Days before Warner Brothers Entertainment Inc.'s film adaption of J.R.R. Tolkien's The Hobbit hits theaters, the studio and its lawyers at Jenner & Block have halted the advance of an unrelated film that was poised to cash in on the dwarves-and-dragons blockbuster.
U.S. District Judge Philip Gutierrez in Los Angeles issued a temporary restraining order on Monday to halt the release of Age of the Hobbits, a direct-to-DVD production featuring hobbits locked in battle with "komodo-worshiping, dragon-riding cannibals." Siding with a Jenner team led by Los Angeles-based partner Andrew Thomas, the judge ruled that The Asylum, the movie studio behind Age of the Hobbits, is trying capitalize on Warner Brothers' big-budget release and that consumers are likely to confuse the two films. You can read Gutierrez's 32-page ruling here.
Big movie studios are no doubt welcoming the ruling, because The Asylum has been driving them crazy for years now. The company is known for producing "mockbusters"--i.e., low-budget, straight-to-DVD movies that sound like Hollywood blockbusters. Two days before Transformers hit theaters, The Asylum debuted Transmorphers. When Marvel Studios came out with Thor, The Asylum answered with Almighty Thor. The Asylum's films always cost under $1 million to produce, and always make a profit.
No studio has ever won a ruling that The Asylum's business model is illegal. Universal Studios, which brought us the flop Battleship, sued The Asylum in April over a copycat called American Battleship. The studio dropped the case in May, after The Asylum agreed to change the name of the film to American Warships and to tweak its promotional materials.
Warner Brothers's lawyers at Jenner joined the fray on Nov. 7, alleging trademark infringement, unfair competition, and false advertising related to Age of the Hobbits. The Asylum told The Hollywood Reporter that it meant to "vigorously defend [its] rights" and hired Los Angeles based solo practitioner Scott Meehan to oppose Warner's efforts. At a hearing on Friday, Meehan argued that the film doesn't conjure images of Tolkien's Middle Earth. The plot, he explained, relates to a recently discovered human sub-species in Indonesia with the Latin name Homo Floresiensis, which scientists have likened to "hobbits." And because "hobbit" has come to simply mean "small person," The Asylum's use of the term is protected by the fair use doctrine, he argued.
Gutierrez has now made it pretty clear that he intends to reject The Asylum's defenses. "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." he wrote. The Asylum likely intended to deceive viewers, the judge added, noting that early promotional materials for Age of the Hobbits included swords and dragons, and that the film's DVD release date came within days of The Hobbit hitting the big screen on Dec. 13.
Meehan told us he's "very disappointed" with the ruling. "I think it's either nominal fair use or traditional fair use. It can't be neither," he said. Meehan added that if Gutierrez issues a preliminary injunction in the case, he'll appeal to the U.S. Court of Appeals for the Ninth Circuit. A hearing on a preliminary injunction is scheduled for Jan. 28.
Jenner's Thomas declined to comment.
