Writing Hacks for Writing . . . Hacks
Copyright, Fanfiction, and Demetrious Polychron
One of my favorite things to do in Shelf Life is tell you about the publishing industry news and gossip you might have missed if you aren’t both:
Deeply enmeshed in the industry, and
Chronically very online.
Which, I am both, as you know.
Anyway I feel like this may spill over into “news normal people have heard of,” but there are definitely some lessons to take from this developing cesspool of a situation about fair use, intellectual property rights, copyright, and the Lord of the Rings.
So there’s this guy called Demetrious Polychron. If you asked me for my opinion—which you explicitly did not but which you tacitly did by coming here—I would guess that’s a pen name. Demetrious Polychron wrote a book called (prepare yourself): The Fellowship of the King: The War of the Rings (Book One).
This book is about a hobbit named Elanor, whose parents are Samwise Gamgee and Rosie Cotton, and her experiences when she ventures forth from the Shire with some hobbit friends for an adventure in other parts of Middle Earth. The book is described on its Amazon page as part of a “new seven book series detailing the next grand adventure of Middle-earth.”
Does that sound like fanfiction of JRR Tolkien’s Lord of the Rings (LOTR) trilogy to you? Please wait, this gets so much weirder.
According to an article on this topic on MSN, Polychron approached Christopher Tolkien and the Tolkien Estate about his love of JRR Tolkien’s work and asking the estate to review The Fellowship of the King: The War of the Rings (Book One). The estate did not respond. Later, Polychron contacted the estate through a lawyer but his attempts to “collaborate” with the estate on The Fellowship of the King were rebuffed.
This did not pause Polychron, who went ahead and registered copyright of his manuscript to protect the original characters and storylines therein, and published the book. Now, Polychron is suing Jeff Bezos and the estate of JRR Tolkien for $250 million for infringing abovementioned copyright in their making of The Rings of Power for Amazon Prime.
On its face, the first obvious thing wrong with this situation is that the JRR Tolkien estate owns all the rights to all things Lord of the Rings–related; that means any stories set in Middle Earth, or featuring or referencing characters and events from Tolkien’s body of work, cannot be used by other writers and sold without permission from the Tolkien estate, which Polychron did not secure.
Any creative work that uses someone else’s intellectual property (IP) in this way is fanart, which may take the form of visual art or fanfiction (also fanfic), meaning fiction written by fans using characters, events, and settings borrowed from a published author’s work. It’s not illegal to write or share fanfiction, although to “publish” it is dubious; people certainly do publish fanfiction on places like AO3 and Wattpad. There are authors who have famously tried to police the activity of fan writers (including JK Rowling and Anne Rice), but those authors were unsuccessful.
Selling fanfiction is another story; there’s no dubious legality around profiting off a copyright violation. This will absolutely get you sued. There have been famous, successful published novels that began life as fanfiction, including Fifty Shades of Grey by EL James (Twilight AU, or alternate universe, fanfiction), City of Bones by Cassandra Clare (Harry Potter fanfiction), and Carry On by Rainbow Rowell (also Harry Potter fanfiction). However, these works were scrubbed of any references to characters, events, or (fictional) settings from the original IP before they were published and sold.
To be clear, when I say “started life as fanfic” I mean the original work was fanfiction and was shared in a fanfiction archive such as AO3. Later, after achieving wild success in that arena, each book was scrubbed of direct references. Characters and places were renamed and references to events, magic spells, secret societies, and other specifics from the original works were changed or removed. These books were then able to be sold as original works and not as fanfiction of someone else’s IP.
Let’s back up.
When you write a manuscript (or generate any original creative work in a fixed form) you naturally hold the copyright to it. By “naturally” I don’t mean, like, “well obviously this belongs to you” but instead I mean the copyright is conferred as a natural right as opposed to a legal right. A natural right is one you just automatically have, and isn’t granted to you by a law or the government. If you create a book, you naturally own that copyright; you can register it with the government or leverage the courts to protect your copyright but the courts or the government don’t grant it to you. In contrast, driving a car is a legal right. You don’t naturally have the right to operate a car; you have to go to the government and request that right and have it granted in the form of a driver’s license.
When JRR Tolkien wrote The Lord of the Rings trilogy, he acquired the copyright to all therein through his natural right.
Copyright law in the United States grants a number of exclusive rights to the copyright holder, among them:
Right to reproduce and distribute.
Right to import/export.
Right to publicly perform or display.
Right to create derivative works.
Per the last bullet, no one can create a derivative work of a copyrighted IP without permission from the rights holder; in this case, the rights holder of the LOTR property is the Tolkien Estate.
When you write fanfiction, you do not acquire copyright to that manuscript; this is because it is not an original creative work, it is a derivative creative work. You can’t acquire a copyright to something that someone else already has the copyright to—namely, any derivative works created from their copyrighted IP.
If there’s anything to take away from today’s Shelf Life, it’s that last bit. This is not a case of, well, the Tolkien estate owns the copyright to the Lord of the Rings trilogy and Demetrious Polychron owns the copyright to the The Fellowship of the King: The War of the Rings (Book One) so the courts will have to sort out who stole from whom. The Tolkien estate’s copyright of The Lord of the Rings trilogy preempts any copyright to derivative works unless made with express, written permission.
If you wish to publish derivative work based on someone else’s copyrighted IP, the correct thing to do—and which Polychron purportedly did—is approach the rights holder and seek permission or license to use the IP in your derivative work. If the rights holder says no—which the Tolkien estate did in this case—that’s the end. There is no legal recourse to go ahead and publish your work anyway, perhaps because you worked really hard on it and you think it’s really good, if the rights holder has denied permission.
Fanfiction exists undisturbed because it generally falls under fair use; because the writers do not profit from sale of it and don’t siphon sales away from the original works. While fair use may assessed on a work-by-work basis, fanfiction as a whole is generally left alone and considered to fall under fair use. That means a copyright holder could challenge a specific work of fanfiction at any time for copyright infringement; fanfiction is not “universally protected” under the umbrella of fair use. But, for the most, part fanfiction quietly exists and doesn’t bother anyone.
Back to the Demetrious Polychron story which, believe it or not, gets weirder. As of right now, the author’s page on Amazon is claiming he is a coauthor of The Fellowship of the Ring as you can see from this screenshot:
Further, on the book’s Amazon page I saw the publisher listed as Fractal Books, an imprint with which I was not familiar. I looked up their website and it was about what I expected—they publish three authors, one of whom is Polychron, and two-thirds of the books they’re selling are his.
However, when I checked out their Contact page, things got even weirder. As of today, all the links on their Contact page point to Hachette Book Group’s website, including Hachette’s customer service FAQ. Fractal is also directing legal inquiries (whew) to Hachette Book Group. Consider this screenshot:
However, there’s no evidence that Fractal is among Hachette Book Groups’ imprints, which are all listed on their website:
When I titled today’s article “Writing Hacks for Writing Hacks” I did not mean: Write fanfic if you can’t hack it as a real writer. Fanfic is real writing; it’s just writing from which you cannot profit financially. What I meant was: Can’t hack it as a real writer? Just add your name to the byline of your favorite book, make your own publishing company, claim to be part of Hachette—I mean, if we’re just making stuff up the sky’s the limit. Did you know Shelf Life is actually published by Penguin Random House and the King of England reads every essay? It may as well be true. Why not?
I actually pinged Hachette on Twitter about this because I’m curious if they know legal enquiries about this blatant copyright violation operation are being directed toward them but, as the Tolkien estate did when sent an early copy of Polychron’s manuscript, they have declined to respond.
Some things are best not dignified with an answer.
Here’s something you may or may not know about fanfic: If you write fanfic (or read it), you might wonder if the author of the original IP ever reads the fanfic of their property. You might be tempted to send to them, in fact. The answer is, authors of original IPs do not read fanfic of their IPs as a rule, on advice of pretty much every lawyer ever to weigh in on the subject, because no author wishes to be accused of stealing ideas, plot points, events, characters, places, or anything else from a fanfic and putting it into their work later.
The thing for which Bezos and the Tolkien estate are, apparently, being sued to the tune of $250 million.
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