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Post by geoffrey on Apr 7, 2014 13:32:28 GMT -6
We all know that later printings of the OD&D set expunged many references to stuff from Tolkien. As a case in point, balrogs were dropped from the rules.
I just discovered through google that the Diablo computer games include balrogs, spelled just like Tolkien spelled it: B-A-L-R-O-G.
Has the Tolkien Estate simply bowed to the inevitable here? A third of a century ago, it contacted Gary Gygax over his use of balrogs (among other things) in his little D&D game. Now the Estate is apparently blase about balrogs in the Diablo game, which I imagine must be lucrative and popular since even I (with my zero interest in computer games) have heard of it.
So why not publish D&D stuff with balrogs in it?
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Post by Finarvyn on Apr 7, 2014 13:56:39 GMT -6
I wonder if (1) they are unaware of it, or (2) if someone showed that maybe it wasn't a word that Tolkien created. I know, for example, that "orc" is another word that existed before JRRT used it and so others can use orc without permission.
Or maybe using "balrog" wasn't the problem, but the combination of balrog with nazgul with ent and so on might have been "too similar" for their lawyers.
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Post by waysoftheearth on Apr 7, 2014 16:13:23 GMT -6
So why not publish D&D stuff with balrogs in it? Because it is someone else's IP, and the IP holder has explicitly said don't do that. |
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Post by Stormcrow on Apr 7, 2014 18:09:19 GMT -6
It's not the Tolkien Estate; it's Middle-earth Enterprises, formerly known as Tolkien Enterprises.
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Post by Falconer on Apr 7, 2014 19:47:05 GMT -6
A few possibilities:
1. If Saul Zaentz wanted to sue Blizzard, he would have to prove that Tolkien Enterprises possessed exclusive rights to Tolkien’s Balrogs in video games, and that the Balrogs in Diablo did, in fact, resemble Tolkien’s Balrogs. OD&D made the mistake of admitting its Tolkien influence right there in the book.
2. If Saul Zaentz wanted to take TSR to court, he could afford it. TSR at the time couldn’t afford the battle (even if they had a chance of winning). So TSR likely simply complied with a cease and desist letter. Blizzard would have fought it.
3. Saul Zaentz was on the ball on ordering TSR to C&D, but not so with video games. Various “Moria” games circulated that featured a balrog for decades before Diablo ever came out. You don’t get to sue someone for IP violations is you failed to protect your IP in the past.
4. Balrogs are actually the IP of the Tolkien ESTATE, it’s just that Tolkien Enterprises (Saul Zaentz) has merchandizing rights based on The Hobbit and The Lord of the Rings. So what if the defendant claims his balrogs are derived solely from The Silmarillion?
All just speculation!
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Post by Stormcrow on Apr 8, 2014 6:58:57 GMT -6
Saul Zaentz died in January. Best to put references in the past tense.
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Post by geoffrey on Apr 8, 2014 8:27:45 GMT -6
So why not publish D&D stuff with balrogs in it? Because it is someone else's IP, and the IP holder has explicitly said don't do that. About a third of a century ago the IP holder asked TSR not to do that. It was so long ago that the major particular persons involved are all now deceased. Now a game (Diablo), with a far higher profile than mid-70s D&D, openly and without silly little dodges uses balrogs. Things seem very different today than in 1976. If Middle-earth Enterprises doesn't care about the multi-million dollar Diablo computer game using balrogs, do you think they would even notice (much less care) if some OSR books included balrogs? I know that Khunmar features a balrog, and I hope that when it is formally published, it keeps the balrog instead of replacing it with a "balor" or "bolrag" or "ballrog" or "bal-rog" or etc. |
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Post by Falconer on Apr 8, 2014 11:10:10 GMT -6
Here is a very interesting current lawsuit — the Tolkien Estate suing the Saul Zaentz Company. Among other things, it may mean the death of The One Ring RPG, if the Saul Zaentz Company may not license downloadable materials of any kind nor printed matter of any kind (see for example paragraphs 5, 7, 55 and 59).
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Post by kent on Apr 8, 2014 17:06:03 GMT -6
If Middle-earth Enterprises doesn't care about the multi-million dollar Diablo computer game using balrogs, do you think they would even notice (much less care) if some OSR books included balrogs? No, I don't think they would notice or care if it was brought to their attention. The disappointing thing is that people have been brainwashed into thinking that the corporations have a moral right here. Society decides how artists should be rewarded for their efforts and we should be more discriminating in law between the principles of support afforded gargantuan money-making machines and those artists who don't earn much for themselves or their families, and this support must be balanced with society's use and enjoyment of the art produced however we decide. |
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Post by waysoftheearth on Apr 8, 2014 17:40:07 GMT -6
About a third of a century ago the IP holder asked TSR not to do that. How long do you suppose a Cease & Desist order takes to expire? If Middle-earth Enterprises doesn't care about the multi-million dollar Diablo computer game using balrogs That is a pretty big IF. "Has not yet legally challenged" is not the same thing as "Cannot legally challenge". Besides which most (if not all!) major "Lord of the Rings"-based games would have to be produced under some form of legal license agreement, such as this: uk.pc.gamespy.com/pc/lord-of-the-rings-online-shadows-of-angmar/853472p1.htmlI would be surprised if a company with as much at stake as--and as many resources as--Blizzard Entertainment would be operating "in the shadows" of licensing. Why would they risk it? It's a matter of public record that much of Blizzard's early material (including Diablo) was inspired by Tolkien's material: www.escapistmagazine.com/articles/view/issues/issue_48/289-Secret-Sauce-The-Rise-of-Blizzard.5As was an entire genre of fiction. And it's generally acknowledged that the Diablo "Balrog" was inspired by Tolkien's Balrog: diablo.wikia.com/wiki/Balrog_(Diablo_I) see bottom of the page. (although it's unclear whether that wiki is officially endorsed by Blizzard) None of which changes the fact that the Balrog is part of the Tolkien IP; the legal rights around it belong to the IP holder. And could, I suppose, legally pass to an alternate IP holder at any future time. The disappointing thing is that people have been brainwashed into thinking that the corporations have a moral right here. That may or may not be so, but that is completely separate matter from the legal rights of an IP holder. |
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Post by geoffrey on Apr 9, 2014 11:41:10 GMT -6
Blizzard is not listed on the website of Middle-earth Enterprises as a licensee: www.middleearth.com/current_licensees.htmlIt looks to me that Middle-earth Enterprises is more relaxed now than they were in 1976 about others using balrogs without a license. A lot of things can change after 38 years, and I would count this as a welcome change.  |
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Post by kent on Apr 9, 2014 13:04:12 GMT -6
The disappointing thing is that people have been brainwashed into thinking that the corporations have a moral right here. That may or may not be so, but that is completely separate matter from the legal rights of an IP holder. The issue is continually undergoing much wider consideration than you are happy to fall in line with. |
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