A Sudden Outcry: The Tolkien Estate and Fanworks by SWG Newsletter Staff

A Sudden Outcry: The Tolkien Estate and Fanworks

When the Tolkien Estate recently presented their newly revamped website, it did not take fans long to see past the new artwork and other features to find that the Tolkien Estate has a policy on fanworks. The past several days have seen a whirl of discussion about what it all means that can be distilled down to a single burning question:

Did the Tolkien Estate just ban fanworks?

In short, no, the Tolkien Estate did not just ban fanworks. The fanworks you have posted, are in the middle of creating, or are even thinking about creating are not affected by what the Estate says on their website.

The longer answer depends on if you're interested in the just or the ban part of that question (or maybe both!). While the following is not legal advice, we hope it will lessen the worry that the existence of fanworks is in jeopardy.  As always, bear in mind that laws vary from country to country. If you have specific concerns, the Organization for Transformative Works' legal committee, while unable to give legal advice, can answer questions you might have.

The History of the Tolkien Estate and Fanworks

For the majority of its existence, the Tolkien Estate website has addressed fanworks in its FAQ. The Tolkien Estate opened its website in 2006, and for its first year, it was little more than a landing page with information on the (then) new book The Children of Húrin. Around April 2007, the site expanded considerably, and fanworks were addressed for the first time:

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.

This initial attempt focused on fanfiction and "privately produced collectors' items for sale." It was, in other words, fairly expansive. It can easily be argued that those "privately produced collectors' items" would include the Tolkien-inspired artwork and crafts that many fans have assumed safe to sell for years now.

Some might point out that the terms do sanction stories written for "private enjoyment." The word private is essential here. Fanfiction is generally a collective endeavor; the entire point is to share stories so that others can read, comment on, and discuss them. So the Tolkien Estate is saying that you are allowed to scribble Legomances in your private notebooks—but barring a truly Orwellian level of surveillance and control, you should assume that right anyway.

It's also important to notice the tiny details about the language and formatting of this initial effort. It was clearly not penned with legal (or even much editorial) guidance.

In March 2015, the Tolkien Estate overhauled their website for the first time, and their FAQ received an update as well, bringing us a second iteration of the above text:

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.

The Tolkien Estate’s mission is to defend and protect the integrity of J.R.R. Tolkien’s works. As literary executor, it has always been Christopher Tolkien's goal to publish the writings of his father—both finished and unfinished—in the most faithful and scrupulous way, without adaptation or embellishment.

Two interesting things happen here.

First, the "ban" on fanfiction expands to include personal writings and explicitly adds online writing. The third paragraph forbids not just the commercialization but the distribution of "homemade literary works," which could be interpreted easily to include every fanfiction archive that hosts Tolkien-based fanfic.

Secondly, the "arts and crafts" clause from the first FAQ is gone. This could be read as sanctioning, at least implicitly, the production of fanart and crafts for sale.

The 2015 site update also included a new FAQ item:

May I use names (of places and characters) invented by J.R.R. Tolkien?

On this issue, please see our "Permissions and Requests" section.

What is interesting is that the "Permissions and Requests" page doesn't actually address this question at any point. However, given the Estate's position elsewhere on this page, it is safe to say that whatever they had in mind when they directed fans there (and then apparently forgot to write an answer) was likely not permissive. We at least know that, by 2015, this issue was on their mind.

Notice also the shift in language and style. While we don't know who wrote this iteration of the FAQ, it sounds more "lawyerly." At the least, it appears to have been given more consideration.

This version of the FAQ was in place until at least mid-February. So while the Estate's stance on fanworks has recently come under scrutiny by fans, we can see that there has been an extremely restrictive policy on the site for seven years now, and an anti-fanworks policy of some sort for fifteen years.

This brings us to the current FAQ. Also accompanying a site redesign, this change first came to the attention of fans in the first half of March. The part of the FAQ specific to fanfiction states:

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.

The language about "protect[ing] the integrity" of Tolkien's works survives from the very first statement on fanworks from 2007. The bit about not using Tolkien's "characters, stories, places, events, [and] other elements" is a rewording of the version of the FAQ that was in place from 2015 until a month ago, which forbids all fanfiction.

As noted above, the previous FAQ claims to address names and languages, but that text doesn't actually appear anywhere on the site. The more recent FAQ does address it:

Tolkien’s invented languages and scripts are protected by copyright.  You may use them for your own private interest and amusement, but you may not reproduce them in any form of publication or in connection with any group activity, commercial or otherwise.

The "group activity, commercial or otherwise" is along the lines of the fanfiction policy, which also attempts to impose heavy restrictions on the noncommercial use of materials. See the next section for more on whether such restrictions are even legally viable. (Spoiler alert: They are not.)

The current FAQ expands beyond previous documents and now specifically addresses other fan activities:

• Fanzines are allowed but cannot use copyrighted materials and cannot use the name "Tolkien" in the title.
• Artwork, crafts, merchandise, and other items cannot be manufactured or sold if they include Tolkien's text or artwork, or use the name "Tolkien," his monogram, or his signature. Interestingly, the more expansive ban on "privately produced collectors’ items for sale" found in the original FAQ is still absent, suggesting that fanart and crafts are still acceptable to sell. (And again, this is a good point to remind readers that we are not offering legal advice or making any legal claims!)
• Music cannot use Tolkien's texts, his name, or the titles of any of his books. But music inspired by the legendarium seems to be acceptable to the Estate, as long as it avoids those specific things.
• The rules for fanfiction apply to plays and other dramatic productions.
• Quotes from the books cannot be used for commercial, nonprofit, or charitable activities.¹
• Public readings require the permission of HarperCollins publishers.

There has been a lot of attention paid to these new FAQs in recent days. Here are our takeaways:

• If the FAQ addressed it before the site revamp, the wording has changed but the substance of the policy has not. For instance, the word distribution has occurred in every FAQ since the original in 2007, which can be construed to cover fanworks posted online.
• Existing policies on fanfiction are now being extended to other types of fanworks that were not explicitly addressed before, such as music and fanzines.
• The FAQ now includes policies that existed before but were not readily available on the Estate's website. For example, HarperCollins has always required permission to conduct public readings; this is now stated in the Estate's FAQ.

The Tolkien Estate is anti-fanwork and always has been. For all that the "other minds and hands" quote gets tossed about by fans eager to believe that Tolkien would have condoned their activities, Tolkien himself was anti-fanwork when it came to his books,² unless it was something that he liked. This has neither changed nor prevented Tolkien fanworks from being made in the almost seven decades since The Lord of the Rings was published.

Copyright and Infringement

Another component essential to answering the question, "Did the Tolkien Estate just ban fanworks?" concerns copyright. Copyright is an enormously complex legal concept, made even more so in an international context, where the Estate, various rights holders, and fans may be located in different countries, each with its own copyright laws. Here are some points that we felt were particularly salient as fans consider the new FAQs and what they mean for fandom and fanworks. Again, remember that we are not providing legal advice but are attempting to distill down legal concepts that people devote entire careers to. If you're interested in learning more about fanworks and copyright, see the Recommended Reading section at the end of this article.

1. The Tolkien Estate doesn't get to supersede the law. No matter how badly the Estate wants to "protect the integrity of Tolkien’s original writings and artworks" (and thinks that stopping Frodo/Sam stories and Elves-in-Space AUs will accomplish that), if your fanworks do not violate the law, then you have the right to continue making them, no matter what the Estate wants.
2. Copyright law varies by country. A piece that gets frequently overlooked in discussions of copyright in fandom is that copyright is not governed by international law. Each country has its own copyright laws. For example, fair use—a term frequently deployed in discussions of copyright and fanworks—is a doctrine of U.S. law, so if a Korean fan writes fanfiction that the Tolkien Estate (British) deems infringing, fair use will never come into play. (Other countries may have their own concept of fair use, and it is even sometimes called such, but most discussions treat U.S. fair use as the standard when this is often not the case.)
   
   So which country's laws apply? This answer isn't easy either, and a concept called choice of law comes into play here, where the first task of a rights holder claiming infringement is to determine which country's—or countries'—laws apply.³
3. Takedown notices are not lawsuits or law. DMCA takedown notices—which are based on a 1998 U.S. law, the Digital Millennium Copyright Act—are a notification by a rights holder that they believe your content infringes their copyright. A takedown notice is not a legal requirement. It is not a lawsuit. It is not a fine. They are often served by more powerful rights holders to less powerful fan creators on the assumption that the fan will capitulate out of fear. You are allowed to file a counter notice, claiming the content does not infringe. The Organization for Transformative Works' legal team can provide more information if you are served a takedown notice, and it is wise to consult them or someone else familiar with copyright law before proceeding.
4. The Tolkien Estate is not the only rights holder. Other entities, like HarperCollins or the Saul Zaentz Company, also hold rights to various parts of Tolkien's texts and have acted in the past against activity they believe infringes their copyright.

While experts tend to agree that fanfiction would likely not violate copyright, it has not been determined to be legal either. It occupies a legal gray area, which some legal scholars suggest benefits rights holders just as much as it does fans, as a legal decision on fanfiction may well offer fans more protections than they have now. Regardless—and no matter how complicated copyright is, particularly in the international context of fandom—the Tolkien Estate doesn't get to invent laws that fans have to follow. It is very likely that their constraints against fanworks would not withstand a legal challenge.

So why the change to the FAQ now?

As shown above, this is the second time the Tolkien Estate has changed their website design—and the second time they changed their FAQ. In both instances, the change in site design and FAQ happened at the same time, suggesting that the reason for the change now is probably nothing more than an overhaul of the website as a whole and wishing documents to be up-to-date so that, if the new site receives increased attention (which it has), then information on the site is accurate.

(The Silmarillion Writers' Guild rebuilt our website last year and did the exact same thing, rewriting and revising many of our site documents.)

The deeper reason for the changes to the website is likely the forthcoming Amazon series. New media adaptations of Tolkien's books always bring in new fans, including new interest in Tolkien-based fanworks. More people will be looking for information on Tolkien, and more people will potentially be creating the kinds of fanworks that the Tolkien Estate hopes to control. Additionally, the more expansive FAQ likely addresses how technology and fanworks have changed in recent years. Where text-based fanworks, like fanfiction, once predominated, it is easier than ever to make and share multimedia fanworks. Again, however, remember that your rights follow the law, not the wishes of the Tolkien Estate.

Should I be worried?

We're going to quote the Tolkien Estate (without permission!): "The short answer is most definitely NO!"

There is nothing in the new FAQ that has not previously been in the Estate's stated policy toward fanfiction and practical policy toward other fanworks.

Historically speaking, Tolkien fanfiction and other fanworks have been around since the late 1950s. The online fandom emerged in the early 2000s. Millions of fanworks have been produced in that time, and not in secret. The Tolkien Estate has opposed fanworks for much of their online history, yet here they and we are. According to Samantha S. Peaslee, writing in the Denver Journal of International Law and Policy, "If rights owners know about the fan fiction and allow it to continue, in all likelihood, the fan can show that the owner impliedly consented."⁴

Furthermore, as noted above, legal experts tend to favor the view that fanworks are not infringing, making a legal case more of a risk to anti-fanworks rights holders (like the Tolkien Estate), who would lose their ability to engage in intimidation tactics, than to fans, who would explicitly gain protections that they likely should already enjoy.

So while rights holders have definitely acted against fans in the past, there is no indication that that is what is happening here. Nor would it make sense, on the eve of a new media adaptation, to shutter the very fan communities that are likely to funnel new fans away from the series and toward the publications that the Tolkien Estate profits from and claims to wish to "defend": Tolkien's books.

What can I do to keep fanworks safe?

Under many countries' copyright laws, fanworks are likely legal because they do not compete economically with the original. This—along with the transformative (versus derivative) nature of most fanworks—is widely cited by copyright experts as a reason why fanworks would likely not be found to be infringing.

This makes it imperative that fanworks remain noncommercial. When rights holders perceive that consumer money is possibly going toward a fanwork rather than into their own pockets, the game changes.

• Do not offer fanfiction for sale or commission fanfiction. If you engage in these practices, do not mention them on archives or other fanworks-related groups.
• Scrupulously follow the policies of sites like AO3 and the SWG that forbid any mention of or linking to profit-generating activities or websites. Understand that linking to your Ko-fi or offering to take commissions puts fandom sites at risk.
• If you've done these things in the past, don't beat yourself up over it—but commit to not doing it again.

Conclusion

If fandom has an ancestral memory, it likely contains a fear of rights holders akin to a fear of cliffs or snakes or spiders: assumed threats to our very existence. Fandom veterans recall duck-and-cover tactics like disclaimers to protect themselves from rights holders and the hushed conviction that fanfiction—at least online fanfiction—was never long for the world.

The longevity of these fears partly speaks to why this latest FAQ from the Tolkien Estate doesn't give much cause for concern. As we've detailed, it does not introduce anything that was not the stated or practiced policy. Furthermore, the Estate's stipulations far overshoot what copyright experts tend to identify as legal in the creation of fanworks.

Tolkien fanworks have been around for seven decades. They number, by now, in the millions. We hope that the creators who have contributed to this vibrant community and endeavor to enrich and extend Middle-earth will remain confident in creating many millions more.

Recommended Reading

Much of the information below pertains to U.S. Copyright Law. It is important to note that copyright law varies between countries, and also depends on when a work was created (as it may fall under previous copyright law, and not contemporary copyright law). Links to the information are provided as guidance and should not be considered legal advice.

10 Copyright Cases Every Fan Fiction Writer Should Know About

Explains Fair Use and gives examples in the form of ten court cases where the legality of a derivative work came into question, including the outcomes of the cases.

How to Keep Fanfiction Legal and Avoid Trouble With Lawyers

With a focus on events which unfolded with fanfiction based on the works of Anne Rice, this article explains the basic dos and don’ts of fan works.

Fanfiction Is Older Than You Think – But Can It Survive Stricter Intellectual Property Laws?

An extensive look into the history of fanfiction, including a look at intellectual property cases. (Please be aware, some content referenced in this article may not be suitable for minors.)

Works Cited

1. It is fitting that the Tolkien Estate's website itself does not allow text to be copied and pasted and, therefore, easily quoted. Regardless, in writing this article, we figured out how to copy the entire FAQ for our notes. Fandom finds a way.
2. Tolkien wrote of a fan who proposed a sequel to The Lord of the Rings: "I do not know what the legal position is, I suppose that since one cannot claim property in inventing proper names, that there is no legal obstacle to this young ass publishing his sequel, if he could find any publisher, either respectable or disreputable, who would accept such tripe." The Letters of J.R.R. Tolkien, "292 To Joy Hill, Allen and Unwin."
3. Samantha S. Peaslee, "Is There a Place for Us: Protecting Fan Fiction in the United States and Japan," Denver Journal of International Law and Policy 43, no. 2 (2015): 205.
4. Ibid., 211.

Acknowledgments

This article was written collaboratively by Dawn Felagund, Grundy, Independence1776, Lyra, Zhie, and others.

The title of this piece comes from The Two Towers: "A sudden outcry on the east side of the knoll showed that something was wrong." It was not used with permission.