In two separate cases, a California district court has found that:
- the Amazon TV series The Rings of Power did not infringe the alleged copyright in the unauthorised derivative fan-fiction work of writer Demetrious Polychron (in his unlicensed "sequel" - The Fellowship of the King); and
- the same book infringed copyright in J.R.R. Tolkien's original trilogy The Lord of the Rings.
In the first case, the court also awarded costs to the Amazon and Tolkien parties, and in the second case, the court granted the Tolkien parties a permanent injunction.
In 2022, Mr Polychron, a Tolkien fan based in California, published his fan-fiction work, The Fellowship of the King, which he saw as a “loving homage” to Tolkien. Mr Polychron’s work included various main characters and detailed settings from The Lord of the Rings, copied certain passages verbatim and duplicated certain plot and structural elements.
He intended it to be the first in a series of seven books. In 2017, Mr Polychron had written a letter to Simon Tolkien, the grandson of J.R.R. Tolkien, describing the series as a “pitch-perfect sequel” to The Lord of the Rings. In 2019, Mr Polychron contacted the Tolkien estate to seek a licence, but that was refused on the basis of the estate’s long-standing policy of rejecting requests for licences for sequels to The Lord of the Rings. Around the same time, he wrote a follow-up letter to Simon Tolkien, suggesting that his book could make the Tolkien estate a “ridiculous amount of money”.
In September 2022, Amazon Studios released a spin-off TV prequel to The Lord of the Rings called The Rings of Power, which had been authorised by the Tolkien estate.
Mr Polychron considered that the prequel infringed copyright in his book. In April 2023, he issued a claim against: (a) certain Amazon companies and certain Amazon personnel, including Jeff Bezos in his personal capacity; and (b) Simon Tolkien, the Tolkien estate and the Tolkien trust. He sued for $250 million in compensation.
The court dismissed the claim, finding that it was in fact Mr Polychron who had infringed the copyright in Amazon’s prequel, and that Mr Polychron’s book was an “unauthorized derivative work that is not entitled to copyright protection”. In the alternative, if that were not the case, the court considered it implausible for Mr Polychron to maintain that the Amazon prequel infringed his novel directly. The court also rejected his argument that the Tolkien parties engaged in unfair competition by sending takedown notices to online booksellers.
The Amazon and Tolkien parties were awarded legal costs amounting to $134,000 (around £106,000) on the basis that his claim was “unreasonable” and “frivolous”, given that his work was entirely based on characters in The Lord of the Rings.
The Tolkien trust and the Tolkien estate then issued a separate claim, applying for summary judgment against Mr Polychron for “wilful and blatant” infringement of copyright in The Lord of the Rings for commercial gain.
The court noted that there was direct evidence of copying of protected elements. In Mr Polychron’s 2017 letter to Simon Tolkien, he admitted not only writing a “pitch-perfect sequel” to The Lord of the Rings, but that in writing the story his intention was “to stick as close to canon” as he could. On careful analysis by the court, the “canon” was interpreted as being The Lord of the Rings, and that was taken to be an admission of direct copying.
The court then conducted an analysis of whether the Tolkien parties were entitled to a permanent injunction. Given that Mr Polychron had infringed the copyright in The Lord of the Rings and was likely to do it again, the court considered a permanent injunction necessary.
Accordingly, the court granted a permanent injunction preventing Mr Polychron from:
- copying, distributing, selling, performing, displaying or otherwise exploiting his book, his planned sequels or any derivatives of those; and
- copying, distributing, selling, performing, displaying or preparing any derivative works based on any other copyright work by J.R.R Tolkien, including The Lord of the Rings.
Mr Polychron was also ordered to destroy all physical and electronic copies of his book and to file a declaration that he had done so. The Tolkien parties applied for but were not granted a costs order in the second case.
The UK solicitor for the Tolkien estate, Steven Maier, commented that there was “a serious infringement of The Lord of the Rings copyright, undertaken on a commercial basis”, adding that “the estate hopes that the award of a permanent injunction and attorneys’ fees will be sufficient to dissuade others who may have similar intentions”.
Copyright in The Lord of the Rings itself will continue to subsist in the UK until the end of 2043 (subject to any changes in UK copyright law), and more recent copyrights in the prequel and other Tolkien-derived works will continue for longer still. All the works will also enjoy parallel protection under foreign copyright laws around the world.
So the Tolkien estate, the Embracer Group (the gaming company that, when buying Middle-earth Enterprises in 2022, appears to have acquired rights in Lord of the Rings-derived films, games, merchandise, theme parks and live productions) and their respective licensees will continue to be entitled to exercise control over Tolkien and Tolkien-derived works for a considerable time. Besides, the Amazon companies have invested heavily in a prequel series that is set to run for several seasons, and the existing Warner Bros film franchise directed by Peter Jackson remains popular and is due to be extended (with a new animation slated for release in2024), and those producers will have various additional rights to protect.
Accordingly, anyone wishing to make use of characters or other elements of the Tolkien world will require a valid lawful basis for such usage. For many years yet, that is generally likely to require an express licence from the relevant rights-holders – as Mr Polychron learned the hard way.
More information on the Tolkien estate’s copyright guidelines can be found here.