the making of alphabet symbols, one must use curls, dots and lines (straight or angled).
The point is simply that Tolkien had no choice but to borrow freely from the family of languages to create his invented words and letter symbols. Indeed, given the large number of languages, alive and dead, that have been and are in use today (as well as the obvious physical limitations of human anatomy), it would appear almost impossible to conceive sounds, symbols or words that have not been used before by humankind or that, in the case of words, do not contain previously used syllables/morphemes. These basic root elements of Indo-European languages are thus part of the public domain of human language. The combination of these fundamental elements into slightly different words and forms does not, in my view, demonstrate sufficient originality to qualify as copyrightable work. The U.S. Copyright Office agrees.
The copyright law principles cited above support these conclusions. In the following, Part 1. (a) addresses the use by your group of individual Tolkien-fashioned words, alphabet letter symbols and type fonts in its analysis and interpretative work, in the writing of new prose or poetry, or in the creation of new calligraphic art. Part 1. (b) applies the idea/expression merger doctrine to the issue, and Part 2. discusses the use of verbatim excerpts from Tolkien text, poetry, or calligraphy in the scholarly, critical or interpretative activities of your group, under the fair use doctrine.
February 23, 1999
1. a) Words, Phrases, Typefaces and Familiar Symbols not Protectable, do not Satisfy Requirement of Originality.
This principle is applicable to the instant situation. It is well established that words, metaphors and phrases are not protectable under copyright law, for the lack of sufficient originality. See 37 C.F.R. 202.1 (1974), above. See also Alexander v. Haley, 460 F. Supp. 40 (1978) ("material traceable to common sources" not protectable), Nimmer on Copyright, Sec. 1300, et seq. (1991 ed.).
While Tolkien's invented language words are not "ordinary" English words,
as pointed out above, they are made up of fragments, components and elements
(syllables) of words of either extant or dead languages (common, or public
domain sources). I am aware of no legal authority to support a claim by
the Estate that the individual words or alphabet letters/symbols of Tolkien's
languages, as distinguished from the totality of the form of expression
set forth in the works, are the subject of copyright protection. Indeed,
the Supreme Court has spoken to the issue of how far copyright protection,
once established, extends. See Feist, supra, @ 1289, where the Court
The mere fact that a work is copyrighted does not mean that every element of the work may be protected.† Originality remains the sine qua non of copyright, accordingly, copyright protection may extend only to those components of a work that are original to the author. (emphasis added)
If every word of the "invented" languages contained in Tolkien's works were protected, then "every element of the work" would be protected, contrary to the holding of the Court.
What is original to Tolkien (and all writers) and thus copyrightable, is the form of expression of words in prose or poetry, not the individual words. Thus, while the copyrighted works of Tolkien are protected from copying in the totality of their copyrighted form (absent fair use), the individual words in themselves are no more copyrightable than the words of any book.
February 23, 1999
Accordingly, anyone may use such words to create new forms of expression. The use of these words by your group to write new poetry or prose utilizing such words violates, in my view, no Tolkien copyrights, and is consistent with First Amendment rights enjoyed by all American citizens with respect to the use of language.
Similarly with respect to the individual letter symbols of the alphabets, which despite all their angles and squiggles are not individually original enough to qualify for copyright protection, even if they didn't often resemble the earlier linguistic efforts of numerous cultures. In my view, Tolkien's alphabet symbols come from common sources, appear to be mere variations of these public domain language elements and not copyrightable because of 1) a lack of sufficient originality and 2), because they are "mere variations of typographic ornamentation [or] lettering". See 37 C.F.R. 202.1, quoted above.
Finally, with respect to typeface, type font or letter-form designs, it is well established in the United States (as opposed to Britain and Germany) that such are utilitarian in nature and are not copyrightable. It is true that a recent Copyright Office regulation and at least one federal court have recognized copyright in software programs containing such designs, even though the end result or intended use involves uncopyrightable elements or products. But it is the original computer program instruction codes through which the fonts are manipulated and displayed on computer screens that qualify the program for copyright protection, and the well-established rule is still in effect with respect to typefaces, type fonts or letterforms as such. See Adobe Systems, Inc., v. Southern Software, Inc., No. C95-20710, (N.D. Cal, 1999); Copyright Office Final Regulation, Registrability of Computer Programs That Generate Typefaces, 37 CFR 202 (amended). Thus, reproduction or copying of typefaces, type fonts and letterforms or other unregistrable elements by means other than through the unauthorized use and operation of a computer software program do not constitute infringements of copyright.
1. (b) Ideas, Concepts, Systems, Processes, etc. not Copyrightable--Merger of Idea with Expression of Idea
Ideas, concepts, and systems cannot be copyrighted. See 17 U.S.C. 102(b) above, and Baker, supra. When an idea and its expression are indistinguishable, or "merged," then
February 23, 1999
the expression will not be protected. Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (1983); Apple Computer, Inc. v. Microsoft Corp., F.3d 1435 (1994); Nimmer on Copyright, sec. 2.18[c], 13.03[b]. Whether the merger doctrine is deemed a bar to copyright protection, or simply a defense to the charge of infringement, such copyrights are characterized as "weak, since the expression and the subject matter converge." Franklin Mint Corp. v. National Wildlife Art Exch., Inc., 575 P.2d 62 (1978).
Tolkien's languages presumably are based on some kind of underlying grammatical concept or system, viz., the idea, concept, or art underlying the language. Your group wants to better understand the underlying concept, idea or art of these languages (and, indeed, whether there be such). You do so that you may use the languages in new and creative ways, not to misappropriate the copyrighted form of Tolkien's expression.
The underlying idea or art of Tolkien's languages are expressed through the words and the letters he uses, the expression. It is submitted that the expression of the idea of any human language, natural or invented, cannot be separated from the words, phrases and sentences of that language, i.e., that the idea or concept of the language is embodied in the words of the language itself and cannot be otherwise expressed. As stated in U.S. Copyright Office Circular 32:
"The ideas, plans, methods, or systems described or embodied in a work are not protected by copyright."Where the expression of an idea cannot be separated from the idea itself, it (the expression) is held by the courts to be merged with the idea, and the expression is thus not protectable. Baker, supra, Data East USA, Inc. v. Epyx, Inc., 862 F.2d 204 (1994); Kepner-Tregoe, Inc. v. Leadership Software, Inc. 12 F.3d 527 (1994).
Thus, in order to analyze, translate and interpret the Tolkien languages, to get at the underlying idea or art of the languages, your group cannot avoid using the words and symbols of the languages themselves, since the idea, the art and the expression thereof are merged and embodied in the words and symbols, and cannot be separated therefrom. See Morrissey v. Procter & Gamble Co., 379 F.2d 675 @ 679 (1967) where the court held that copyright will be denied to any given form of expression of an idea if the nature of the idea is sufficiently narrow so that "only a limited number of forms of expression of the idea are possible." The court concluded that in such circumstances:
February 23, 1999
... it is necessary to say that the subject matter would be appropriated by permitting the copyrighting of its expression. We cannot recognize copyright as a game of chess in which the public can be checkmated."To preclude the use of the individual words and/or letters "created" by Tolkien by scholars attempting to study, analyze and interpret his writings could, in my view, be properly described as a "checkmating" of the public as a result of copyright claims. Thus, it is my conclusion that such elements of Tolkien's works may be utilized by your group in their scholarly endeavors without infringing Tolkien's valid copyrights in the totality of the works themselves.
(It should be noted in this connection that the same principle applies to the copyrightability of computer programs. "A computer program is a set of statements or instructions to be used directly or indirectly in a computer." 17 U.S.C. 101. Both computer operating system programs and applications programs have been held to be copyrightable. Apple Computer, Inc. v. Franklin Computer Corp., supra. Copyright protection is provided to the identified original elements of expression contained in the program, i.e., the instruction codes--the source, object or microcodes) used to implement the idea, system or process that the program is designed to run. But there is considerable controversy and confusion with regard to how far copyright extends in this area, particularly with respect to computer languages. Distinctions have been made between "programming languages" and "command languages" ("sets of instructions"). The Copyright Act recognizes copyright in computer programs as "sets of instructions", 17 U.S.C. 101. Numerous commentators have noted that the courts may have gone too far in failing to recognize the idea/expression dichotomy, and that the Supreme Court will have to address these issues to ensure that inappropriate copyright monopolies are not granted in this crucially important area of science and technology. Computer "languages" such as "C++", BASIC, Pascal, FORTRAN, COBOL, which express abstract principles of computation, are considered noncopyrightable, being regarded as synonymous with the systems and ideas they are meant to implement in a computer.† In any event, the copyrightability of computer programs ("sets of statements or instructions") is not determinative, in my view, of the instant question, since the idea or system of a human language, natural or "invented" from natural languages, can be expressed and implemented only in the words of that language (merging of idea with expression), whereas the idea or system to be implemented by a computer program may be expressed and implemented through various and different sets of original operating instruction codes [accord: the "Turing Principle".]
February 23, 1999
Also of relevance in this context is the so-called "open source" movement among computer technology companies, which has resulted in computer languages and systems such as PERL and the Linux operating system being made universally available free of charge to programmers. Sun Microsystems, Inc., announced in December, 1999, that it would allow programmers to download the source code to the Java programming language with a free license that gives them a wide latitude to modify it.)
2. Does the contemplated use of quoted material from Tolkien's work, including calligraphy, for scholarly, aesthetic or critical purposes qualify as Fair Use?
While it is the view of the writer that the above-described scholarly
and analytic uses of individual words, alphabet symbols and/or type fonts
by your group would not violate Tolkien copyrights in published or unpublished
works as a whole, it is necessary to consider whether, in addition, the
verbatim quoting of material (sentences, verses or paragraphs) from the
author's work for such purposes falls within the fair use exemption. The
common law doctrine of fair use placed some important limitations on the
exclusive rights of copyright owners in favor of fostering certain activities
in the public interest, such as educational activities, literary and social
criticism, parody and First Amendment activities. The doctrine was given
statutory recognition for the first time in The Copyright Act of 1976,
Title 17 U.S.C. 107, which provides as follows:
Sec. 107, Limitations of exclusive rights: Fair use
††† Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching..., scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
††† (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
††† (2) the nature of the copyrighted work;
††† (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
††† (4) the effect of the use upon the potential market for or value of the copyrighted work.
February 23, 1999
The four factors are traditional and are considered to be illustrative rather than exhaustive.
Regarding unpublished material, a 1992 amendment to Sec. 107 added the
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. (Emphases added)
This amendment followed a series of cases following Harper & Row, Publishers Inc. v. Nation Enterprises, 471 U.S. 539 (1985), which arguably had established a per se rule against finding fair use in cases involving previously unpublished materials. Its purpose was "to clarify the intent of Congress that there be no per se rule barring claims of fair use of unpublished works. H.R. Rep. No. 102-286 (1992). Thus, fair use may be found upon consideration of all relevant fair use factors, including the traditional four, regardless of whether the material is published or unpublished.
In the 1976 Judiciary Committee Report on the House amendments to the bill that became the Copyright Act of 1976 (H.R. Rep. No. 94-1476, pp. 65-68), the Committee, describing the problem of fair use, stated, inter alia:
...The examples enumerated at page 24 of the Register's 1961 Report [Register of Copyrights], while by no means exhaustive, give some idea of the sort of activities the courts might regard as fair use under the circumstances; "quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations...
"Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts...
"The Committee has amended the first of the criteria to be considered--'the purpose and character of the use'--to state explicitly that this factor includes a
February 23, 1999
consideration of† 'whether such use is of a commercial nature or is for nonprofit educational purposes.' This amendment is not intended to be interpreted as any sort of not-for-profit limitation on educational uses of copyrighted works. It is an express recognition that, as under the present law, the commercial or non-profit character of an activity, while not conclusive with respect to fair use, can and should be weighed along with other factors in fair use decisions." (Emphases added)
Application of the Four Traditional Principles
Just as musicologists and other researchers may use reasonable extracts of copyrighted works in preparing a new scholarly text or commentary, it would appear beyond question that the verbatim use by your group of excerpted textual material from Tolkien's works or unpublished materials for the purposes enumerated above qualifies as fair use under the language of the Act and the common law application of the doctrine over the years.
First, considering "the purpose and character of the use," your group's purposes fall squarely within the express language of section 107. Criticism, comment, scholarship and research, in the form of scholarly interpretation, analyses and translation are the very reasons for which the Journal was instituted, and what its academically and intellectually qualified contributors do. The character of these activities is clearly scholarly in nature and non-commercial, as none stand to gain financial benefit from these activities. "Fair use distinguishes between a true scholar and a chiseler who infringes a work for personal profit."† Harper, supra.† Also, this use is of a "productive, transformative" nature, and results in a different original work that adds new meaning, character or purpose.†† See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).† This characterization would include a scholarly work in book form, intended for educational or linguistic analysis use.
Second, the nature of the copyrighted work. It is conceded that Tolkien's works in general are characterized as fiction and fantasy, rather than a factual one. While factual works are traditionally permitted broader fair use, the nature of the contemplated uses and purposes by the group is functionally different than those of the author, and won't, in my view, affect adversely the market for Tolkien and Tolkien-related works. The contemplated uses being scholarly in nature, they do not compete with the author's work, and the Estate is in no way precluded from producing its own scholarly or analytic publications dealing with the same subject matter.
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Third, the proportional amount and substance of the use. In terms of copying actual text verbatim from the works, the "amount and substantiality of the portion used in relation to the copyrighted work as a whole" has been and will be very small. While the courts will look at not only the quantitative substantiality, but also the qualitative substantiality of the material claiming the fair use exemption, it is submitted that the quoting by the group of short poems (even if in their entirety) and paragraphs of text is a necessary function of the proper analysis and interpretation of the author's work in order to better understand the languages, their "idea" and their "art" as a whole. In any event, the amount to be copied will be small in proportion to the works as a whole, and will not exceed the amount reasonably required to carry out these analytic and interpretative activities.
Fourth, the effect of the uses of your group upon the actual or potential market for, or value of, the copyrighted work. This cannot be anything but salutary, in my view. As indicated above, the work of the group and others (especially over the Internet) has already helped stimulate considerable intellectual activity and interest with respect to Tolkien's works and languages. And if, as is expected, a major motion picture is produced, it is difficult to see how such scholarly activities would adversely impact upon the interests of the copyright holders or the film's producers. Indeed, any clarification by your group of the ideational basis, structure or foundation of the Tolkien languages could, at best, be beneficial to both the Estate and to any commercial exploiters of the author's works. At worst, in my view, there would be no impact. Others, including the Tolkien family, can ignore or disagree with the analyses, translations and interpretations of your group of writers, and are in no way precluded by your efforts from publishing their own such works. (This conclusion applies as well to the publication of a dictionary of Tolkien words.)
In conclusion, under the fair use doctrine as well as the First Amendment to the Constitution of the United States, your group may, in my view, act in accordance with the above without fear of infringing copyrights held by the Tolkien family. I believe that this conclusion is consistent with the Constitution and the intended purpose of section 107 of the United States Copyright Act of 1976, which places reasonable limitations on the monopoly of copyright protection, for the public's benefit.
February 23, 1999
The human ability to communicate through language separates us from other species, and is the basic building block of all human knowledge. In my view, it is legally unsustainable and intolerable to maintain that the copyright laws allow one to "corner the market" on the root elements of human language, and thus preclude others from working intellectually with such languages, words and symbols. It is doubtful that Tolkien himself would have taken such a position, finding instead much intellectual stimulation and much enjoyment in discoursing with groups such as yours over the vagaries of his "invented languages."
The above represents the opinion of the undersigned, based on interpretation of law and cases cited, and what he regards as common sense. As there appears to be no case law directly in point at this time, it is not herein asserted that, in the event of litigation, a court of competent jurisdiction would necessarily adopt the conclusions set forth above as a matter of law.
If I can be of further assistance, or if further clarification is desired, please do not hesitate to contact me.
Robert P. Wade
(former General Counsel,
National Endowment for the Arts)
Return Home.Tyalie Tyelellieva / LisaStar@earthling.net / published September 2000
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