Fan fiction and the law

Thoughts on the Tolkien estate’s recent legal battle

I’ve already confessed that I write fan fiction. My biggest body of work concerns Lord of the Rings, my favourite book. I’m also distinctly aware of the legal might of the Tolkien Estate. My co-author and I hesitated before publishing our stories publicly—initially, they were simply for our own entertainment—but we decided that only monetisation would get us into trouble. We’d be fine, because we’re not selling our fiction.

It seems that our instinct was right, in light of what has happened to US author Demetrious Polychron. The BBC reported that Polychron attempted to sue the Tolkien estate and Amazon for the TV series, Rings of Power, alleging that it infringed the copyright in his 2022 book, The Fellowship of the King, Polychron’s sequel to The Lord of the Rings. Unsurprisingly, perhaps, the judge ruled that Polychron had no case; but additionally, he found that it was Polychron who had infringed on Amazon’s copyright. The Tolkien Estate then filed a lawsuit against Polychron, and successfully obtained an injunction to stop Polychron’s The Fellowship of the King being further distributed. The BBC report continues:

On Thursday Judge Steven V Wilson called Polychron's lawsuit “frivolous and unreasonably filed” and granted the permanent injunction, preventing him from selling his book and any other planned sequels, of which there were six.

The court also awarded lawyer's fees totalling $134,000 (£106,000) to the Tolkien Estate and Amazon in connection with Polychron's lawsuit.

The estate’s UK solicitor, Steven Maier of Maier Blackburn, said: "This is an important success for the Tolkien Estate, which will not permit unauthorised authors and publishers to monetise JRR Tolkien’s much-loved works in this way.

“This case involved a serious infringement of The Lord of the Rings copyright, undertaken on a commercial basis, and the estate hopes that the award of a permanent injunction and attorneys' fees will be sufficient to dissuade others who may have similar intentions.” [my emphasis added]

I admit freely that not all fan fiction is good, and indeed, some is execrable.¹ Much of what I read, however, is excellent. I haven’t read Polychron’s work, so I can’t comment on it.

It seems that what gets the Estate’s goat,² however, is not the quality of any additions to the story—if that were a concern, the Estate would not have licensed Amazon to make Rings of Power, a tale both boring and unfaithful to the original³—but rather, any attempts to sell fan fiction on a commercial basis. It’s all about the mammon, folks. One wonders what Tolkien (a devout Catholic) would have thought about this, given the warning in Matthew 6:24.

It’s always interested me how ideas about copying and copyright have shifted over time. In medieval Europe, it was normal to copy other people’s work wholesale into one’s own work, without attribution, and indeed, it was regarded as flattering.

A friend of mine has called the King Arthur stories ‘the oldest form of fan fiction’. I know exactly what he means. The first use of King Arthur in a story rather than a history is in Y Goddodin, a tale of British Romano-Celts fighting the incoming Germanic tribes. Other early Welsh tales feature characters familiar from later versions, including Kay (Cei), Guinevere (Gwenhwyfar), Bedivere (Bedwyr), Gawain (Gwalchmei) and Merlin (Myrddin) and Mordred. There is no Lancelot; he was probably added by the composers of the chanson de geste. The best known ‘fan fiction’ is therefore Thomas Malory’s Le Morte d’Arthur, a 15th century English version of the tale, drawing heavily upon earlier tales from various sources.

Photo by Andrey Zaychuk on Unsplash

Of course, there is nothing new under the sun. All good stories draw on pre-existing myth and legend, something Tolkien himself did with great élan.

But once printing was developed—and it’s worth noting that Le Morte d’Arthur was printed by Caxton, and represents a harbinger of the success of the publishing industry—printers profited by taking the work of an author, and reproducing it without permission. In the early 18th century, the English Parliament passed the Statute of Anne to give ownership of works to authors, to prevent others from disseminating their work. Modern copyright is the heir to this innovation.

On the one hand, I’m the author of numerous books of various kinds, all of which are sold commercially. It seems fair that I should be able to get some proceeds, given the considerable effort I put into those works, and that other people should not be able to lift my work wholesale and present it as theirs.

On the other hand, however, there comes a point when stopping anyone from using your work unless they pay an exorbitant fee stifles creativity. There is also no doubt that the United States in particular has put pressure on other nations to extend protection of intellectual property for longer and longer periods of time, well past the death of the author or creator. This has always struck me as ironic, given that the United States was a notorious venue for copyright piracy of British books in the 18th century.

I feel that the balance with regard to copyright isn’t quite right; among other things, copyright should not last as long as it does.

I don’t think serious fan fiction authors—yes, there are a bunch of us—need to worry about Polychron’s case, as long as they don’t (1) sell their works or attempt to commercialise them; (2) send their work to descendants of the author; and then (3) sue the author’s estate.

One is tempted to wonder whether it was a publicity stunt? I certainly would not have advised Polychron to bring legal suit against the estate in those circumstances. It was a mighty expensive publicity stunt, if so… In any case, I don’t think other fan fiction writers need to be concerned.

1. Refer to the Faramir x Úgluk fan fiction mentioned in the previous post. Why? WHY?

2. As for what manner of beast might get someone’s goat in Middle Earth, you can read this short story by me, when a barrister with the unfortunate name of Denethor (after the late Steward) is annoyed by the tricks his younger brother teaches his sons. No, Tolkien Estate, I don’t get money from this. It’s all for the love of it, and to give myself a good laugh.

3. It’s fine to be unfaithful to the original as long as you do it well, and ensure it keeps the general tenor and sense of the original work. To do it badly, however, is the ultimate insult.