I was recently listening to Blind Guardian’s Nightfall in Middle-earth, which reminded that I wanted to write down some musings about the legality of derivative works (this is not legal advice!).
Derivative works in this context are fan-art, fan-fiction, and (particularly important in the Tolkien context) fan-made music. There’s a ton of these online, from Tolkien fan-art on Tumblr (and even sold on Etsy), to Tolkien fan-fictions on AO3, to Tolkien music on Youtube (Clamavi de Profundis is amazing).
Now, the Tolkien estate hates derivative works, stating on their website:
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.
(https://www.tolkienestate.com/frequently-asked-questions-and-links/)
This strikes me as legally meaningless. What derivative works are legal to publish is determined by copyright law.
And copyright law in the EU is pretty open to derivative works. (The UK’s law about this is based on EU law, but UK courts don’t have to follow CJEU interpretations anymore.)
Article 5(3)(k) of Directive 2001/29 (EU) provides that Member States may provide for exceptions or limitations [to copyright] in the case of use for the purpose of caricature, parody or pastiche. Importantly, Article 17(7) of Directive 2019/790 (EU) subsequently provided that Member States shall ensure that users in each Member State are able to rely on any of the following existing exceptions or limitations when uploading and making available content generated by users on online content-sharing services: (a) quotation, criticism, review; (b) use for the purpose of caricature, parody or pastiche. That is, the facultative exception became mandatory: EU member states must provide a pastiche exception to copyright protections now.
In introducing precisely this exception into German domestic law, the German parliament noted (in preparatory materials) that what is meant by pastiche specifically includes fan-fiction and fan-art, as well as sampling and memes (BT-Drs. 19/27426, p. 91). But of course, the final arbiter of EU law in the EU is the CJEU.
And, recently, the CJEU clarified what pastiche means:
1. Article 5(3)(k) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the exception for ‘pastiche’, within the meaning of that provision, does not have a catch-all nature (Auffangtatbestand) but covers creations which evoke one or more existing works, while being noticeably different from them, and which use, including by means of sampling, some of those works’ characteristic elements protected by copyright, in order to engage with those works in an artistic or creative dialogue that is recognisable as such and that can take different forms, in particular the form of an overt stylistic imitation of those works, of a tribute to them or of humorous or critical engagement with them.
2. Article 5(3)(k) of Directive 2001/29 must be interpreted as meaning that, in order for use to be ‘for the purpose’ of pastiche, within the meaning of that provision, it is sufficient that the ‘pastiche’ nature be recognisable for a person who is familiar with the existing work from which the elements have been borrowed.
(https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:62023CJ0590)
Basically, the CJEU ok-ed sampling as being capable of falling under the pastiche exception to EU copyright protection.
And the way the judgment is written, even though it never refers to fan-fiction or fan-art or fan-music (since that’s not the subject of the litigation in question), I’d say that it’s very much applicable to those. The court specifically states that, to be a pastiche, the derivative work must “use […] some of those works’ characteristic elements protected by copyright”, and that the imitation doesn’t need to engage with the original work on a “humorous or critical” level, but rather that it can simply be a “tribute” to the original work. And note that there’s no requirement for the derivative work not to have any commercial purpose! That doesn’t mean that all fan-fiction etc will fall under the pastiche exception, but rather, that it’s capable in principle of meeting the requirements.
The US, of course, has its fair use doctrine. It’s not been properly tested where fan-fiction is concerned, and it’s generally a bit of a mess. Of course, maybe don’t try to sue the Tolkien estate for copyright infringement when you’re selling LOTR fan-fiction (https://www.bbc.com/news/entertainment-arts-67753073). Note that, using very different language from the Tolkien estate itself, even the Tolkien estate’s UK lawyer said about this case:
This is an important success for the Tolkien Estate, which will not permit unauthorised authors and publishers to monetise JRR Tolkien’s much-loved works in this way.
This case involved a serious infringement of The Lord of the Rings copyright, undertaken on a commercial basis, and the estate hopes that the award of a permanent injunction and attorneys’ fees will be sufficient to dissuade others who may have similar intentions.
(https://www.bbc.com/news/entertainment-arts-67753073)
Taking all of this together, I can’t help but wonder why the Tolkien estate has such a black-and-white statement trying to forbid all derivative works for any purpose and in any form on its website, while even their lawyer stresses that the estate will not allow monetisation of Tolkien’s works by other writers.
It also feels odd that the Tolkien estate is so strict on their website, while Tolkien musicians on Youtube and the like don’t seem to be getting copyright strikes or anything, and while the law seems significantly less black-and-white.
And in my opinion, engaging with an original work via fan-fiction and fan-music is just as valuable and often just as scholarly as engaging with it via critical essays. Not all of it is scholarly, of course—there is a great deal of smut—but there is a great deal of Tolkien fan-work online that engages with the original work with a lot of knowledge and respect.
Anyway, some musings (that, again, do not constitute legal advice). What do you think about the Tolkien estate’s stance? Do you know of other legal cases that they pursued?