One Does Not Simply Create Fan Projects Without Interference From the Tolkien Estate

Artists are hurting from a legal attempt to squash out all fan-created works.

When a solo hobbyist developer built an app for personal use inspired by The Lord of the Rings, he was soon forced to take his app down at the risk of going toe-to-toe in a legal battle with a colossal corporation.

This is just one of the many ramifications of the recently revised rules in an FAQ posted on the Tolkien Estate’s official website. This directive is meant to dissuade and stamp out all instances of incorporating the wonderful stories of Middle-earth into fan projects, stripping away fans’ creative freedom to build within that universe.

“While the Tolkien Estate encourages interest in J.R.R. Tolkien’s works, the name TOLKIEN is a registered trademark and may not be used for the promotion of an event or festival without permission,” reads a clause in the FAQ. A separate answer adds that, “This policy extends not only to commercial activities but also those which are charitable or not-for-profit.”

In plainer terms, regardless of whether your event is catered to billionaires or designed to raise money for humanitarian causes, the second you say, “All that is gold does not glitter,” you’re in direct violation of what the Tolkien Estate considers fair use. The same principle applies to fanfiction, fanzines, clubs, artwork, music, and just about everything else any creative Tolkien fan could come up with. When you consider the famously anti-industrialist sentiments of Tolkien himself — not to mention his self-professed leanings toward anarchy in a letter to his son in 1943 — it all seems a bit ironic. That’s because it is.

It’s worth noting these rules have been in effect for several years. What is new, however, is how publicly and passive-aggressively they have been communicated since their revision in early 2022. For example, you’re allowed to use Tolkienian languages like Middle-earth’s Sindarin for “your own private interest and amusement,” but including Elvish script in art? That’s a no-go. Hell, you can’t even name your own back garden after your favorite place in Middle-earth anymore, unless you adjust your signage to read “The Shyre” — or so it would seem.

One Trademark to Rule Them All

While the Tolkien Estate is a known entity with serious firepower, even the largest institutions are incapable of transcending the law. Regardless of how aggressive the Estate’s guidelines are, they’re still just that: guidelines. When it comes to fair use, which is absent from the entire FAQ, all of these instances fall in the domain of regular copyright law.

“I could point to some assertions they make in the FAQs that are really pushing the envelope,” says Chris Sprigman, Murray and Kathleen Bring Professor of Law at New York University. “So for example, trademarks. They talk about what can be named after Tolkien. They say that it’s impossible to name a building, park, garden, etc after Tolkien. And they say the name Tolkien is a registered trademark that can’t be used without permission. That’s actually a pretty aggressive claim.”

Naming a public place after someone only violates copyright law if it generates confusion as per who or what said place is sponsored by or otherwise affiliated with. Unless the building, park, or garden appears to be representative of the Tolkien Estate, you can name it whatever you want. That’s why we have so many places already named after famous people — under U.S. trademark law, it’s not illegal.

Still, the overt aggression implied by these rules has given many creators with affection for Tolkien’s works reasonable pause. To gauge how a variety of artists feel about this new iteration of copyright control, Fanbyte spoke with best-selling author Greg Buchanan, screenwriter IR Bell-Webb, and app developer Matt Beckett. Among other things, they shared their thoughts on how moves like this can negatively affect stories beloved by millions worldwide.

All of these people have been influenced by Tolkien in professional and personal ways. Buchanan’s interest in The Silmarillion profoundly influenced his career as a writer, motivating him to incorporate a similar style of sprawling mythology throughout his own writing in works such as Dark Souls: The Roleplaying Game. Beckett developed an app called Walk to Mordor, which was initially intended for personal use. It tracks the distance you cover until you complete the entire journey Frodo and Sam undertook to reach Mount Doom from The Shire. Bell-Webb wrote a novel-sized fanfic when they were just 12 years old, creating an elven knight protagonist who ultimately gave their life to protect Arwen. People who feel a genuine connection to Tolkien’s work rarely want to rip it off — they merely want to express themselves through it.

Without the fan projects the institution is attempting to vilify and legislate against, Middle-earth would be notably worse for wear. Crucially, and somewhat ironically, fan-driven resources like The Lord of the Rings wiki, Archive of Our Own, and numerous other websites are significantly more responsible for accessible curation of Tolkien’s work than any initiatives spearheaded by the Estate. That’s not to mention fan creations beyond the written medium — some fan films, like The Hunt for Gollum, have even garnered warmer critical responses than the polarizing Hobbit trilogy.

So why is the Tolkien Estate so hellbent on ensuring this is no longer possible, given that the degree to which its rules are enforceable is nebulous at best?

“I had to take my app down because, what was the alternative? Attempt to argue and fight with lawyers backed by a billion-dollar media empire? That’s a no-win situation,” Beckett says. “I don’t have the time, resources, or expertise for that over a hobby project regardless of the enforceability of it. This is a symptom of capitalism, in my opinion. Those with the most resources win.”

Sprigman offers legal expertise on the matter. “With respect to the app, the question is whether consumers might perceive that the app is somehow sponsored by, or otherwise affiliated with, the Tolkien Estate,” he explains. “I don’t know what consumers would think, really. But the Tolkien Estate wins a trademark claim against the app only if there is that sort of consumer confusion.”

In today’s legal landscape, the standard mechanisms for enforcing trademark claims are cease and desist letters — essentially threats — or larger takedown notices aimed at entire platforms. “The platforms have much less incentive than individual creators to push back on fair use, though some platforms will restore the content if the creator files what’s known as a counter notice,” says Rebecca Tushnet, Frank Stanton Professor of First Amendment Law at Harvard. “If the fan creator continues to push back, a lawsuit is possible, though that would be quite rare.”

It’s difficult to say what the charges for an infringed work, or the cost of actual damages and profits from infringement, can amount to. Tushnet says a court can impose penalties costing anywhere from $200 to $150,000 per infringed work — a margin wide enough to keep creators from taking their chances.

While the assertions that refer to fair use in the FAQ are legally ambiguous — Sprigman calls their enforceability “a mix,” while Tushnet states their validity “depends” — there are other instances in which the Tolkien Estate has no leg to stand on. This is particularly of note when it comes to the legality of quoting directly from the author’s work.

“That strikes me as kind of misleading,” says Sprigman. “If I’m writing an academic paper and I’m analyzing The Lord of the Rings, I can quote reasonable portions of the book because I’m analyzing it. It’s not a commercial use; it’s a transformative and academic use. There’s a pretty wide latitude for that sort of quotation. So here, as in other places in the FAQs, the Tolkien Estate is taking a position that is at odds with the actual law, at least as it exists in the U.S.”

All of this serves to further obfuscate the boundaries of what is and isn’t permissible under the tenet of fair use. Tushnet mentions a similar case related to Star Trek, in which amateur filmmakers managed to crowdfund a fair amount of money to recruit some of the series’ actors for a fan movie called Axanar.

“The Star Trek ‘rules’ — which, again, do not have the force of law and cannot override fair use — came out of a lawsuit against Axanar,” she explains. “But they were not in place when the lawsuit began nor would they have been dispositive if they had been.”

Axanar, like the various fan projects and resources founded upon Tolkien’s legendarium, speaks to an extremely important part of this conversation that the Tolkien Estate appears to be either ignorant toward or naively dismissive of. A gradual lack of fan projects that maintain Middle-earth’s popularity could eventually lead to a loss in profits, with interest in the fantasy universe waning as a result of perceived stagnation.

There and Back Again

While Beckett believes enough people speaking out about the issue could incite change, he’s not hopeful — especially because the correlation would be difficult to prove. Bell-Webb, meanwhile, believes actively policing these rules is impossible. As they put it, what could the Tolkien Estate have done about the tragic romance they wrote when they were 12?

“Sue a child?” they ask. “For the Extremely Secret Word Notepad files they kept hidden in an obscure folder on the family desktop? Issuing a ban on fanfiction and other fan works and expecting people to then stop generating fan works is like issuing a ban on weather forecasting and then expecting it to not rain.”

Ultimately, everyday fans of Tolkien likely won’t be thrown in jail for posting fanfiction and paintings. But it’s difficult to view stories you love in the same way when their official curator is openly hostile. With varying opinions on how this might be enforced, what effect could it have on up-and-coming young artists?

“I mean, fans are probably just going to keep doing what they always do — write, paint, and otherwise celebrate the thing they love,” Bell-Webb says. “They’re just going to do it on invite-only Discord servers and behind locked [Archive of Our Own] accounts, which is a shame, because it means newer and younger fans are going to find it harder to access the fandom.”

People are still going to create fanfiction about Tolkien whether legally permitted or not,” Buchanan says. “The Eye of Sauron isn’t capable of reaching into people’s bedrooms and seeing their manuscripts in action unless those creators decide to publish them online, which is a very different thing. You can’t stop people thinking the thoughts they want to think.”

That’s an important point, because even if the monolithic Tolkien Estate strives to police work created by fans, said work can never truly cease to exist. There are millions of people who express their creativity through the songs and stories of Middle-earth, many of whom aren’t even aware of the FAQ’s existence. While Tushnet explains the threat alone is often enough to scare people away from the property, imagination is a difficult, if not impossible, beast to tame. As the revered Terry Prachett, a near-contemporary of Tolkien, once wrote: “Imagination, not intelligence, made us human.”

“I don’t know that it inhibits creativity itself,” Beckett says. “People will always find ways to be creative, but they like to be creative and pay homage to things that inspire them. Banning this outright will just force people to move onto other things and ultimately decrease the personal value of the Tolkien universe. It has done that for me.

“Shutting down my app was a huge disappointment for me,” he says. “I had put a lot of work into it with no expectations — I built it for myself.”

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He was pleasantly surprised by the thousands of people who discovered and used it. Some would email him to share how the app inspired them to get off the couch and take a walk. That joy, however, was lost after he had to remove the app and undo all the hard work he had put into it. Now, past users ask why they can no longer find it. Some wonder how they can finish the walk they started with a friend or relative who has since passed away. Being unable to help them was “crushing” for Beckett.

“I consider [rules] to be immoral for a work of fiction so old and past the life of the author,” he says. “But I understand in our society that morality, legality, and what actually happens are really entirely separate concepts.”

There’s no concrete solution for responding to rules that seem more detrimental to Tolkien’s legacy than protective of it. Whether people continue to experiment with Middle-earth in secret or ditch their fan projects out of fear is impossible to predict. And yet, the people producing this kind of art are among Tolkien’s most dedicated fans. As long as the Tolkien Estate bans them from acting on their passion, the demographic of writers, artists, developers, and other creative people inspired by The Professor will shrink until it disappears not with a bang, but a whimper.