Scientist Refused Permission To Call Hominids 'Hobbits', Even Though Word First Used In Print In 1895 -- And Not By Tolkien

from the always-check-your-sources dept

Fri, Oct 26th 2012 11:43am — Glyn Moody

Techdirt has written before about the aggressive enforcement habits of the Tolkien estate, once in connection with the name "Tolkien", and once regarding the word "Hobbit". Looks like they're at it again, down in New Zealand:

Victoria University's Brent Alloway has organised a free public lecture on Homo floresiensis, a species closely related to humans which lived on Flores Island, but has been told he is not allowed to call the free public lecture 'The Other Hobbit'.

The volcanologist wrote to the estate of Hobbit author JRR Tolkein about the event on December 1 as a courtesy, but was told by Wellington lawyers AJ Park representing the estate that he was not allowed to use the word.

That's pretty ridiculous from many viewpoints. First, this is a free public lecture from a scientist -- not a commercial use of any kind. Secondly, the hominids in question have been called "hobbits" by the scientific community almost since their discovery in 2004, so this is a very well-established usage. Finally -- and most interestingly -- over on Twitter, Chris Puttick pointed out that Tolkien wasn't even the first to use the term "hobbit" in this sense: The word also turns up in a very long list of folkloric supernatural creatures in the writings of Michael Aislabie Denham (d.1859), printed in volume 2 of "The Denham Tracts" [ed. James Hardy, London: Folklore Society, 1895], a compilation of Denham's scattered publications. Denham was an early folklorist who concentrated on Northumberland, Durham, Westmoreland, Cumberland, the Isle of Man, and Scotland.
Since the book appeared in 1895, and Denham died in 1859, that would seem to place all of its text – and hence the creature known as a "hobbit" - in the public domain. I wonder what the Tolkien Estate will say to that?

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, free speech, hobbits, science, tolkien

38 Comments

If you liked this post, you may also be interested in...

Reader Comments

The First Word

“

He shouldn't have asked...

...because he didn't need their permission.

—OldMugwump

”

Subscribe: RSS

View by: Time | Thread

Anonymous, 26 Oct 2012 @ 11:56am

It isn't who published the text first, it's who copyrighted it last and has the money to sue with that matters!
[ link to this | view in chronology ]
- jupiterkansas (profile), 26 Oct 2012 @ 12:36pm
  
  Re:
  A court might disagree with you.
  [ link to this | view in chronology ]
  - Anonymous Coward, 26 Oct 2012 @ 1:09pm
    
    Re: Re:
    Perhaps it would, but it would cost the scientist five years of his life and millions of dollars to figure it out one way or the other.
    [ link to this | view in chronology ]
  - Anonymous Coward, 26 Oct 2012 @ 1:10pm
    
    Re: Re:
    Only if you have more money.
    [ link to this | view in chronology ]
- Anonymous Coward, 26 Oct 2012 @ 3:09pm
  
  Re:
  you can't copyright a word!
  [ link to this | view in chronology ]
Anonymous Coward, 26 Oct 2012 @ 12:01pm

more importantly, i would have thought, is whether Brent Alloway will go ahead and use the term now. if he does, i wonder on what grounds the Tolkein estate lawyers would file charges and whether they would pursue all the way to court?
[ link to this | view in chronology ]
aethercowboy (profile), 26 Oct 2012 @ 12:01pm

This is great! It means that those pesky scientists can't sell products that may lead consumers into thinking they're getting Hobbit-brand hominids.

Otherwise, we might get a dreadfully boring anthropological documentary called "The Hobbit" or something. Snore... even if it IS in 3D...

Bullet = dodged.
[ link to this | view in chronology ]
Rikuo (profile), 26 Oct 2012 @ 12:02pm

As much as I love Grandpa Tolkien and what he did to basically start the Modern Fantasy genre...I fucking loathe his estate. This sums up why I do.
[ link to this | view in chronology ]
trish, 26 Oct 2012 @ 12:22pm

-.-
Mr. Tolkien would never have written those books if he thought that hi great-grandchildren would have to deal with other people using his borrowed words without paying them.
[ link to this | view in chronology ]
Miff (profile), 26 Oct 2012 @ 12:25pm

If I recall correctly TSR went through some legal trouble in the '70s about hobbits in D&D; they ended up changing the name to halflings.
[ link to this | view in chronology ]
- Niall (profile), 29 Oct 2012 @ 6:42am
  
  Re:
  This was the same TSR that in return wanted to sue a certain "Sir Walter Scott" for 'use' of 'their' IP "drow".
  [ link to this | view in chronology ]
out_of_the_blue, 26 Oct 2012 @ 12:43pm

What is this, Hobbit Day?
Anyway, I've been "informed" on another thread just today that's all actually from "Beowulf".
[ link to this | view in chronology ]
- Anonymous Coward, 26 Oct 2012 @ 1:30pm
  
  Re: What is this, Hobbit Day?
  No.
  
  You were told bits of it were from Beowulf, which seems reasonable enough seeing as how both stories end with freaking dragons sitting on piles of gold. There are probably hundreds of other themes and influences.
  
  Maybe that's why you have as problem with the other users of this site? You never actually read what people write, you skim it and alter words in your head...
  [ link to this | view in chronology ]
- Leigh Beadon (profile), 26 Oct 2012 @ 1:35pm
  
  Re: What is this, Hobbit Day?
  We're talking about the cultural tropes of heros and epics here. There are throughlines not just to Beowulf, but to things much much older like Homer's epics and the Epic of Gilgamesh. It is a real shame that, in your desire to bicker about culture, you have completely failed to grasp the rich, moving, aeon-spanning oneness of it all, and are missing out on the profound sense of beauty that understanding leads to the world and human existence.
  [ link to this | view in chronology ]
  - Leigh Beadon (profile), 26 Oct 2012 @ 1:36pm
    
    Re: Re: What is this, Hobbit Day?
    ...leads = lends
    [ link to this | view in chronology ]
OldMugwump (profile), 26 Oct 2012 @ 12:44pm

He shouldn't have asked...
...because he didn't need their permission.
[ link to this | view in chronology ]
- Anonymous Coward, 26 Oct 2012 @ 3:43pm
  
  Re: He shouldn't have asked...
  Best answer.
  [ link to this | view in chronology ]
Jeff_Vader_runs_the_Deathstar? (profile), 26 Oct 2012 @ 12:56pm

Often as the scientific community gathers new information about a species items are discovered that require it be renamed...

Should we all start marking up our textbook to change Homo floresiensis to something more accurate like Homo tolkienheirsarejackassesis?

Just a thought...
[ link to this | view in chronology ]
Mike Linksvayer (profile), 26 Oct 2012 @ 1:14pm

https://en.wikipedia.org/wiki/Denham_Tracts cites Michael D.C. Drout, ed., J.R.R. Tolkien Encyclopedia: Scholarship and Critical Assessment, Routledge (2006), p. 121. ISBN 0-415-96942-5 as saying Tolkien may have gotten the term from the Denham Tracts.
[ link to this | view in chronology ]
- Kate Ebneter, 26 Oct 2012 @ 1:43pm
  
  Re:
  It's highly unlikely that Tolkien got "hobbit" from the Denham Tracts. There are tons of English folklore terms beginning with "hob" (the best known of which is doubtless "hobgoblin"), so it is not at all surprising that the word would appear in a collection of such names, whether Tolkien had read the book or not. (There is no evidence that he did so.)
  
  I'm actually surprised that this involves the Estate, by the way; I would expect it to involve Tolkien Enterprises, which holds the trademarks and which is much more aggressive than the Estate in going after alleged infringers.
  [ link to this | view in chronology ]
  - Anonymous Coward, 26 Oct 2012 @ 2:10pm
    
    Re: Re:
    Their is a high chance that he had read them given his academic specializations http://en.wikipedia.org/wiki/Tolkien.
    [ link to this | view in chronology ]
  - The eejit (profile), 26 Oct 2012 @ 2:18pm
    
    Re: Re:
    "Hobbit" as a term, has been in fairly common use for a good while (for example, in the Witch Trials of 1612, there were mentions of "hobbits"). It's entirely possible that Tolkein didn't read the Denham Tracts, but I wouldn't say it was certain.
    [ link to this | view in chronology ]
    - Anonymous Coward, 26 Oct 2012 @ 3:45pm
      
      Re: Re: Re:
      Can you give a citation for the Witch Trials of 1612?
      [ link to this | view in chronology ]
Laroquod (profile), 26 Oct 2012 @ 1:35pm

His first mistake was asking for permission and assuming good faith.
[ link to this | view in chronology ]
Divide by Zero (profile), 26 Oct 2012 @ 1:47pm

The Tolkien heirs get worse and worse. Tell me why, again, people who had little if anything to do with the work are allowed to profit from it? Bunch of lazy bludgers.
[ link to this | view in chronology ]
- Anonymous Coward, 26 Oct 2012 @ 2:13pm
  
  Re:
  If the works make money they can employ lawyers to annoy other people, and feed their own feeling of self importance from being related to someone famous.
  [ link to this | view in chronology ]
AB, 26 Oct 2012 @ 1:54pm

I hereby claim all rights on the word 'the' so nobody better use it without the explicit permission of me or my estate!

It's fun to learn that apparently neither prior use nor even creative responsibility have any actual bearing on copyright claims. Good thing nobody would ever use such laws in ways they were not intended - that is what the mafiaa keep assuring us, right?
[ link to this | view in chronology ]
Wally (profile), 26 Oct 2012 @ 2:01pm

I find it particularly sad that the idea to call them hobbits got rejected. J.R. Tolkien and C.S. Lewis both used mythological creatures in their best selling children's novels. Chronicles of Narnia anyone? But to take a name from folklore and then claim it as your own idea as a certain publisher has, that's just wrong.
[ link to this | view in chronology ]
J.R.R. Tolkien, 26 Oct 2012 @ 2:01pm

Sue the bastards
Hi, I'm dead. I obviously didn't invent the word "hobbit" nor did I invent things like elves, trolls, or dwarfs. Would the family of Michael Aislabie Denham please sue the living shit out of my relatives who are still sucking my corpse dry. Get out and write your own books, you freeloaders!

Regards
J.R.R. Tolkien
[ link to this | view in chronology ]
- Rich, 26 Oct 2012 @ 2:50pm
  
  Re: Sue the bastards
  Great, thanks! Now, since you are writing from the beyond, could you please finish your "Unfinished Tales"?
  [ link to this | view in chronology ]
Androgynous Cowherd, 26 Oct 2012 @ 2:32pm

He should go ahead and use the name anyway. If they sue for trademark infringement, it should be easy to get it speedily dismissed as not a "use in commerce". If they have the amazing chutzpah to sue for copyright infringement, the fact that it's just one word kills the claim dead, dead, dead with "de minimis" and the word's pre-dating Tolkien does likewise -- another speedy dismissal.

And when the claim is so obviously bogus on its face that it can be dismissed so fast the plaintiff's head spins, there's a good chance of being able to assert that the suit was filed in bad faith and get a judgment that the plaintiff has to pay your legal fees, too.

(Note though: I am not a lawyer, nor do I play one on TV.)
[ link to this | view in chronology ]
- John Fenderson (profile), 26 Oct 2012 @ 3:18pm
  
  Re:
  He should go ahead and use the name anyway. If they sue for trademark infringement, it should be easy to get it speedily dismissed as not a "use in commerce".
  
  Even if it were used in commerce, there would be no trademark infringement as there is exactly zero chance of confusion.
  [ link to this | view in chronology ]
Anonymous Coward, 26 Oct 2012 @ 3:25pm

The Beatles didn't raise cane over "Lucy" (as far as I know).
[ link to this | view in chronology ]
Anonymous Coward, 26 Oct 2012 @ 3:49pm

What about "avatar"? Shouldn't the filmmaker have been sued by the Sanskrit language?
[ link to this | view in chronology ]
G Thompson (profile), 26 Oct 2012 @ 10:28pm

Whether the word hobbit was or wasn't invented by Tolkien is irrelevant here since there is no case not because of prior usage but because the usage of the word hobbit to describe these hominids HAS been in wide usage by not just the scientific community but by the NZ, Australian and World Wide press since 2004 (and actually a bit before).

They have NEVER made a legal threat or tried to stop the word being used in regards to these hominids since then and all of a sudden they do. This then leads them to have no standing due to their acquiescence of the usage (Though it's noteworthy they would have no standing anyway under trademark law in Australia either.. no dilution here) and therefore the doctrine of laches comes into play absolutely.

This is a New Zealand law firm acting on directions of an American client trying to tell an Australian what they can and cannot do.

Hopefully (after a few emails I will send) a Trademark solicitor/barrister will contact Mr Alloway and present to him options most likely starting with a letter in the gist of "thankyou for your letter , we regret to inform you we are not intimidated due to xxx reasons and kindly now ask you to piss off"
[ link to this | view in chronology ]
ipmaster, 27 Oct 2012 @ 4:23am

Hobbits
G. Thompson. I'm with you 100%.

How ethical is it for a solicitor to deliberately misstated the law, I wonder (rhetorical question)?

Who'd have expected copyright trolls to appear in this context....
[ link to this | view in chronology ]
Charlie, 28 Oct 2012 @ 5:50am

Probably a dick advertising move

Glyn, you've probably been had.

This move gives lots of free advertising world wide (worth millions) due to the net Streisand effect keeping Hobitt (and all the associated products) top-of-mind at almost no cost.

Don't be manipulated like that - fight back so that moves such as this move costs them much more than it benefits them. They deserve nothing less.
[ link to this | view in chronology ]
Ninja (profile), 29 Oct 2012 @ 3:16am

While he has the right to use the word for all the reasons mentioned, it's worth noting that this could result in a lawsuit and regardless of how wrong the Tolkien estate is it will be all sorts of distress for the scientist including but not limited to the financial angle. It's a shame.

While I do think there could be sane copyright rules to help protect works from commercial exploitation this is precisely one of the cases that makes me think we'd be better off if we abolished copyright entirely.
[ link to this | view in chronology ]