Intellectual Property Insights from Fishman Stewart
Mini Article – Volume 24, Issue 1
Share on Social

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
Related Content from Fishman Stewart
In February, Nike and Skims announced that they will be working together on a new brand, NikeSkims. The co-brand will create a new line of training apparel, footwear, and accessories specifically designed to meet the unique needs of women athletes.
Generally, federal courts have exclusive jurisdiction over copyright cases, and often, this presents an insurmountable paywall for individual artists and small businesses to vindicate their rights, especially where the value of the individual copyrighted works are relatively low.
Dedicated to raising public awareness about the importance of encouraging innovation and creativity throughout the world, the World Intellectual Property Organization (WIPO) annually observes World Intellectual Property Day on April 26 to showcase the role that patents, trademarks, industrial designs, copyrights and trade secrets play in our everyday lives.
Hold onto your foam fingers, sports fans – college sports just got a whole lot more interesting! The latest updates to Name, Image, and Likeness (NIL) rules are making student-athletes bigger than ever, and it’s not just about the game anymore.
Did a federal court in Louisiana recently decide that US copyrights are global rights? It seems so.
One of his most famous songs, “Lose Yourself” was recently at the center of a lawsuit. In 2019, Eminem’s publishing company Eight Mile Style sued Spotify claiming that Spotify streamed a number of its musical compositions without proper licenses.
One of the most common challenges is whether AI should be free to train on data that is protected by copyright and owned by third parties without first obtaining permission.
The U.S. Copyright Office (USCO) recently published its latest report on AI and “copyrightability.” In short, the USCO considers only some AI-generated works to be sufficiently creative as to deserve copyright protection, and thus, registration.
Back in the 1940’s assignments by independent contractors could be permanent and irrevocable. Things changed in 1976, when Congress overhauled the Copyright Act.
Generally, copyright protects the specific expression of ideas, such as the arrangement and presentation of visual elements, but it does not protect general concepts or styles.
IDENTIFYING, SECURING AND ADVANCING CREATIVITY®
