Question for the D&D old timers

[smetzger]

My understanding of the events is that Gygax/TSR came to an understanding with the Tolkien estate. I have no idea if the use of 'orc' was part of this understanding.

The curious thing about this understanding is that GYgax agreed to not use 'Hobbit' even though this word predates Tolkien's use of the word. Also, Tolkien invented 'Halfling'.

 

[Wicht]

This topic gave me a bit of a sense of deja-vu again .

 

[Aurumvorax]

None of this bears much relation to the actual law on Intellectual Property. You cannot gain copyright a word, for instance - and if you could, then you could stop *anyone* from using it. A claim over Ent, Balrog, Orc or Hobbit (none of which words except possibly balrog* were created by Tolkien, though all were obscure) must vest in Trade Marks law, not Copyright. Tolkien Enterprises lawyers presumably claimed TSR were infringing their marks. This looks like a very weak claim to me, both that they actually were valid TMs and that TSR's use of them was infringing.

You *can* gain copyright over the expression of an idea. Potentially this could give copyright protection to Tolkien's hobbits or Lucas' Ewoks as copyright works, but in that case changing the name of the race would not be a legal defense.

I think what we are dealing with here is publisher-wrangling that is only very tangentially related to anything that could be called 'Law'.

*Balrog is the only one I've not seen a pre-Tolkien use of.

It wasn't just the names they were using but the artistic and descriptive representation as well. Hobbits were short, hairy people with bare feet and good at throwing and hiding. Elves were long-lived warriors with magical aptitude who could become invisible with their "elven cloaks" and, instead of dying, simply sailed away to some far off land. The balrog was a large, fiery creature with bat-like wings with a flaming whip and sword. Even Chainmail specifically referenced Tolkien's work saying the Fantasy Supplement was designed to recreate your favorite fantasy battles. I won't bring up Barsoom because I'm pretty sure TSR had official rights to use Burrough's work as they had a miniatures product line based on Mars.

It's not that D&D used the names, but they directly ripped the creatures art and design as well. If I draw a black haired teenager with a lightning bolt scar who happens to be a wizard and call him Harry Potter, I'm going to get my butt handed to me. Change his appearance, remove his distinguishing features, and I could probably get away with calling a boy wizard Harry Potter. D&D continued to use things like orcs but they were pig-like humanoids, not the savage men of Tolkien's world. The post OD&D orc, treant, balrog, etc. are their own unique creature totally different than what Tolkien presented.

 

[pawsplay]

I don't think the differentiation you're talking about actually happened until after TSR had been sued (at least insofar as printed material is concerned). Although that's largely because the earliest rulebooks give almost no details on what D&D's orcs looked like.

The point I was making was that Gygax's orcs were never infringing. It was more like, "Hm, Tolkien used orc ("ogre") to mean a bestial humanoid, I can do that, too." I assume it's the Gygaxian sense of humor that led to the orcs being described as pig-like; although Tolkien's orcs were broad-nosed, they were not pig-like. Orc, of course, is an unrelated British word meaning pig or boar.

So to reiterate, as this point seems to have been missed; Tolkien did not invent the word orc, it is a cognate of ogre, and those words all come from a word for demon, orc or ork, which comes from the Latin Orcus. Tolkien believed that orc ("demon") was probably inadvertently confused with an Old English word of a similar sound meaning "monster," but Wikipedia says he was almost certainly mistaken.

Orcus -> orc

It's kind of like sherbet/sorbet. Other D&D isms include:

drow - derro - druagh - duergar
These are all the same word, referring to subterranean dwarves or fairies.

treant - ettin - jotun
Treant is an invented to satisfy the Tolkien estate's claim on ent. Ent and ettin are, of course, both cognates of jotun. All mean "giant."

Bahamut - behemoth
Bahamut and behemoth are the same word, transliterated in two different ways.

dragon - drake
Yup, those are the same word.

 

[Stormonu]

The point I was making was that Gygax's orcs were never infringing. It was more like, "Hm, Tolkien used orc ("ogre") to mean a bestial humanoid, I can do that, too." I assume it's the Gygaxian sense of humor that led to the orcs being described as pig-like; although Tolkien's orcs were broad-nosed, they were not pig-like. Orc, of course, is an unrelated British word meaning pig or boar.

I'm not so sure of that, though this is the Hildebrant brother's art (from the 70's)

 

[pawsplay]

I'm not so sure of that, though this is the Hildebrant brother's art (from the 70's)

That's from 1977 or later. It's conceivable that art provided heavy inspiration, although the MM came out the same year. On the other hand, LOTR was quite venerable at that point, and orc does mean "pig" in Gaelic languages (eg. Orkney Islands).