In the recent Federal Court decision Tolkien Estate Limited v Saltalamacchia  FCA 944 (11 August 2016), Beach J granted summary judgment against Alexander Thomas Saltalamacchia for the unauthorised reproduction of two lines of text from the famous J.R.R. Tolkien’s epic work, The Lord of the Rings (LOTR).
The LOTR books are extraordinarily detailed and span in excess of 1200 pages (depending on publication). Tolkien, an English language scholar, created a number of different languages as part of authoring the work, including Entish, Elvish, Dwarvish and most importantly for this case, the language of Mordor – the ‘Black Speech’.
The following poem is included in LOTR:
Three Rings for the Elven-kings under the sky,
Seven for the Dwarf-lords in their halls of stone,
Nine for Mortal Men doomed to die,
One for the Dark Lord on his dark throne
In the Land of Mordor where the Shadows lie.
One Ring to rule them all, One Ring to find them,
One Ring to bring them all, and in the darkness bind them,
In the Land of Mordor where the Shadows lie.
While the entire ‘One Ring’ poem may not immediately spring to mind for the general populace, given the popularity of the (fairly) recent film adaptations by Peter Jackson, there are likely to be very few people who are not aware of the ‘One Ring’ lines.
In the LOTR story, the ‘One Ring’ lines were included as an inscription in Black Speech (set out below) in, funnily enough, the One Ring of Sauron (Inscription) – the Ring around which the story of LOTR revolves.
The Inscription has been replicated in the rings sold by Saltalamacchia.
Tolkien Estate Ltd (TEL) is the owner of the copyright in the books, and by extension, the Black Speech (which they claim to be an original artistic work or an original literary work) and the Inscription.
TEL sought, and received, summary judgment under r. 26.01 of the Federal Court Rules 2011 (Cth) and s 31A of the Federal Court of Australia Act 1976 (Cth) against Saltalamacchia for reproducing the Inscription.
In email correspondence to the Court, Saltalamacchia admitted that he had been selling the LOTR products for 8 years, and, rather than denying the infringement, the email simply calls into dispute the number of sales Saltalamacchia made of the replica rings.
His Honour Beach J accepted that s38 of the Copyright Act, which requires an applicant to establish that a respondent knew or ought to have reasonably known that his actions constitute infringement of copyright, was satisfied as Saltalamacchia had promoted the rings by reference to “Lord of the Rings” and “The Hobbit” and “Bilbo Baggins”. Beach J also pointed out that Saltalamacchia ignored three letters of demand – two from the Applicant’s UK lawyers, and one from their Australian lawyers.
The Respondent, who was, incidentally self-represented, stated in his defence that his products do not exactly replicate the Inscription due to a “gap”. His Honour stated, at paragraph 17:
It appeared to me that the respondent was under the misapprehension that the applicants were concerned about his conduct because the inscription of the impugned rings had a “gap” and was not an exact replica of the One Ring Inscription. Regardless, the respondent’s conduct constituted copyright infringement by the fact that he has and continues to reproduce a substantial part of the One Ring Inscription and/or communicate a substantial part of the One Ring Inspection [sic] to the public without the licence or authority of the applicant.
With no valid defence or justification, Beach J ordered summary judgment against Saltalamacchia.
What is interesting about this case is His Honour’s statement [at paragraph 4]:
…At the time the One Ring Inscription was created, Mr Tolkien was a “qualified person” for the purposes of s 32(2) of the Copyright Act 1968 (Cth) by reason of the operation of s 184 of the Copyright Act and reg 4 of the Copyright (International Protection) Regulations 1969 (Cth) (Copyright Regulations). The One Ring Inscription is an original artistic work or an original literary work in which copyright subsists in Australia pursuant to ss 32(2) and 184 of the Copyright Act and reg 4 of the Copyright Regulations.
It leaves the reader wanting with regard to how the Inscription is protected – is it an artistic work, or a literary work? If it is an artistic work, then ok, this artistic work has been reproduced. If it is a literary work, shouldn’t there be some discussion as to whether or not reproduction of the Inscription is a substantive reproduction of a copyright work? Whether two (translated) lines of a poem written as part of a larger literary work (much larger work when you consider the enormity of the LOTR books) constitutes a ‘substantive’ reproduction. Further, if the languages created by Tolkien are actually considered languages (and I’m sure there are hard core devotees of LOTR around the world that are fluent in Elvish and Dwarvish, though I would draw the line at Entish), can you consider the Inscription an artistic work? Does is stand to reason that just because we do not understand the characters of a foreign language, that any sentence written in those characters constitutes an ‘artistic work’? Does the following constitute another ‘artistic work’ in Australia?
خدث قهدل فخ قعمث فاثپ شممو خدث قهدلفخ بهدی فاثپ
خدث قهدل فخ ذقهدل فاثپ شممو شدی هد فاث یشقندثسس ذهدی فاثپ
I don’t have the answer, mind you, but it does make for an interesting and, dare I say it, a quite heated, discussion over a glass of wine on a Friday night…