The New(ish) Tolkien Estate Copyright FAQ

[William Cloud Hicklin]

If the owner does not "protect" its rights, by suing for infringement for example, the owner may lose some of its rights. So it is not surprising that the Estate publishes a list of what it frowns upon, whether or not the rights would be enforced by a court. Nor is it surprising that the Estate has, in the past, enforced its rights.

That I think is the key. If the owner of a trademark, in particular, and to a rather lesser degree a copyright, can be shown in court not to have enforced it, to have let infringements slide in the past, then the holder is at risk of losing his IP entirely. This FAQ is a pre-emptive defense to that.

To what extent in practical terms they actually go around suing fanzines or pulling YouTube videos- that's another question entirely.

WRT Amazon: as horrible as their fan-fic is, they do have permission. Paid through the nose for it, in fact. It's worth mentioning that Tolkien scholarship is unaffected: the Estate will grant permission, if your stuff passes muster, and without charge.

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I think another element here is defense specifically of the name Tolkien, since that is one thing which was not licensed in the 1969 UA film rights deal, and which therefore has never been owned by Saul Zaentz (responsible for all the videogames etc by a very generous interpretation of the "marketing and merchandising" provision). Note that some years ago the Estate was able to force the Zaentz subsidiary to change its name from "Tolkien Enterprises" to "Middle-earth Enterprises." Add to that that the JRRT colophon is in effect the Estate's imprimatur, its 'seal of approval' for official and officially-approved works.

(Caveat: IP was never my area of practice... although I did get an A in the course!)