Copyrighted characters

BardSkye · Oct 16, 2006

Are "Halflings" copyrighted? A young writer I know wants to use a race he's calling halflings and one called orcs. I told him I thought both were inventions of Tolkien and his use might infringe their copyright.

He's tried contacting the publisher to find out but has had no answer as yet. I've advised him to change the names of both races but we're both still wondering.

Mr. Funktastic · Oct 16, 2006

I don't think "halflings" is. I'm not sure about this, but didn't that term come from a need for a new word after "hobbit" was copyrighted?

You may want to look into this more. I think I read that somewhere, though. May be wrong.

BardSkye · Oct 16, 2006

I'm not sure myself. The word is used in LOTR.

Pthom · Oct 16, 2006

From a Wikipedia entry for "Halfling" :Originally, "Halflin" was the Scots word hauflin, pre-dating The Hobbit and Dungeons & Dragons. It meant an awkward rustic teenager, who is neither man nor boy, and so half of both. Another word for halflin is hobbledehoy.
My guess is that you're welcome to use the term "halfling" and have it mean anything you like. Odo, the constable in Star Trek: Deep Space Nine, wasn't the first, nor the last, to be refered to as "shapeshifter." I think it's the same deal.

Shadow_Ferret · Oct 16, 2006

I thought Hicks and Weise had written a few stories for TSR (Dungeons and Dragons series) with a character that was part-elf, part-human and they referred to him as a halfing. I could be mistaken.

JBI · Oct 16, 2006

Shadow_Ferret said:
I thought Hicks and Weise had written a few stories for TSR (Dungeons and Dragons series) with a character that was part-elf, part-human and they referred to him as a halfing. I could be mistaken.

That was from the Dragonlance books (terrible books, don't bother reading them. Wies and Hickman are terrible writers) and it was Half Elf not halfling.

Pthom · Oct 16, 2006

I believe Shadow_Ferret is at least in part correct. Refer to the Wickipedia article I link to in my post above.

Rabe · Oct 16, 2006

Shadow_Ferret said:
I thought Hicks and Weise had written a few stories for TSR (Dungeons and Dragons series) with a character that was part-elf, part-human and they referred to him as a halfing. I could be mistaken.

Other than agreeing with another post on most Dragonlance books, Weis and Hickman were writing Dragonlance based on TSR works they also wrote/worked on.

However, their halflings and the creatures you describe here were 'kender'. Which brings to my mind the g'home gnomes of Brooks's "Landover" series.

But he can use 'halfling' all he wants but it's rather generic and connotated now with D&D. Why not come up with something different like Lucas did with "nelwyns" in "Willow"? Or "kender" (which sounds an awful lot - if not spelled awfully similiar - to 'kinder' a German word meaning 'child').

Rabe...

Vomaxx · Oct 16, 2006

Rabe said:
'kinder' a German word meaning 'child').

Meaning "children"--it's the plural of "Kind".

BardSkye · Oct 16, 2006

Holy cats, you folks are both knowledgeable and fast! Many thanks for the info and I'll pass it all along to my young friend. He's certainly talented enough to come up with his own word instead.

Deleted member 42 · Oct 16, 2006

Halfling is fine to use; it predates Tolkien. Orc no, really, don't use it.

It's not a copyright issue, it's a trademark issue, and the Tolkien estate does pursue its interests assiduously.

You can, however, use troll or goblin.

ETA: The orc thing . . . I don't think they should be able to assert the right to the term as a TM, but they have. Tolkien got the word from the Old English word for a sort of demonic monstor, orcneas, and modified it.

LeeFlower · Oct 16, 2006

Medievalist, I agree with you about Orc, but trademark law is SCREWY. How else do we explain Zorro being trademarked when the character first appeared in a book that is very much in the public domain and that the current trademark holders never had the rights to in the first place? [ETA: try saying THAT all in one breath. Yay, run-ons!]

On the original subject, halfling is fine. It's been used all over the place. Orc isn't(?), but I believe others have gotten away with Ork.

TheIT · Oct 16, 2006

Both halflings and orcs are used in the Dungeons & Dragons source materials as valid races for player characters.

Deleted member 42 · Oct 16, 2006

You have my blessing to use orcneas, used in Beowulf.

The Old English ones are not like the Orcs of LOTR, by the way. We're not sure, exactly, what they're like -- big, maybe giants, and clearly Bad to the Bone, possibly re-animated dead or with some other connection to the dead.

RedWombat · Oct 16, 2006

No way is anyone going to sue you for using the word "orc," so I'd say go for it. Orcs are in every fantasy thingy from here to Jotunheim. It couldn't possibly be defended realistically in a court of law--and if it could, they'd be too busy going after World of Warcraft, D&D and everything else before they got to anybody's novel. They've become a generic fantasy fixture, like trolls and elves and kobolds and whatnot.

There's all sorts of reasons not to use orcs, because of the aforesaid genericness, mind you, but not for legal reasons. If the story wants orcs, give it orcs, sez I.

Memnon624 · Oct 16, 2006

There's been quite a few usages of the word 'orc' in fantasy, outside of Tolkien. From roleplaying games (D&D, Warhammer, and a host of others) to video games (Worlds of Warcraft, Elder Scrolls) to fiction (R.A. Salvatore's The Thousand Orcs, Stan Nicholls' Orcs First Blood series, and Kevin J. Anderson's The Orc's Treasure, among others). Using the term 'orc' to describe a non-human race isn't enough to get you sued. But, if you create a race called Orcs who were created from Elves and who serve the Dark Powers of your world, you're going to wind up in the legal gunsights of the Tolkien estate.

Wikipedia has a good overview of Orcs in fantasy:Orc -- Wikipedia.

Memnon624 · Oct 16, 2006

Ursula beat me to it

HorrorWriter · Oct 17, 2006

BardSkye said:
Are "Halflings" copyrighted? A young writer I know wants to use a race he's calling halflings and one called orcs. I told him I thought both were inventions of Tolkien and his use might infringe their copyright.

He's tried contacting the publisher to find out but has had no answer as yet. I've advised him to change the names of both races but we're both still wondering.

Tell your young friend to use whatever words she wants to use in order to describe her race of characters. If she gets an agent, the agent or her editor WILL tell her what she can and cannot use. It's nothing to worry over at this stage of the book.

Inkdaub · Oct 18, 2006

I have seen halflings used in several stories. Orcs as well.

Torgo · Oct 18, 2006

You might also advise him that his work might be more interesting if it didn't use orcs and hobbits (or indeed elves and dwarves) at all - it places the book into a really generic fantasy universe which is unlikely to excite the market much.

RedWombat · Oct 18, 2006

Torgo said:
You might also advise him that his work might be more interesting if it didn't use orcs and hobbits (or indeed elves and dwarves) at all - it places the book into a really generic fantasy universe which is unlikely to excite the market much.

Unless he's aiming to subvert t'hell out of it, of course.

I've been fooling around with the touching love story between an elf and an orc for a few months now, myself... *grin*

Deleted member 42 · Oct 18, 2006

HorrorWriter said:
Tell your young friend to use whatever words she wants to use in order to describe her race of characters. If she gets an agent, the agent or her editor WILL tell her what she can and cannot use. It's nothing to worry over at this stage of the book.

That's usually what I say to people with similar questions, but on this one, I'd say avoid Orcs, and do not, at all, under any circumstances use Hobbits; that will lead agents and editors to think it's Yet Another Tolkien With the Serial Numbers Filed off.

BardSkye · Oct 18, 2006

This young gent has the talent to do his own worldbuilding, even if the basic story is traditional "quest" fantasy. I've already convinced him that Hobbits are an absolute no-no and Orcs would be much better changed to a name all his own, especially as his creations bear only a passing resemblance to them. He's a very sensible lad of 14. And it really wouldn't surprise me to see one of his works on the bookshelves of every store by the time he turns 18.

Again, many thanks for the answers!

HorrorWriter · Oct 18, 2006

Medievalist said:
That's usually what I say to people with similar questions, but on this one, I'd say avoid Orcs, and do not, at all, under any circumstances use Hobbits; that will lead agents and editors to think it's Yet Another Tolkien With the Serial Numbers Filed off.

I was referring to the original question about Halflings and Orcs. It's a no-brainer to avoid Hobbits. It's like re-writing The Cat in the Hat. I ain't gonna fly...

James D. Macdonald · Oct 18, 2006

The Tolkien estate is notoriously litiginous, and they're nothing compared to movie studios. You'd win if they decided to sue you; you'd go bankrupt in the meantime.

Using orcs etc. means a) you're in Lowest Common Denominator territory, and b) you're betting that you're never going to rise above Obscure. (The guys who wrote Holy Blood, Holy Grail didn't think about suing Dan Brown until after his book turned out to be a best seller.)

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