Intellectual Property Insights from Fishman Stewart
Mini Article – Volume 24, Issue 1
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The Fellowship of Fandom
By Kristyn Webb
Demetrious Polychron was a big fan of The Lord of the Rings books by author J.R.R. Tolkien, which describe the world of Middle Earth where Hobbits, Elves, Dwarves, Wizards, and other creatures engage in an epic battle of good and evil involving a ring with magical powers. The books were first published in 1954 by HarperCollins and have sold over 150 million copies. Tolkien passed away in 1973 and his estate administers the rights in a number of Tolkien’s works.
During Tolkien’s life, and after his death, various rights have been acquired by companies such as Warner Bros (which made motion picture adaptations of The Lord of the Rings in the early 2000’s), Embracer Group (which bought motion picture, merchandising, theme parks, and other rights in 2022), and Amazon (which acquired rights to make the Rings of Power series that aired in 2022).
In 2017, Polychron reached out to the Tolkien Estate to request its blessing (and license) for Polychron to continue drafting a seven-book sequel series to The Lord of the Rings. The Tolkien Estate did not respond. Polychron hired an attorney, who contacted the Tolkien Estate on his behalf again in 2019, requesting a license to use the necessary intellectual property rights to publish the first of the series titled The Fellowship of the King. The request was denied, as the Tolkien Estate believed it contravened the wishes of the now-deceased author that any sequels to The Lord of the Rings should ever be made.
In 2022, Polychron went ahead and self-published the book anyway. Around the same time, Amazon’s Rings of Power (a prequel to The Lord of the Rings) series began airing. Then, Polychron sued Amazon for copyright infringement, claiming that the Rings of Power were based on his book, and the Tolkien Estate sued Polychron alleging that his book was an unauthorized derivative work that infringed its copyrights in The Lord of the Rings.
Polychron lost both cases. The court concluded that Polychron’s book was indeed an unauthorized derivative work, and thus, because The Followship of the King itself was infringing the Tolkien Estate’s rights, it could not be the basis for an infringement suit against Amazon. Polychron was ordered to destroy all copies of his book and pay attorneys’ fees to the Tolkien Estate and Amazon (around $134,000).
Often, copyright owners decline to bring legal action against fan fiction writers because suing one’s own fan base tends to be bad for business. However, when fans try to commercialize their works, or attempt enforce their rights against third-party licensors, the results for fan fiction writers are like being cast into the fires of Mount Doom. It may be wise for fan fiction writers to not meddle in the affairs of certain copyright owners, “for they are subtle and quick to anger.”
Kristyn Webb is the Group Leader of Fishman Stewart’s Copyright Practice Group, and holds a Master’s Degree in Copyright Law from King’s College London.
Published January 12th, 2024
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