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History, Movies

TIME TO KICK THAT NASTY HOBBIT: JUDGE ISSUES TEMPORARY RESTRAINING ORDER ON ‘AGE OF HOBBITS’ MOCKBUSTER

judge_ageofhobbits_posterIt was 1937 when Tolkien published “The Hobbit, or There and Back Again” to wide critical acclaim, from which time it has sold an estimated 35 million to 100 million copies.

It was 1993 when Disney brought a lawsuit against a company, Goodtimes Home Video Corp. in the Southern District federal court in New York. Goodtimes released an animated “Aladdin” movie around the same time Disney did and Disney brought suit against Goodtimes. Disney lost, and apparently Hollywood largely assumed from thereon out that there wasn’t much that could be done about knock-off movies. If a low-budget movie studio released a similar movie as a big-budget blockbuster, then that was just the way things were and the big studios had to live with it.

Fast forward to 10 years and thousands of miles away from that lawsuit….

An exciting archaeological discovery happened in 2003 on the exotic Indonesian island of Flores. Nine skeletons were found of humanoid creatures that were approximately three feet tall that appear to have lived within the last 100,000 years, perhaps as recently as 12,000 years ago. Thus, these ‘mini’ humans would have coexisted with modern human ancestors, who came to the island at least around 45,000 years ago. There were numerous stone tools found, appropriately sized to the yard-tall humanoids. Three feet tall people, wow, how cool! The new species were unveiled on October 28, 2004, and swiftly nicknamed “Hobbits” even to the extent that the proposed scientific name for a time was Homo Hobbitus. Yet, the species became officially named Homo Floresiensis.

An exciting business discovery happened in 2005 for the heads of Asylum Studios when Blockbuster ordered 100,000 copies of their low-budget, direct-to-DVD “H.G. Wells’ War of the Worlds,” which was released the same month as Steven Spielberg’s big budget adaption of “War of the Worlds” hit theaters. Both were modernized adaptations of the 19th century classic and had movie posters and promotional materials which were, well, not highly dissimilar in appearance. Let’s try some math: 100,000 copies x $12.99 = $1,299,000. $1,299,000 – anywhere from $200k-$1MM in budget = big profits for Asylum. Looks like there is good money in direct-to-video low budget versions of big-budget theatrical releases, or “mockbusters” as they came to be called. From that point on, Asylum has been a specialist in the “mockbuster” genre, bringing such gems as: Snakes on a Train, The Da Vinci Treasure, Halloween Night, Pirates of Treasure Island, Transmorphers (1 & 2), Death Racers, The Day the Earth Stopped, The Terminators, Paranormal Entity (1, 2, & 3), Almighty Thor, Battle of Los Angeles, and earlier this year: Abraham Lincoln vs. the Zombies. Asylum did not bring you: Snakes on a Plane, Da Vinci Code, Halloween, Pirates of the Caribbean, Transformers (1 & 2), Death Race, The Day the Earth Stood Still, The Terminator (any), Paranormal Activity (1, 2, & 3), Thor, Battle for Los Angeles, or Abraham Lincoln: Vampire Hunter. All of the Asylum releases are concurrent in time with the big budget releases.

Earlier this year, in April 2012, Asylum ran into legal trouble with Universal over “American Battleship” a mockbuster version of “Battleship.” Universal was reported to have spent $30MM promoting the $100MM “Battleship” movie, and filed suits on both sides of the Atlantic to enjoin Asylum. Universal met with some success, being one of the first post-Aladdin cases to try to do something about knock-off movies. Perhaps someone read the Disney v. Goodtimes opinion and realized that the precedential value of the opinion is solely to show what a badly handled, stupidly done case that was. “American Battleship” was renamed “American Warships.”

Also earlier this year, around August 2012, Asylum had announced plans to release “Age of the Hobbits” on December 11, 2012, just a few days before New Line’s “The Hobbit: An Unexpected Journey” was set to hit theatres. “Age of Hobbits” deals with our friends the Homo Florensiens that the archaeologists discovered in 2003, and their battle against komodo dragon worshipping cannibals, which archeologists might not have found at all. To be fair, the tagline for “Age of Hobbits” is, “They are not Tolkien’s Hobbits, they are real!” “Age of Hobbits” was filmed starring Christopher Judge of Stargate: SG-1 and Bai Ling the creepy-hot-eye-plucking-incest-sister from “The Crow” (the original movie).

Not dissuaded by the tagline, emboldened by the success of Universal, and donning protective lenses, MGM, New Line Cinema, Warner Bros., and others filed suit on November 7, 2012, in a federal court in Central California (Los Angeles) to prevent “Age of Hobbits” from being released under that title. On November 21, an ex parte application was filed for the Temporary Restraining Order, and the Honorable Philip S. Gutierrez issued his 32 page opinion granting the TRO on December 10, 2012.

NiC has seen it misreported that New Line and MGM “won the lawsuit,” and while winning the TRO is certainly a victory, it is not in a legal sense winning the entire lawsuit. There is still a hearing set for January 28, 2013, as to whether to make the TRO a preliminary injunction. Theoretically, plaintiffs could still lose that, even if it is unlikely they would. Even if the injunction is won, injunctions can be revisited based on circumstances and there is still discovery, trial, appeal, and so on. You don’t need to have gone to law school to ask yourself: does winning a “temporary” restraining order sound like a permanent victory?

Yet, in the meantime, “Age of Hobbits,” now being renamed “Clash of Empires” in some markets, and “Dawn of Mankind” in others, will not be released in December as “Age of Hobbits.”

About Nerds in Court

John G. Nowakowski, Esq. (LLMT), is a graduate of the University of San Diego School of Law, and is licensed to practice law in California and Nevada. Christina R. Evola, Esq. is a recent graduate of the University of San Diego School of Law where her studies focused on intellectual property, antitrust, and media law. She is a lifelong gamer and avid cosplayer. DISCLAIMER: ‘Nerds in Court’ is for entertainment purposes only. Nothing should be construed as legal advice, or any advice for that matter, and no attorney-client relationship is formed by reading these posts. Do not consider information provided here as a substitute for obtaining legal advice from a qualified, licensed attorney in your state.

Discussion

2 thoughts on “TIME TO KICK THAT NASTY HOBBIT: JUDGE ISSUES TEMPORARY RESTRAINING ORDER ON ‘AGE OF HOBBITS’ MOCKBUSTER

  1. Age of Hobbits looks pretty cool, just saying.

    Posted by Jason Cole | December 13, 2012, 6:52 pm

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