[DropInIn]

Notice I said "at best it's appropriation"?

The form is explicitly that defined by tolkien, with so many elements not found in the traditional forms and elements missing that are found in the traditional forms to be viewed as explicitly copied from Tolkien.

Your position is like saying that it wouldn't be any form of IP theft to use all the elements of Diablo IP including names, culture, historical features and other aspects so long as it wasn't actually in the world of Diablo... and I'm pretty sure the IP law is settled on that matter, isn't it?

[thefurdrake]

Hmm.

Yeah, I thought about this a bit more.

There are definitely cases where I've seen elves ripped off so thoroughly that it was clear the author put zero thought into them as a race/species, lifting them straight out of Rivendel. That's obviously not cool.

However, I don't think most instances of elves as Tall Fair Folk hit that bar of being straight-up lifted. I don't see very many instances of "names, culture, historical features" being taken from Middle Earth, and that would OBVIOUSLY be unacceptable.

> I'm pretty sure the IP law is settled on that matter, isn't it?

Yeah, it sure is! The owners of the Tolkien empire are quite active about pursuing litigation against those who infringe upon their rights. They even win a lot of cases! However, I've yet to hear of a storm of litigation sweeping through the fantasy writing industry involving them going after theft of species in peoples' stories. I'd be super, super interested to see some cases where this has happened, if you believe it's been settled some other way.

[DropInIn]

https://en.m.wikipedia.org/wiki/Elves_in_Middle-earth

Elves were not tall folk, that came from an interpretation of icelandic folklore where he lumped that variant in with Giants... in almost all traditional lore elves were either diminutive like Gnomes or were at most the dame size as humans. Many other features are also from specific variants that he amalgamated in but most would not consider to be in the "main" folklore.

I had a longer response but accidentally refreshed the page and have no interest in typing that much again on my phone.

As for cases, DnD changed thier "races" in response to violations raised in court iirc. They pushed right to the line as close as possible and that was long before we reached modern IP law which is exceedingly more stringent than back in the 80s, right?

[thefurdrake]

> As for cases, DnD changed thier "races" in response to violations raised in court iirc. They pushed right to the line as close as possible and that was long before we reached modern IP law which is exceedingly more stringent than back in the 80s, right?

Yes. They also go after orgs that were printing commemorative coins and succeeded. In this instance, they went after TSR for straight ripping things for their game.

That still doesn't address what I was referring to, however. I haven't seen any push by the Tolkien Society to go after this alleged "stealing" of Tolkien's ideas through the inclusion of Tolkien-distinct elves (and they are very distinct from their source, as you pointed out) or other species.

Which is interesting, because they Tolkien Society actually has the audacity to claim you're not allowed to write fanfiction:

"[...]This means that you cannot copy any part of Tolkien’s writings or images, nor can you create materials which refer to the characters, stories, places, events or other elements contained in any of Tolkien’s works."

Aside from being so absolutely full of themselves, they still aren't engaging in attempting to stop authors from "stealing".

Because they have no legal basis for it and know it.

Because it's not actually "stealing" when authors adopt them into their worlds if they're not, as you said, taking names, culture, [and] historical features. There's no legal grounds and they know it.

The Tolkien Estate recently rewrote their "rules" in the last couple years, reflecting a much-stronger stance on derivative works. And yet, I don't think you'll be able to show me many instances of them "protecting their IP" against authors.

I've looked.

[1] https://www.tolkienestate.com/frequently-asked-questions-and...

[DropInIn]

Sounds like your not actually arguing against my point but rather just arguing against IP law.... those are two very different things....

[thefurdrake]

Yeah, I guess so! My bad for trying to fall back to something quantifiable rather than opinion and conjecture. Definitely not relevant.

[DropInIn]

Those operating the estate have a fiduciary duty to the stakeholders, meaning they can't pursue litigation where costs would exceed potential value nor when it would have a more significant negative impact on value than protections.

From this most instances of infringement do not justify legal action as the parties in violation have little to no money (fan fictions etc. Can't get blood from a stone) and in many cases the pursuit of legal action would "harm the brand" in a fashion that would far exceed the value (a 1% reduction in consumer engagement is hundreds of thousands if not millions in value).

Copyright is not the same as trademarks, you don't have to pursue every single violation in order to maintain protections.