Freezing Fanfiction: The Tolkien Estate’s New FAQ
I have written fanfiction in the past. Not under my own name, of course – but it’s there, and at least one piece is positively notorious. I don’t do it anymore, because these days I prefer to write original fiction, but I am fully aware of the time-honoured roots of the area. Leaving aside that fanfiction is as old as storytelling itself (and thus pre-dates the 1710 invention of copyright), it has certainly been a feature of modern fandom for a century or more. We still have fanfiction written by James Barrie (author of Peter Pan) on the subject of Arthur Conan Doyle’s Sherlock Holmes.
I mention this because a certain development has sent some jitters through writers of Tolkien fanfiction. Basically, the Tolkien Estate has changed its online FAQ from this:
To this:
The Tolkien Estate has a duty to protect the integrity of Tolkien’s original writings and artworks and takes copyright very seriously. This means 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.
Note the change from “fanfiction is absolutely not authorized” to “you cannot create materials that refer to characters, stories, places, events, or other elements contained in any of Tolkien’s works.” The former merely refers to authorisation – the Estate does not consent to fanfiction, and any such material is written without their permission or authority. Which is fair enough. The latter, however, does not refer to authorisation. It refers to ability. “Cannot” is a powerful word.
It might only be a paper-threat, but part of me is inclined to join in the jitters. Not because I write fanfiction anymore, but because I am worried that this heralds a shift towards a more George R.R. Martin-style attitude on the part of the Estate. Martin is, of course, infamously wrong about the legal mechanics of copyright, with a tendency to confuse trademarks (which need to be defended) with copyright (which doesn’t). The problem is that the author’s views are often enough to discourage prospective fanfiction writers from playing in that particular sandpit. The Tolkien and Harry Potter fandoms have traditionally been much more welcoming for such (non-profit) activity.
Now? We are very unlikely to see the Tolkien Estate go “full Anne Rice” in its suppression measures – there is simply too much to lose and too little to gain for the Estate to go that route* and the cost in terms of both lawyer-fees and reputation would be immense. On the other hand, a Martin-style Cold War on Fanfiction might be more realistic, and I do not think that would be healthy for the Tolkien fandom. One just hopes that this new FAQ language does not mean a fundamental change in de facto Estate policy towards non-profit fan works.
(*Exactly where that would leave, for example, Blind Guardian, I am also not sure. Where does one draw the line between non-profit prose and commercial musical lyrics? Or even Nimroy’s infamous Ballad of Bilbo Baggins?).
That said, part of me does snigger slightly at the expansive nature of the FAQ wording. Not least because Tolkien himself wrote fanfiction – Kullervo, Sigurd and Gudrun, and The Fall of Arthur, never mind The Homecoming of Beorhtnoth, Beorhthelm’s Son. I wish the Estate all the best in trying to enforce copyright on those “Tolkien characters”, if they were ever so inclined. And I dare them to protect Father Christmas.
(Oh, and if I write about a dwarf named Bombur, am I stealing from Tolkien or from the Old Norse Völuspá?).
Addendum: Thinking about this a bit more…. with the passing of Christopher and Priscilla, there is probably no-one left in the Estate with the “moral authority” to seriously influence the fandom. Christopher Tolkien coming out against fanfiction might have had some effect, but not the grandchildren. So I suspect that a Martin-style effort to freeze the phenomenon would only serve to damage the Estate’s reputation at this point. Still bad for fandom, of course.
Addendum II: An interesting article over at the Silmarillion Writer’s Guild, which seeks to reassure fanfiction writers: https://www.silmarillionwritersguild.org/node/5391
A Phuulish Fellow 
On the Bombur point, and the idea that we cannot use any name, character, events etc from Tolkien’s work, what if I were to write something, like a book or a film script, about the tale of Sigurd and Gudrun? Tolkien wrote an alliterative poem on that particular tale, but it’s engaging with a Norse myth over 1000 years old.
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That’s the point – on paper the Estate is staking out a greater claim than is actually viable. Tolkien himself borrowed names and characters from other texts, so the Estate would hardly have much of a claim if someone used Kullervo or Arthur or Sigurd and Gudrun. Which is why I was poking fun at the expansive language.
That said, as I understand it, you can’t actually copyright names (though you can trademark them), so you might get away with writing about a Bilbo Baggins, so long as his only similarity is the name. The issue with Bombur is that he’s a dwarf in the Old Norse too, and his name means “fat.” So there would be multiple levels of overlap.
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As a disclaimer: intellectual property law is not my legal area.
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There’s thousands, maybe hundreds of thousands of Tolkien fanfiction pieces out there; none of it is authorized and none of it (except for the stuff in Russia) is making any profit. It’s a little late in the day to say that people can’t post the stories in a fanfiction community if no profit is being made.
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Sometimes, I joke that the Divine Comedy was the first self-insert fanfiction in history (which is only partly a joke).
I don’t understand some author’s wars against fanfictions. Fanfictions mean that a fandom is so inspiring that people cannot have enough, it should be good news for the author
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