If a person were to use Orcs in the book they were writing would they be sued by the Tolkien estate?

[Michael]

Does Tolkien own the concept of orcs??

[Alexandra]

The Tolkien estate is very jealous of copyright.

But Tolkien derived the concept from an Old English word, ocurring in the poem Beowulf. So I think they might find it difficult to claim copyright on the use of the word, or the general concept.

However, you might run into problems if the orcs in your novel are exactly like Tolkien's. It is is his concept that you are using, rather than the traditional meaning, then I think that you could run into problems, just like the plagiarism of any other idea.

Note that orcs, in some form, do appear in other fantasy novels, such as Grunts, by Mary Gentle, and in many computer games, like World of Warcraft.

Dsclaimer: I am not an expert on copyright law; these are simply my thoughts on the matter.

[Kathy]

No, Tolkien does not own the concept of Orcs, it would be the same as someone using trolls, dwarves or elves. They have been around since way before Tolkien. Alexandra is correct regarding the derivation of the term and its usage.

[Michael]

This whole series is about orcs http://www.goodreads.com/series/41196.... That's why I ask if it's ok,I don't know if they ran into problems or anything

[Alexandra]

The series you mention is available on Amazon, as is Mary Gentle's book (which I have also seen in major book chains). Amazon responds pretty promptly by pulling any book over which there is a copyright dispute; so, I think that you can safely assume that these books were either never challenged, or that the dispute was resolved in the author's favour.

[Ken]

You can use the concept so long as you are not plagiarizing the specific features and styling developed by a particular author. It is somewhat of a gray area of course, what with the deeply entrenched concepts attached to most fantasy creatures.

In my opinion, it's best not to use those concepts anyway - because it makes your work not stand out from the others that use it. For example, vampires. So common in current novels as to inundate every shelf with their faces and tropes. Killed with stakes, fearful of crosses and garlic, suckers of blood, pale and nocturnal, immortal. All these tropes are characteristic of the creature type.

And boring.

Should you consider using the vampire concept, I'd suggest doing it originally. One author I read used vampires as plant-organisms. Sentient vines, they lived like succulent lianas and took the form of their victims as defense mechanisms. They were capable of limited flight, but being wooden things, stakes, crosses, and garlic had no effect on them. Nor were they immortal, nor nocturnal. His concept was more frightening because it was original and, fictionally, more plausible.

Therefore, I think you can use the concept of an orc creature because it is attributed to public domain folklore. But make it your own to avoid copyright issue and avoid blending in with all the other authors clamoring to use the same ideas.

[Michael]

Kenneth wrote: "You can use the concept so long as you are not plagiarizing the specific features and styling developed by a particular author. It is somewhat of a gray area of course, what with the deeply entrenc..."

Could you name this vampire book your talking about?

[Ken]

It's actually not a vampire book at all. They're just minor characters.

Gene Wolfe's Book of the Short Sun.

[Danny]

A vast amount of fantasy videogames use orcs, so I'm guessing you're ok.

[infael]

Orcs are such a staple that trying to claim copyright infringment would backfire on the Tolkien estate pretty badly, I'd think.

[RLL]

Tolkien's estate pretty much owns the concept of Tolkien. There is no copyright in ideas - only in the presentation of ideas. Your vampire story isn't my vampire story. For good or ill, Tolkien cemented the epic fantasy quest in the minds of so many writers that his cottage industry became heavily mechanised.

No one will sue you for sending a brave band of heroes across a massive landscape in pursuit of the great whatchamacallit. Expect jeering from the stalls if you include a grey-hatted wizard who picks up a white hat later.

Another problem lies with a separate area of law - the trademark. A casual search on the internet uncovered a trademarked Uruk-Hai army - made from Lego. Can you create your own stories based on Tolkien's work? The Tolkien estate says NO. That's a copyright point.

Copyright is the right to engage in financial exploitation of a work - selling copies. The right may be parcelled out to different areas. Tolkien sold the rights to the movie side of things in exchange for a percentage. His son Christopher benefits from that legacy.

An army of Uruk-Hai lawyers is on stand-by to prevent copyright theft and/or dilution of trademark. Depending on who owns the particular rights or sub-leased rights, you could be sued by Tolkien's estate or some movie conglomerate. But not for putting orcs, elves, or dwarfs in your story. Or dwarves, as Tolkien writes.

In the preamble to Bored of the Rings, a book which, it has to be said, is pretty much ALL preamble, it's made QUITE CLEAR that the work is a PARODY. This means little. Parody is not an excuse to commit copyright theft. The main defence is that those who sue parodists are seen as absolutely without humour themselves. Originally, Bored of the Rings carried Tolkien's name on the cover. That's not the case with the latest printing. Tolkien's estate pretty much owns the concept of Tolkien.

Go ahead and make use of orcs, elves, dwarves, or dwarfs. But avoid telling new tales of Frodo, Bilbo, and Gollum, unless you can sign one deal to rule them all. Dracula is up for grabs, whether historical figure or vampire. Better yet - grow your own.