Licensing of Hobbits and Orcs

Roman · Feb 12, 2007

I was under the impression that Hobbits and Orcs are both Tolkien's inventions. Yet, apparently WotC is unable to use Hobbits (at least by name), yet Orcs are used widely by both WotC and other RPGs. What gives?

Ranger REG · Feb 12, 2007

Roman said:
I was under the impression that Hobbits and Orcs are both Tolkien's inventions. Yet, apparently WotC is unable to use Hobbits (at least by name), yet Orcs are used widely by both WotC and other RPGs. What gives?

Hobbit is unique. Tolkien coined it, so he can trademark it.

Orc has a "history" dating back to a Saxon poem in the Old English.

Huw · Feb 12, 2007

Ranger REG said:
Hobbit is unique. Tolkien coined it, so he can trademark it.

Orc has a "history" dating back to a Saxon poem in the Old English.

Old English got orc from Latin "Orco" and "Orcus", meaning monster or demon. It then got narrowed down to "sea monster" (as in orca - killer whale). Ogre is another derivation of orco.

Tolkien took the word in its older sense and used it synonymously with goblin, just as he took ent (meaning giant) and adapted it to be a walking tree.

To confuse matters, there's the Orkneys off North Scotland, which, depending on who you ask, means "pig islands", "seal islands" or refers to some ancient tribe. Nonetheless, the concept of orcs having pig heads probably comes from this - though that could just be Gygax's way of making D&D orcs different enough from Tolkien's orcs.

S'mon · Feb 12, 2007

Tolkien didn't invent 'hobbit', it was an obscure English word for little folk, like fairy, pixie, gnome et al. Unlike those, it was not in common 20th century use, and distinctive enough to become a protectable trade mark I guess. Ent = old English 'giant', but apparently still protectable, at any rate TSR didn't want to fight over it.

Roman · Feb 12, 2007

Hmm, I certainly did not realize that the term hobbit was not coined by Tolkien. I think this makes the trademark more dubious and WotC and other companies could perhaps get away with using it. I guess they just don't want to push their luck on matters of this sort.

ruleslawyer · Feb 12, 2007

Just to stick in the wikipedia entry here:

The name hobbit had previously appeared in an obscure "list of spirits" by Michael Denham, which includes several repetitions. There is no evidence to suggest Tolkien used this as a source — indeed he spent many years trying to find out whether he really did coin the word. Denham's "hobbit spirits" (which are never referenced anywhere except in the long list) have no obvious relation to Tolkien's Hobbits, other than the name: Tolkien's Hobbits are small humans, not spirits. Nonetheless, some few people have suggested that the reference in the Denham list should invalidate the trademark.

Desdichado · Feb 12, 2007

Roman said:
Hmm, I certainly did not realize that the term hobbit was not coined by Tolkien.

Well, the claims are a bit iffy.

Roman said:
I think this makes the trademark more dubious and WotC and other companies could perhaps get away with using it. I guess they just don't want to push their luck on matters of this sort.

Yeah, right. Why bother? The perfectly suitable word halfling is not trademarked and has a long and illustrious history of it's own in fantasy fiction now. There's little (if anything) to be gained by fighting to use the word hobbit intsead.

S'mon · Feb 12, 2007

Roman said:
Hmm, I certainly did not realize that the term hobbit was not coined by Tolkien. I think this makes the trademark more dubious and WotC and other companies could perhaps get away with using it.

TM law is only very tangentially based on originality; even a common word like Blackberry can be protected (though not for blackberries). Hobbit had appeared in some obscure (I think) early 19th century list of fey, but all of the notable characteristics of Tolkien's hobbits were his own invention. I suspect his estate's lawyers were employing a copyright/trademark double-whammy. In the 1970s non-patent IP law was still pretty obscure and I doubt TSR had much idea of what their legal standing was.

Aeric · Feb 12, 2007

Funny you should mention this...we were just talking about copyrights and patents in class the other day, and the example used was orcs. According to my teacher, a patent protects the concept of an idea while a copyright protects the expression of that idea. That's why you can find orcs in D&D, Warhammer, Warcraft, etc. They are similar, but not identical, to Tolkien's orcs. They are expressed differently. Now, if D&D tried to market the uruk-hai as a race (including naming them as such), then there would be legal issues. As it is, TSR had to change hobbits to halflings at the request of Tolkien's estate back in the day.

Corsair · Feb 12, 2007

If you called 50 foot tall fire creatures "hobbits" you could probably get away with it, because though the name is the same, they are clearly not the same thing. This is how multiple companies can have similar names when they make similar products.

Licensing of Hobbits and Orcs

Roman

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Huw

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Roman

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ruleslawyer

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Desdichado

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Aeric

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