Subject: Tolkien Estate Put Out a Blanket Ban On Fan Stuff
Author:
Posted on: 2022-03-07 00:26:20 UTC
Uh, we talked about this in the Lounge. I honestly don’t know what to say about it personally.
Link to the announcement thing: https://href.li/?https://www.tolkienestate.com/frequently-asked-questions-and-links/?fbclid=IwAR3oyGPRKgf1sE3B9D_3e1WtVJaYV0yZHConYXedDJY79tDy8SKmYetqrY4
It had to end on an Arda mission in order to work the way I planned.
As far as I can tell, absolutely no one is taking this seriously, or even talking about it much at all. The "no fanworks" policy may not even be new—it's only getting attention because they recently launched a new website design.
~Neshomeh
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
Did they have to pay royalties or not?
I still intend to subject the planet names in a fictional star system whose world names are Pokémon-themed to a few language changes' worth of sound-shifts, regardless.
Cygames, Inc. (in)famously ban sexually explicit fanworks of the game Uma Musume Pretty Derby in order to avoid defaming the real-life owners of the race horses portrayed in the game. What's the comm's opinion on this?
...
Hey, hS, got a fic idea for ya.
Drip.
Drip.
Drip.
I open my eyes and look around blearily. Last thing I remember, I was sitting at my computer, just having published my latest Lord of the Rings fanfic (The Tousel-Headed League, my second Hemlock Holmes and June Whitson story); now I'm in a dark room, tied to a chair, listening to the sound of water dripping from the damp ceiling.
"Hello?" I call, my voice echoing unpleasantly. "What's going on?" I think for a moment. "Is this OFUM?" I ask hesitantly. "It seemed much nicer in the fics..."
Click. A white light fills the room. I cringe away, eyes watering, trying to give them time to adjust.
"Mr... Huinesoron," says a man, in the most perfect Received Pronunciation English accent imaginable. "That name is not doing you any favours."
"I know it's not grammatically correct..." I raise my head, blinking against the light. There are three of them - two men and one woman, all dressed in what looks very much like black leather. "This is OFUM, right?"
The woman sniffs. "We already have Miss So-Called Cam in custody," she says, in exactly the same accent as the man. "I suggest you worry about yourself."
"Believe me, I am." I swallow, and try to shift my hands against my bonds. "Listen, what's this all- who are you?"
The woman folds her arms across her chest. I see that she is holding a black horse-crop in one hand. "I... am TOLKIEN," she says.
I stare. "Um. You don't look like Tolkien?"
The whip slashes across my cheek; if the chair hadn't been fastened to the floor, I would have toppled over. "Do not speak The Name!" the woman snarls. "It is trademarked!"
"Fine! Fine!" I yelp, my face burning with pain. "You're Tol- um, that. Fine! But why am I here?"
The man who spoke before steps forward. He has a scabbard on his belt, with a long and ominous looking sword poking out of it. "You are here to answer for your crimes against the Tolkien Estate," he says, looming forward.
I can't help myself. "You'd better watch yourself," I say, "she doesn't like people saying that name."
The man smiles coldly. "But of course I can say it," he says. "I am TOLKIEN."
The third man, slighter and nervous-looking, holds his hand up. "I'm TOLKIEN too," he says in the very same accent.
"And I'm Alpharius," I blurt out. The whip cracks down on my other cheek, and I cringe.
"This is no laughing matter!" the woman snaps. She glances over her shoulder, then adds, "Nor will you find our colleagues at Games Workshop as forgiving as we are."
"As lenient," the nervous man hisses. "You don't want The Mouse to hear you quoting Star Wars."
"They are American," the woman says dismissively. "I claim... 'fair use'."
I'm still trying to put this all together into something that makes the blindest bit of sense. "Is this... is this about my fanfic?"
The first man growls, a deep and vicious sound. "Fans," he rumbles. "Fiction. As if you know the meaning of either word."
"Er." I squirm against the ropes again. "I think I do, actually?"
"Fiction," the man says, leaning in, "is what TOLKIEN owns. Fans are a viru-" He hesitates, glancing back at the men at the back. "A bacterium," he amends. "Your so-called 'stories' are theft. And it will no longer be tolerated."
I really want to raise a hand, like the naughty child in class. "Which stories are we talking about?"
The whip cracks down again, and my ear blazes with pain. "All of them!" the woman declares. "You write about The Shire(c), Gondor(c), Hobbits(c), rings(c), good versus evil(c)... it is an intolerable violation of the rights of TOLKIEN!"
"I don't-" She raises the whip again, and I cower in my chair. "All right!" I squeak. "I get it!"
"You don't get it," the man at the back speaks up. "Only TOLKIEN is permitted to receive it(c). That's the point."
"Okay." I'll say anything at this point. "You want me to stop writing Tolk-" The whip comes up again. "Sorry! Um, fanfic about Middle-" The larger man leans forward threateningly. "No! I meant... you want me to stop doing... the thing that I was doing. And I get that. And I will. And I'm sorry."
The three straighten up and look at each other. "Well, TOLKIEN?" says the burly man. "What do you think?"
"I don't like it, TOLKIEN," says the woman. "He gave in too easily."
"But we have a long list to work through," the slight man - TOLKIEN, I guess - says, stepping between them. "I say we hand him over; if he dares defame TOLKIEN by mentioning our property ever again, we can bring him back in."
"Agreed," the other man says, and after a moment, "agreed," the woman concurs. The three turn without a word and walk out of the room. The last one out reached sideways and clicks the switch, leaving me in darkness again.
"Um." I clear my throat, hearing the echoes again. "Hello? I'm still in here?"
There is a rustling sound, like something very large slithering across the concrete floor. Then, very close to my ear, I hear a hissing, rattling breath.
"Hello, Huinessssoron," whispers a sillibant, serpentine voice. "Let'ssss talk about a little sssstory called 'Harry Potter and the Sssssswisss Army Broom'..."
Games Workshop don't appreciate that sort of thing. Serpent!Rowling comes by way of The Midnight Society; I've no idea what her current views on fanfic are, but I figure she'd see this scenario and just NEED to stick her scaly head in.
hS
It's really, really pleasant to see good fic come out of something as nasty as this.
I'm wondering what they would have done to me. I have not only written fanfic, I've written bad Suefic. I haven't written much fanfic compared to you, though. Would they be more harsh for it being bad, or would it be the same because they apparently hate all fanfic?
That means part of my job is trying to work out exactly what this sort of document allows us to do, and: hoooooo boy this is badly done.
Here's what I think they're trying to say:
This is entirely reasonable! 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:
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.
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.
hS
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:
I contend that all fanfic falls under one or more of the fourth category.
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.
hS
With such brilliant characters as Soddo Laggins and the mysterious philosopher Sandalf.
He’s just an old dude in grey with a gun.
Our quarantine list has always been about respecting the feelings of authors. Authors, of course, being a subset of people.
But now that Tolkien's immediate family are all gone, this "estate" somehow thinks it has the right to control content in a way that the actual Tolkiens never attempted. And this "estate" didn't put a single muscle's flex of effort into producing the Middle-earth legendarium. And, of course, an "estate" is a legal entity, not a person. I do not respect the feelings of legal entities.
So in this instance, I'm pushing that the legendarium not be added to our quarantine list as usual. I will, of course, respect community guidelines if quarantining the continuum is what the community ends up doing, but I don't feel we're under the usual respect-based obligation to do so in this instance.
—doctorlit feels that intellectual properties ought to enter the public domain much, much faster
or at all
Just in case my strident objections to the Estate's new policy weren't clear enough. {= P
~Neshomeh
ding dong
Oh, hold on...
. . . . Huh, looks like I'm being sued.
"Legal"* opinion coming later, but I deny the Estate's moral right to do this. I will keep using my screenname and writing fanfic, whether I have to self-host or sharding samizdat it. Middle-earth is too important to me.
hS
I Am Not A Lawyer, but I *am a regulatory chemist, so I at least move in the same documents as them.
... I figured I would try to pre-empt that here, even though I am not a lawyer.
In the U.S., it's pretty clear that the Tolkien Estate has no right to do this, or at least their right to do so is very limited. They'd have to fight individual authors and prove that their fan work is likely to satisfy people who would otherwise have bought LotR stuff, which is very hard to prove. A fanfic is not likely to use the name of Tolkien's books because the intended audience wants to see something new. Only the worst Suefics outright plagiarize the lines and descriptions in the books. Fanfic is generally free, so copyright holders are never directly harmed by fanfic unless the fic in question was privately commissioned. If they want to go for sites that host content like FFN, AO3, DeviantArt, and others, they'll have to deal with safe harbor rules, which (broadly) say that sites are not legally responsible for the content users post.
You might as well claim that all fantasy is owned by the Tolkien Estate because LotR codified the tropes and language that define the genre. This, obviously, is a ridiculous argument with no merit.
As for the PPC, what we do is parody a derivative of a copyrighted work using our own fictional world and framework. What we do is so far removed from the copyright holder, I can't even fathom us getting in legal trouble for making a mission. Even for those of us who made OCs from Middle-earth, those characters and their experiences are owned by us.
I think UK law would apply here, since that's where the Tolkien Estate is based. I know way less of the law there than I know US law (and, again, I'm far from a lawyer or legal scholar in either country). The arguments therefore become a bit different; fan works would still fall under what's called Fair Dealing, because a fan work is for "private study" (that is, fanworks are generally not done as a commercial endeavor and the final product is not likely to be sold in the future).
Failing that, the best defense is that your fan work is criticism, review, or parody. The rules governing those defenses seem to line up pretty closely with US ones.
For our purposes here, I think that the PPC is small enough that we don't really need to worry about this one way or another. For bigger websites, I'll let OTW handle the legal side of things since they actually know what they're doing and I do not. I just don't like handing out incomplete information online and thought that this was kind of an interesting tangent. :-)
it's about respecting the feelings of the original creator. Even if it's legal to write twice-removed fics in a quarantined continuum, we still don't allow them for this reason.
In this case, I think it's safe to assume that the people who created the work in question (J.R.R. and Christopher Tolkien) were fine with fan stuff. J.R.R. Tolkien got tons of LotR-inspired gifts from fans and enjoyed them. Christopher Tolkien absolutely knew about fan works and never asked for them to stop.
The only reason for things to change now is because the legal construct that happens to hold the copyright Said So.
Even assuming the Tolkien Estate does have the legal right to just ban all new works that approach any of the properties they own, I think that playing by their rules is both ridiculous and dangerous.
Fan works as a whole are not copyright infringement. They're inspired art made by passionate people who want to share their contributions with the world. A ban this broad is not just a canon quarantine; it's an attempt to police all discussion of a hugely influential piece of culture and prohibit all engagement with it outside of watching the movies or reading the books (i.e. paying for it).
I am of the opinion that all works draw inspiration from other things that came before. If the Tolkien Estate wants to limit that creation, then I will oppose it. By extension, if the community chooses to block off the most influential continuum to fandom outside of Star Trek because a trust went on a power trip, then I will consider leaving. (Big whoop from someone who hasn't officially contributed anything, but it's true.)
I can grudgingly respect the wishes of an individual, living author who's afraid that freely permitting fanworks could result in them losing the rights to their IP, even if I don't actually agree with them.
NEVER will I EVER support shutting down all fan expression in favor of protecting a corporate entity that's been profiting big-time thanks to the very same fan-love they're trying to quash. My feelings about this are unprintable on a PG-13 forum.
~Neshomeh
In case you can't visit the link, below is the secotion in question:
Can I publish fan fiction or other books or material based on Tolkien’s works?
The Tolkien Estate has a duty to protect the integrity of Tolkien’s original writings and artworks and takes copyright very seriously. This means that you cannot copy any part of Tolkien’s writings or images, nor can you create materials which refer to the characters, stories, places, events or other elements contained in any of Tolkien’s works.
(Emphasis mine)
The FAQ is vague and means several things (including names written in Elvish, by the looks of it) are now illegal (I think? Andaccording to this, anyways), most notably TOS.
I have no real say in this, not knowing Tolkien's works real well, so I'll stay out of the conversation from here on out.
Disclaimer: I am not a laywer. I am basing what I've written from what I know and have interpreted. Please do not take my word as legal advice.
-kA
(Edit: tagged as Serious Buisness)
Which I think at least in US law means a fic freely accessible on a place like AO3 would still be protected by fair use for the purposes of parody. But IANAL. This FAQ just reads like a standard “well of course you can’t publish your own version of LotR to make money” thing which you would sorta expect from big copyright holders like The Mouse Corporation — we know they’re very litigious and yet that hasn’t quarantined the MCU from missions.
To be honest, I’m not sure why people would expect the Tolkien estate to say ‘sure you can publish stuff set in our sandbox’? That statement is to deter people from publishing books for sale using stuff from M-e, not fanfic writers on AO3.
(Sorry if that sounds patronising. I don’t mean to make it sound like that, I just think this is a bit mountain out of molehill-ing the situation. Unless Tolkien Estate is rolling out C&Ds to everyone who’s ever written Gimli/Legolas smut or something, we really shouldn’t worry too much about it.)
I apologize for making this seem like a mountain if it is truly a molehill. I did particapate (a little) in the Discord dicussion and carried my interpretation over to the Board. So I apologize, again, for that.
Again, my words on the subject of Tolkien materials should be taken with a grain of salt since I haven't read LOTR and barely remember The Hobbit.
-kA
(Also not meaning to sound mad or belittling, sorry if it comes off as such.)
I would probably reserve judgement about this FAQ until they start sending C&Ds to Stephen Colbert for nerding out on his show, or, again, Gimli/Legolas smut writers on AO3. This is a matter for OTW to handle right now and we’ll see where they get with it.
I'm sorta looking forward to seeing what Stephen Colbert has to say about it. Also OTW's lawyers, if it turns out the Not-Actually-Tolkien-Anymore Estate really think they can up and outlaw not-for-profit fanworks after literal decades of fans doing as we've pleased.
I also don't think that's the case, either. It seems to me they're more concerned about people using the "Tolkien brand" (and I want you to know even thinking those words makes me want to vomit a little) for commercial gain. But even there, they have a hell of an uphill battle ahead of them to chase away all the Tolkien-inspired websites and clubs and such. It feels like trying to shut the barn door after the horse has escaped, run cross-country, and settled into its new life as a circus performer.
Also. Lemme just. Here:
Do not laugh! But once upon a time (my crest has long since fallen) I had a mind to make a body of more or less connected legend, ranging from the large and cosmogonic to the level of romantic fairy-story... The cycles should be linked to a majestic whole, and yet leave scope for other minds and hands, wielding paint and music and drama. Absurd.
— J. R. R. Tolkien, qtd. in Humphrey Carpenter, J.R.R. Tolkien: A Biography (London: Allen and Unwin, 1977), 89-90.
The dream wasn't absurd, Professor. It came true. And seeing as it's the legacy you wanted, I say it's the legacy you should have, Gimli/Legolas smut and all.
But if—IF—the Not-Actually-Tolkien Estate are coming after all fanworks, that's outrageous and disgusting, and I will express my displeasure by refusing to spend money on anything they're trying to sell. That's right, you heard me. No Rings of Power, no War of the Rohirrim, none of it. I don't need it. I have the actual works of the actual J.R.R. Tolkien and about fifty years' worth of tacitly or expressly authorized fanworks created out of love, not greed. Screw 'em.
~Neshomeh
That's solidly under the New Line license, which was sold completely by Txlkxxn. The Estate doesn't make a penny of it.
It is a /weird scenario/ when Peter Jackson's crew are the good guys in a Fandom dispute.
hS
Doujinshi are overlooked under Japanese copyright law because they don’t compete in the same market as the original, and they don’t infringe on the profits of the original.
Also, it’s highly unlikely some amateur Japanese fanartist will ping the radar of a big estate in a different country. Not to mention the difficulty the estate will have in proving the artist is copying Tolkien’s images or material especially when most doujins have distinct art styles from the original, and the writing is likely to be in a different language.
How about one of us directly email the estate and ask what they mean by "publish"?
The OTW keeps lawyers on retainer for this exact reason.