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Warner’s The Hobbit vs. The Asylum’s Age of the Hobbits

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Caffeinated Clint
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Clint is the creator, editor and maintainer of Moviehole.

It’s producers may not have been sent to the, erm, Asylum but the production co of the same name, known for producing rip-offs of studio tentpoles, have snagged a severe Chinese burn from the big boys today for their latest exercise in crazy.

Just a day before it was expected to hit shelves, Asylum’s “Age of the Hobbits” has been blocked for release by the courts. Yep, Warner Bros/New Line, owners of the “Hobbit” series, deemed the film a clear cash-in on their upcoming blockbuster and asked the courts to consider preventing it’s release.

Surprisingly – since so many of Asylum’s mockbusters (“Transmophers”, “Battle of Los Angeles, “2012 : Doomsday”) have managed to slip by and get successful home video releases – Warners won. The film, a fantastical adventure starring Bai Ling and Christopher Judge, won’t be hitting stores as expected.

Asylum tried to argue that “Hobbits” wasn’t a rip-off of “The Hobbit”, nor that it had anything to do with Tolkien, but the judge laughed that off.

Says The Hollywood Reporter :

The Asylum defended itself by saying that it had fair use to use “Hobbits,” saying the word referred to a real-life human subspecies, Homo Floresiensis, discovered in 2003 in Indonesia.

But on Monday, California federal Judge Philip Gutierrez agreed with the plaintiffs in a 32-page ruling.

“The majority of factors weigh in favor of a finding of likelihood of confusion, and no factor weighs against such a finding,” he wrote. “Moreover, the finding is particularly strong on the three factors that courts have found to be the most important, especially in the context of the Internet: similarity of the marks, relatedness of the goods and use of similar marketing channels.”

After determining that, Gutierrez moved on to the issue of likelihood of confusion. The Hobbit’s makers can’t claim exclusive rights to fantastical images of swords, mythical creatures and the like, but the judge saw the imagery in the posters in connection with the use of the term “Hobbit” and said that “one is immediately struck by the similarity.” Even the slight difference in titles isn’t enough to avoid confusion, he added.

As for Asylum’s contention that “Hobbit” is separate from the J.R.R. Tolkien universe, the judge didn’t buy it.

“Asylum’s argument appears to ignore the connection between the term used to describe Homo Floresiensis and Tolkien’s hobbits,” the judge writes. “Asylum treats the use of the two terms as completely unrelated, but the terms are in fact closely related: Scientists gave Homo Floresiensis the nickname ‘Hobbit’ because its appearance resembled Tolkien’s hobbits, as described in his novels. … Given that Homo Floresiensis received the nickname ‘Hobbit’ specifically because of its resemblance to Tolkien’s fictional hobbits, the Court finds Asylum’s argument that its movie is wholly unrelated to Tolkien’s work because it is about Homo Floresiensis to be disingenuous.”

Warner Bros, whose “The Hobbit” opens this Friday in the U.S, said : “This victory underscores the importance of protecting the unique work of our industry’s creative community from companies like Asylum, whose cynical business model is designed to profit from the work of others. Their intent to create confusion in the marketplace on the eve of release of ‘The Hobbit,’ one of the most anticipated films of the year, has met with defeat.”

I wonder how this will affect The Asylum’s upcoming fare, going forward? Will they have to start producing more original fare, rather than doing cheap knock-off’s? (Interesting to note that in March of 2013, around the same time WB releases “Jack the Giant Slayer”, that Asylum has their own ‘Beanstalk’ effort coming out, “The Giant Killer”). But not just The Asylum, there’s plenty of other shingles that also consciously make films deemed to cause confusion in the marketplace and cash-in on a bigger, better film’s title. What ’bout the recently-thwarted “Evil Dead” sequel that tried to snag the attention of Deadites, despite the involvement of series owner Sam Raimi!? All I know is, I’m gonna have to change the title of my latest script, the story of a young boy bitten on the ass by a poisonous huntsman, from “The Amazing Spider-Boy and the Huntsman”. I hope attached actors Tiffany and Debbie Gibson don’t mind.

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