Recently, a few decisions were issued involving an unauthorized sequel to The Lord of the Rings (“LOTR”). In one, a court found that Amazon and the Tolkien Estate did not infringe upon the author’s book. In the second, the court found that the author’s book infringed upon the rights of the Tolkien Estate.
Demetrious Polychron filed a lawsuit in April against Amazon, the Tolkien Estate and many others. In the filing, Polychron claimed that he wrote a sequel to LOTR called The Fellowship of the King. He sent copies to Tolkien’s grandson asking for the work to be published, and he did not receive a response. He subsequently published the work himself, and he intended to publish a seven-book series. Polychron’s lawsuit claimed Amazon’s Rings of Power series copied elements from his works and constituted copyright infringement. He sought at least $250,000,000 from the parties involved for copyright infringement.
In a summary judgment ruling, the court found that Amazon’s Rings of Power did not infringe upon Polychron’s book. In fact, the court found that because Polychron’s book was an unauthorized derivative work based on LOTR, he was precluded from bringing a copyright infringement claim. In analyzing the work, the court reiterated the rule that copyright owners have the exclusive right to prepare or authorize derivate works based upon their preexisting work. Polychron’s work used characters from LOTR and was a direct continuation of the work. As such, it was a derivative work and not entitled to copyright protection.
In the second case, the Tolkien Estate filed a copyright infringement lawsuit against Polychron. The court recently issued an permanent injunction forbidding Polychron from making further derivative works based on LOTR and to destroy any existing copies of the current works.
This case continues a fairly strong line of cases showing that unauthorized derivative works will likely be found to infringe upon copyright. When a work utilizes characters, worlds, and plot elements from a previous work, it runs the risk of a copyright infringement claim. The risk significantly increases when the work is being sold for profit and directly competes with the market for the original work. The only derivative works that have been found to be fair use are those that tend to provide commentary on the original. A work that is just a continuation of the story in the original will likely not be a fair use.
If you want to write fan fiction, it is important to be aware of these cases, and if possible, structure your work in such a way as to avoid a copyright infringement claim.
Final notes about this case:
1) Polychron received a copyright registration for his work. This is a reminder that the copyright office does not usually weigh the merits of whether a work is an infringement when processing registrations.
2) Polychron sold his work. Selling your fan fiction for profit raises the chances of a lawsuit.
3) Suing the original copyright owner for infringement of your unauthorized derivative work rarely turns out well.
See page 10, Order Granting Defendants’ Motions to Dismiss the First Amendment
 Id. at page 12.