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Old 06-13-2022, 01:01 PM   #1
Thinlómien
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Tolkien The New(ish) Tolkien Estate Copyright FAQ

I'm someone who hardly keeps up with news about the Tolkien Estate, but I couldn't avoid an uproar on social media a couple of months ago that was caused by the new FAQ of the Estate. I didn't see any discussion on the 'Downs about this, so I thought I might as well start it.

Here's the new policy: Frequently Asked Questions

So no events or fan clubs or zines without the permission of the Estate. No fan fiction. No documentaries. No composing music to Tolkien's words, no use of Tolkien's languages except for the most strictly private purposes. You want to name a park after Tolkien? Tough luck, it's a trademark. And no public Tolkien readings either without a permission.

I'm quite appalled. The copyright debate in fandom has been going on for decades, and while I understand they want to preserve Tolkien's legacy and they need to make some kind of a statement to protect the copyright legally, I am not really happy about the example they're setting with this. So many people around the world love Tolkien, and their love is what keeps his works alive. Now the Estate wants to limit how people are allowed to express that love. I don't think the Professor himself would have approved banning making music to his words, for instance. It all seems very... mean-spirited and little to me, like Sharkey's rules. Especially since we're talking about an author who's been dead for decades and whose children have now all passed as well. This all isn't as personal for the Tolkien family as it used to be.

Thoughts?
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Old 06-13-2022, 01:30 PM   #2
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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
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Old 06-13-2022, 01:35 PM   #3
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tl;dr version of the above: like Thinlómien said, this is a legal exercise designed to protect their trademark and copyright. They only actual mean it in commercial contexts, and I'm pretty sure in a non-commercial context it would fail badly in court.

hS
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Old 06-13-2022, 02:06 PM   #4
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This is really bad. And it looks bad on the Estate too. It's one thing to protect Tolkien's legacy by, say not allowing another screen adaptation of his unfinished works, and quite another to ban anyone from basically enjoying his works out loud. At first glance it comes across as mean and spiteful. At second glance, it comes across as protecting their income more so than Tolkien's legacy. Because Tolkien's legacy only flourishes from fanfics and music and fan art and all that jazz. Selling the stuff - yeah, I think that's a whole other story, and it's a fairly standard understanding that you can't sell a fanfic without permission. But creating any of that stuff? Petty, spiteful, greedy, unenforceable, quixotic, and frankly the wrong battle against the wrong people. If they keep getting more and more worked up about this stuff, they will eventually die on this hill. I can't see how such a stand can last if it comes to actual legal action (and public backlash, TBH).

I used to see the Estate as a bit of a Treebeard - perhaps a little old-fashioned and slow to react, but earnestly trying to protect the "paper forest". But this makes it sound like it's turned into a Sackville-Baggins.
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Old 06-13-2022, 04:31 PM   #5
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Quote:
Originally Posted by Galadriel55 View Post
At second glance, it comes across as protecting their income more so than Tolkien's legacy.
I think that's certainly the real point. How could they, on one hand, allow Amazon and others with deep pockets to pretty much write their own Tolkien-based (nominally, at least) fiction, and act threatened by someone like you or I making a tune to Sam's Troll Song, or transcribing a piece of current music into Quenya?

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Originally Posted by Galadriel55 View Post
I used to see the Estate as a bit of a Treebeard - perhaps a little old-fashioned and slow to react, but earnestly trying to protect the "paper forest". But this makes it sound like it's turned into a Sackville-Baggins.
I see Christopher as the last bastion guarding his father's legacy. Times have irrevocably changed.
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Old 06-14-2022, 09:06 AM   #6
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Very much agreeing with all of you. It is very ironic they're taking such a strict stand while letting Amazon run rampant with their rather liberal interpretation (to put it nicely) with the Estate's blessing. It does come across as greedy money grubbing, and it is not very flattering, as I said, as it's the younger generation further removed from the Professor himself in charge of things now. They seem more preoccupied with securing the cash flow realted to the Tolkien name than with preserving his artistic and intellectual legacy.

Thank you, Hui, for bringing in the legal point of view. It is at least a little comforting to know this policy looks unlikely to succeed in the court. Which makes it seem very amateurishly written, by the way, and all the more eyebrow raising for that reason...
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Old 06-14-2022, 02:14 PM   #7
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I cannot claim any specific familiarity with British or international copyright or trademark law. That said, intellectual property laws generally are intended to protect against a few things. First, one should not be allowed to profit or benefit from the use of another's protected materials. This extends to using protected material both directly (for example, the publication of a sequel to LoTR) and indirectly (by using protected material in a manner that would lead the public to believe that a product is affiliated or sanctioned by the owner of the trademark or copyright). Another protection is to avoid product confusion, such as publication of material that would lead the public to believe that it is related to protected material. In addition, the right holder is protected from diminution in the value of the protected material due to infringement. What remedy may be available depends, in part, on whether the infringement is intentional, which could result in an award of damages, or inadvertent, which might still entitle the owner to an injunction. There are likely gradations in between.

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.

The idea is that Tolkien worked hard on his creation. It has a value as an asset. The trademarks and copyrights may be the only real marketable asset that the Estate has. Anyone who has read Letters knows that Tolkien was not wealthy by any stretch of the imagination, until perhaps late in his life. He and his heirs have the right to benefit from his labor.

All this said, as Huinesoron states, trademark and copyright protections are not limitless. Enforcement, both as a legal matter as well as a practical matter, is generally limited to prevent exploitation. Thus simply mentioning LoTR or Tolkien's name in a conversation will not get you sued, but selling keychains with his monogram might. Parody, critical and philosophical analysis are also generally not protected. The Estate might have the technical right to protect against "fan fiction" but it also benefits from it. And as a practical matter, unless something is done for profit or some financial benefit or it harms the value of the protected work, it would not be worthwhile for the Estate to crack down on such things both from a financial and a public perception perspective.
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Old 06-17-2022, 12:31 PM   #8
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Quote:
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!)
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