Long-standing "mockbuster" film studio The Asylum has been flirting with copyright ever since its inception in 1997 and has induced frowny faces in lawyers numerous times in the past, more recently tangling with Universal over American Warships' similarity to Battleship, and with 20th Century Fox over low-budget epic The Day The Earth Stopped. Strangely, they managed to get away quite easily with their 2007's Transmorphers, which was released two days after Transformers.
Perhaps it's unsurprising that The Asylum was already well-prepared for the latest threats from New Line Cinema and book publishers The Zaentz Co., who both claim that the independent studio's newest film Age of the Hobbits, violates a trademark in the protected phase by using the word "hobbit". The Asylum riposted smoothly with the following statement, which claims that the word "hobbit" is protected by fair use, as it has been used for almost a decade as a nickname for an ancient subspecies of human.
Age of the Hobbits is about the real-life human subspecies, Homo Floresiensis, discovered in 2003 in Indonesia which have been uniformly referred to as 'Hobbits' in the scientific community. As such, the use of the term 'Hobbits' is protected under the legal doctrines of nominal and traditional fair use. Indeed, a simple Google search of Hobbits and archaeology reveals dozens of articles containing the term "Hobbit(s)" in the title.
Of course, there's no question as to whether The Asylum produced the film in order to feed off the popularity of The Hobbit; in keeping with their long-standing tradition, Age of the Hobbits will be released on DVD on December 11th, three days before The Hobbit hits cinemas. Perhaps New Line Cinema fear confusion will have audiences accidentally paying for the wrong film. Take a look at the trailers below and see if you can tell which one is which.
A representative for The Asylum also pointed out, in a statement made to The Hollywood Reporter, that their studio have already taken steps to combat any confusion between the two films.
Age of the Hobbits is not about the creatures in Tolkien's novels. Indeed, the artwork contains a disclaimer immediately below the title to that effect.
Yes, you can tell The Asylum have become experts at covering their asses; the tagline for the movie is, "They're not Tolkien's hobbits."