Are Orcs copyrighted?
February 6, 2013 7:52 AM   Subscribe

If you look up "Orc" on Wikipedia, it says that, rather that coming from, say, German folklore (as I assumed), they first appeared in Tolkien's works. But if that's the case, how can Orcs appear in all sorts of fantasy books and video games? Or am I just naive, and royalties are being paid to the Tolkien estate, such as by the creators of Dungeons and Dragons?

If this question seems ridiculous, consider "mithril." According to Wikipedia, it's copyrighted by the Saul Zaentz company. Therefore, presumably, if you use the concept of mithril in your work, you must not only get their permission, such as by paying them royalties. But why doesn't the same situation obtain for Orcs?
posted by gnossie to Law & Government (10 answers total) 4 users marked this as a favorite
In general you can copyright artistic expressions, like books, poems, etc., but not individual words, concepts, or ideas. So nobody can copyright orcs, or mithril, in and of themselves. (The Hobbit and the Lord of the Rings are still covered by copyright, by the way.)

The Wikipedia entry refers to mithril being covered by a trademark, not copyright. Trademark is a different form of intellectual property. Generally speaking, it lets a business take a specific word or phrase or logo and argue that the word is/should be used to specifically identify that company's products. It doesn't categorically stop other people from using the word, just in situations where there might be confusion or other interference with the company's brand. And I don't know what exactly the mithril trademark covers or whether it has been challenged or upheld in court.
posted by willbaude at 8:08 AM on February 6, 2013 [3 favorites]

On preview, largely what willbaude said, but in case additional info about that is useful:

OK, first, mithril is not copyrighted by the Saul Zaentz company. Mithril is trademarked by the Saul Zaentz company. Trademark and copyright are not the same.

A trademark is a recognizable sign, design or expression which identifies products or services of a particular source from those of others. You can trademark a word, or a name, or a phrase. Copyright grants the creator of an original work exclusive rights to it, usually for a limited time. You cannot copyright a word, name, or phrase, but only an entire work.

They apply to different things and have different laws pertaining to them. If Lord of the Rings is copyrighted, it means you can't photocopy Lord of the Rings, make minor changes, and sell it as your own work. If Orcs are trademarked, that means you can't write something completely different from Lord of the Rings that has Orcs in it if it could cause brand confusion or otherwise infringe on the trademark.

This means a few things:

1) Just because Lord of the Rings is copyrighted, it does not necessarily mean that Orcs are trademarked. They're not the same thing, and one does not equal the other.

2) Even if Orcs are trademarked, it's possible for another work to use them, depending on the use. Although Orcs are used commonly enough that I would suspect this is not the case.

3) Even if Orcs were trademarked, it's easier for things to lose trademark than to lose copyright. If a word falls into common usage, for example, it's much harder to trademark. So it's possible that at one time Orcs were trademarked, but the word became so common that the trademark was ruled no longer viable.

I would suspect (1) instead of (2) or (3) - it's the same reason you can officially have "halflings" in D&D but not "hobbits". The word "hobbit" got trademarked, but "halfling" never did.

(Copyright vs. trademark and the areas they cover can actually get more complicated than this in the legal tangle of the real world - for example, Terry Nation apparently holds the copyright on "Daleks" - but that's the general idea.)
posted by kyrademon at 8:17 AM on February 6, 2013 [1 favorite]

Scrolling down on the Wikipedia orc entry, you can see some examples of pre-JRRT uses of words similar to orc that cover the same basic idea of what an orc is - a monstrous humanoid.

Contrast this to the hobbit/halfling split, where the word hobbit has only ever been used to mean a diminutive humanoid and was created by JRRT. Add in that it was the title of his book as well, and you have a name that is pretty well locked down.

Also consider the Ent/Treant split. Ents are JRRT's, even though the word ent was used to denote giants in Old English. Trick is, JRRT used 'ent' to mean 'giant tree creature' which meant ole Gary had to switch them over to treants in order to appease the Tolkien estate.
posted by robocop is bleeding at 8:32 AM on February 6, 2013

Wikipedia is wrong about orc first appearing in Tolkien. Tolkien may have popularized his particular spin on orcs, which influenced other depictions of orcs (in D&D, Warhammer, Warcraft, etc.) but he didn't invent the concept or the word no more than he invented goblins, elves, wizards, or dragons.

According to the Oxford English Dictionary, orc meaning "a devouring monster or ogre" was probably adopted from Italian. Variations of orc (such as orque and orke) have appeared in English publications as early as 1605.

So orc in English as a monstrous mythological baddie pre-dates Tolkien by over 300 years.

Tolkien did invent the word hobbit, but not the derogatory term halfling ("not fully grown"), which dates in English at least back to 1794.
posted by Boxenmacher at 8:40 AM on February 6, 2013 [12 favorites]

how can Orcs appear in all sorts of fantasy books and video games?

Because ideas are not subject to copyright. Expressions are. You probably can't write a story about an orc chieftain of Moria named "Azog," because Tolkien already named that character, i.e., it's an expression subject to copyright. But you're free to make up your own underground kingdom filled with green-skinned villain beasties called "orcs," because those ideas are not subject to copyright.
posted by valkyryn at 11:00 AM on February 6, 2013

When TSR first published Dungeons & Dragons in the 70's, the game included Treants, Hobbits, and Balrogs. The Tolkien people expressed their displeasure, and TSR changed Treants to Ents and Hobbits to Halflings. Balrogs were completely removed from the game.

I'm not sure exactly what bit of IP law might actually cover a word. Not copyright, since individual words, titles, and short phrases are not protectable by copyright. "Hobbit" might be protected as a trademark, given its profile as the title of a novel, but that wouldn't extend to all uses of the word.

My suspicion is that the Tolkien people simply had deep enough pockets to make life difficult for the fledgling TSR, and TSR decided it wasn't worth fighting. I don't think there's a good basis in law for this.

Also, Gary Gygax always emphasized the pulp inspirations of D&D (Fritz Lieber, Clark Ashton Smith, Jack Vance, etc.) over the Middle Earth influences, although I'm not sure if his stance resulted from the Tolkien legal threat, or if Gary only grudgingly added the Middle Earth elements to the published game in the first place to make it more popular.
posted by paulg at 12:24 PM on February 6, 2013

Orcs in the Warhammer universe are called 'orks', because it was copyrightable.

I don't think I'm even supposed to know what an ork is.
posted by mippy at 12:52 PM on February 6, 2013

I think there was also some unpleasantness over gods from the Newhon books of Fritz Leiber in one of the D&D supplements.
posted by thelonius at 2:59 PM on February 6, 2013

The Wikipedia article on Orcus has further relevant details on the etymology of orc/orco. William Blake's Orc may also be of interest, possibly indicating more ambiguity in what the term evoked for English speakers before Tolkien--but, even so, the prior association with ogre, etc., seems clear.
posted by Monsieur Caution at 4:20 PM on February 6, 2013

Some unique, identifiable intellectual property (like Tolkien's hobbits and, as theonius mentioned, Leiber's gods) requires official licensing of some kind to be used and adapted, but I don't know the details or levels of distinction.

For instance, on mippy's point, orks (with a "k") are trademarked as part of Games Workshop's futuristic, sci-fi Warhammer 40K universe. In the Warhammer Fantasy world, they're still orcs (with a "c"). Similarly, an typical pointy-eared, tree-loving, elf can't be trademarked, so GW's Warhammer Fantasy elves aren't. But GW has trademarked Eldar, which are basically space elves.

Actually, GW developed a history, ecology (symbiotic fungi!), culture, and gods for orks, which when added to the futuristic setting, may account for the possibility of a trademark. That's speculation on my part. If that's true, it explains how they did the same with Eldar.

That makes a kind of sense. Hobbits are very much like folkloric gnomes, but Tolkien gave them a different name and made up distinguishing characteristics. He almost did the same thing with elves and dwarves. If he'd also given them different names, they'd likely be trademarkable, too.

If you're interested, something similar goes on with H. P. Lovecraft's works and the publisher Chaosium. Chaosium has the license for Lovecraft and Cthulhu-related IPs in boardgame and roleplaying game markets even though Lovecraft's original works are all out of copyright and in the public domain. A Kickstarter project for a Cthulhu card deck recently received a cease-and-desist from Chaosium because it included their version of Lovecraft's elder sign.

Like Lieber's gods, Lovecraft's mythos were illegally included (along with some of Michael Moorcock's creations, which are also under license for use in games by Chaosium) in an early edition of TSR's D&D supplement Deities and Demigods. Later editions removed them.
posted by Boxenmacher at 4:28 PM on February 6, 2013

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