You have heard about authors suing fanfiction writers, you have heard about authors suing ChatGPT, but have you ever heard of fanfiction writers suing authors?
In a rather bizarre case, Demetrious Polychron, an avid fan of the Lord of the Rings franchise, decided to sue the Tolkien Estate and Amazon for alleged copyright infringement of his Lord of the Rings fanfiction.
In 2017, Polychron shared with the Tolkien Estate a sequel he wrote to J.R.R Tolkien’s Middle Earth trilogy which he titled “The Fellowship of the King”. Despite the Tolkien Estate’s explicit refusal to grant Polychron third-party publication rights, Polychron proceeded to self-publish his book. The Tolkien Estate then sent Polychron a cease-and-desist letter and tried to contact him about the issue but to no avail.
Fast-forward to 2022 when Amazon Prime released its Lord of the Rings prequel TV series “Rings of Power”. Polychron filed for copyright infringement against both the Tolkien Estate and Amazon, alleging that the TV series infringed the copyright of his book and sought a whopping $250 million in compensation. Polychron argued that his book was a wholly original sequel with its own characters and story which “compose as much as one-half of the 8-episode series”. (I was very confused because I thought his book was a sequel and Rings of Power is a prequel?)
As expected, the judge dismissed Polychron’s lawsuit as frivolous and ordered him to pay $134,000 in lawyer’s fees. Furthermore, the Tolkien Estate sued Polychron, seeking an injunction and arguing Polychron’s book was a “willful and blatant” copyright infringement of Tolkien’s works. This injunction was granted and Polychron was ordered to destroy all electronic and physical copies of his work.
While it is difficult to feel sorry for Polychron given his serious misjudgment, the case once again calls into question the legal status of fanfiction and other fan creations. I am someone who is very supportive of fan creations and believe they are beneficial both to the fans and the authors. Fan creations generally have a net positive impact on individual creative development and also in the publicity of an author’s work by creating long-lasting communities. In addition, the author’s original works often constitute only a small component of the fan creations which typically only borrow characters and certain storylines. However, while I do think copyright law should offer better protections for fan creators, I also recognize authors would like to exert control over their creations. In addition, there is also the question of to what extent fans should be able to profit off of their works. There are varying degrees of financial incentives in terms of fan creations. The Non-Commercial User Generated Content defence in the Canadian Copyright Act may protect fan creators, but what exactly is non-commercial? Should fans be prevented from earning commissions despite their work being mostly original content? If a fanfiction writer’s blog has a tipping function, is their work no longer protected by the defence? While most fans do not have commercial incentives in their works outside of perhaps earning a small commission, there are also rare cases such as Polychron where fans commercially publish their works despite express disapproval from the authors which feel less justifiable. As such, it is difficult to say where the appropriate balance should be struck between users’ and authors’ rights.
Source article: https://www.nytimes.com/2023/12/21/arts/lord-of-the-rings-sequel-lawsuit.html
Communications Law