The New(ish) Tolkien Estate Copyright FAQ

[Huinesoron]

Oh, I wrote a thing on this! Or three things, actually, but not in a convenient place so I'll copy-paste them over.

General Overview

This is mostly from a fanfic perspective. I'm not a lawyer, but I AM a regulatory chemist, so I at least move in the same documents as them. That means part of my job is trying to work out exactly what this sort of thing allows us to do, and: hoooooo boy this is badly done.

Here's what I think they're trying to say:

• The name 'TOLKIEN', and the JRRT logogram, are trademarks of the Estate. If you call your company "Tolkien Embroidery", or use the logogram in your logo, you're implying that you are officially approved by the Estate, and could draw trade away from the Estate, thus violating their trademark.
• Things made by JRR and Christopher Tolkien, including the text of the books and the Professor's art, are copyright. The Estate upholds that copyright, and thus has the exclusive right to copy and distribute these works. If you reproduce or attempt to sell chunks of the work without authorisation, you would be violating copyright.
• Therefore, don't try to sell things with the name on it or using big chunks of the Professor's works.

A bit heavy-handed, but within their rights. I think it's dumb to ban fanzines and festivals from calling themselves "Tolkien Such-and-such", but if they've registered the trademark they can do it.

But here's what they've managed to write instead:

• Any map of Middle-earth is by definition a copy of Tolkien's, and thus copyright.
• Using any characters, places, or events from Tolkien, in any written context, is copyright.
• Any use of the Elvish languages or scripts is copyright.
• Use of Tolkien quotes or Tolkien's pictures, or the trademarks, in pictoral artwork is copyright/trademark.
• Using any Tolkien quote for any reason requires permission.
• Setting any of Tolkien's words to music is copyright.
• Streaming yourself reading Tolkien violates copyright.

This falls across a spectrum from the usual fanfic grey area, to an insanely strict interpretation of copyright that I'm positive wouldn't hold up in court. They clearly know this - the only time they talk about taking action is in a commercial context, elsewhere they just don't give permission.

But that's not all.

Even if they were within their rights to do what they've written (which I don't think they are), they've written it so badly, because... what do they mean by "publish"? Are they using the common-use term ("print and sell for profit"), or the specific legal term ("make available to the public")? The context strongly suggests the former: they use the phrase "publish fan fiction or other books", and talk about "any form of publication", implying a concrete object. But the structure of their answers assumes the latter.

• They jump straight from "publish fanfiction or other books" - which implies commercial publication - to "you can't create materials referring to the characters". Is there an implicit "and publish it" in there? I would argue yes; Eru knows what they'd say.
• For the languages and scripts, the cases they consider are "private interest and amusement", "publication", and "in connection with any group activity".
• Given their draconian phrasing on fanfic, they're bizarrely lenient on merchandising. By the text of the FAQ, I would be absolutely fine to sell a text-free fan-comic covering the entirety of LotR in minute detail - but as soon as I wrote the words "The Lord of the Rings" on the cover, I would be in violation of copyright. That... can't be what they want to be doing, right?

It's just... really badly written.

(Also, they seem to have provided the personal (company) email address for Amazon's head of global publicity, rather than a group email like a sensible person would. I'd hate to be Courtney Brown right now.)

Fanfiction & Parody

As of 2014, UK law (under which the Estate has written this FAQ) provides the following as Fair Dealing defences against a charge of copyright violation:

• Research and study (so Tolkien scholarship and Elvish dictionaries should be okay).
• Criticism or review (which might cover the PPC).
• Reporting of current events (so you can call Putin Sauron if you like).
• Parody, caricature, and pastiche (see below).
• Quotation, for criticism, review, "or otherwise".

I contend that all fanfic falls under one or more of the fourth category.

• Parody - imitation for humourous effect. There's a lot of this about, including published stuff (Bored of the Rings et al). There is no requirement that the names be changed in a parody, so anything which pokes fun at Middle-earth would fit.
• Caricature- simplifying or exaggerating the subject matter, including for entertainment purposes. This covers a lot of bad fanfic! If Legolas is sparkly and perfect, and Boromir is an evil monster, you have a caricature defence.
• Pastiche- combining text from various sources, or imitating the style of another author. This is your serious fanfic, which tries to sound like Tolkien. It's also how you defend using names and events from the books, if you're not using the Quotation Or Otherwise defence.

Whether these defences will be accepted depends on the usual US fair use concepts - how much you've used, and if you're impacting the copyright owner's profits. But I reckon, if it ever came to a court case, fanfic would make an excellent showing of itself.

How New Is This?

The current FAQ appears February 26th this year, as a new page.

The previous FAQ sat here, and its policy on fanfic was:

~

Is it possible to write stories that are set in Middle-earth?

The short answer is most definitely NO!

We understand only too well the fascination and enjoyment that the world of Middle-earth can bring, but the fact remains that this is an imaginary world, created by the author on his own terms and in his own right. So, however tempting, to publish this type of fan-fiction for personal or commercial purposes, even online, is absolutely not authorized.

In the era of the Internet, with people selling ‘homemade’ literary works on websites all over the world, it must be unambiguously stated that the Tolkien Estate has never authorized the commercialisation or distribution of such material, and has no intention of doing so.

~

... which is the same thing as the current one, but in less lawyerly speak.

The "short answer" phrasing is relevant, as is the repeated use of "authorized". They do not AUTHORIZE it, but what they're actually CONCERNED about is commercialisation.

That FAQ was in place from at least March 2015. Prior to that, it sat here, though at various times it went missing from their site design. That version spans four pages, and on page 2, in the context of The Children of Hurin, says:

~

Can I / someone else write / complete / develop my / their own version of one of these unfinished tales ? (or any others)

The simple answer is NO.

You are of course free to do whatever you like for your own private enjoyment, but there is no question of any commercial exploitation of this form of "fan-fiction".

Also, in these days of the Internet, and privately produced collectors’ items for sale on eBay, we must make it as clear as possible that the Tolkien Estate never has, and never will authorize the commercialisation or distribution of any works of this type.

The Estate exists to defend the integrity of J.R.R. Tolkien’s writings. Christopher Tolkien's work as his father’s literary executor has always been to publish as faithfully and honestly as possible his father's completed and uncompleted works, without adaptation or embellishment.

~

So: no, you cannot sell it, and the Estate does not authorize it.

That goes back to 2007, and appears to be the earliest version of the site that wasn't just a splash page.

So: from a fanfic perspective, all that's changed is the language. The repeated invocation of TOLKIEN as a trademark, and the explicit statement that you can't use the Elvish languages, is new. (The previous FAQ just directs you to the permissions page, which doesn't say anything about it.)

hS