In J.R.R. Tolkien’s world, Hobbits are quiet, unassuming people who are wary of the “big folks” and generally want to be left alone. So, it would have been a wise move not to file a copyright infringement suit against the Tolkien Estate Limited and the Tolkien Trust. Especially when the basis for your suit is an unauthorized sequel to “The Lord of the Rings.”
Yet, that is exactly what happened in a case in the Central District of California, in the case of Polychron v. Bezos. 1 A writer by the name of Demetrious Polycron wrote a sequel to “The Lord of The Rings” titled “The Fellowship of the King.” He registered it with the U.S. Copyright Office on November 21, 2017, and the same day he wrote to the grandson of J.R.R. Tolkien touting his book. 2 There was no response. 3
In November of 2019, lawyers for Mr. Polychron wrote to the Tolkien Trust requesting a license. His request was denied citing a long-standing policy against licensing sequels. 4 Undeterred, he tracked down Tolkien’s grandson in the U.S. and hand delivered a copy of the manuscript to the residence. 5
Now he alleges in his lawsuit that the Amazon streaming show “Rings of Power” set in the years before “The Lord of the Rings” infringes his copyright in “The “Fellowship of the King.” 6
The problem is that Plaintiff’s work is an unauthorized derivative work. The Ninth Circuit has ruled that a derivative work is one which “would have been considered an infringing work if the material which it derived from an existing work had been taken without the consent of the copyright proprietor of such preexisting work”. 7 Precisely what has occurred here.
Two cases weigh heavily against the Plaintiff here. The first is Anderson v. Stallone 8 regarding an unauthorized treatment for a sequel to “Rocky III” and Salinger v. Colting 9 regarding an unauthorized sequel to “Catcher in the Rye.” Both were found that due to their status as unauthorized derivative works, they had no standing to claim either copyright (in the Salinger case) or standing to sue for infringement (in the Stallone case).
“Here, Plaintiff has admitted that the characters were taken directly from ‘The Lord of the Rings’…he has also admitted that his series is intended to be a sequel to ‘The Lord of the Rings,’ so every plot point flows from the ending of ‘The Lord of The Rings’ series.” 10
“Accordingly, Plaintiff’s work is an unauthorized derivative work that is not entitled to copyright protection…Plaintiff’s work is intended to be a literal continuation of a copyrighted work, but was not authorized to use the Tolkien intellectual property, and Plaintiff has sued the original creators, section 106(2) of the Copyright Act forecloses such a claim.” 11
But what if Plaintiff’s work contained new and original expression?
According to the Court, this fails as well, since the works are not substantially similar to each other. The problem is that you have to subtract out all the elements that appear in “The Lord of the Rings.”
Thus “Plaintiff’s references to characters created by J.R.R. Tolkien such as Elanor, Marigold, Durin Galadriel, Elrond and Celebrimbor are unprotectable elements. The other general similarities such as the types of species who inhabit Middle Earth, magical rings, and the fight against evil are also either attributable to Tolkien or flow from the world he created.” 12
“After filtering out these unprotectable elements, Plaintiff does not plausibly plead any similarities between his work and “Rings of Power.” 13
Thus, this case underscores the ever-present danger of “fan fiction.” If the copyright holder allows fan fiction to proliferate, the possibility of a suit alleging infringement of the fan fiction work can arise.
But for now, case dismissed. And presumably sent to Mount Doom to perish in the flames like the “one ring to rule them all.”
- Polychron v. Bezos Case 2:23-cv-02831-SVW-E. Central District of California 2023 Order Granting Defendant’s Motion to Dismiss ↩
- Id.at 2 ↩
- Id. ↩
- Id. at 7 ↩
- Id. ↩
- Id. at 9 ↩
- Mirgae Edtions, inc. v, Albequerque ART Co. 856 F.2d 1341 (9th Cir. 1988) ↩
- 1989 WL 206431 C.D. Cal 1989 ↩
- 641 F.Supp 2d 250 (SDNY 2009) ↩
- Polychron at 11 ↩
- Polychron at 12 ↩
- Polychron at 13 ↩
- Id. ↩