Navigating copyright in the world of fanfiction

An American court has ruled that Demetrious Polychron, the author of the Lord of the Rings spin-off "The Fellowship of the King", breached US copyright laws with his fanfiction sequel based on the Lord of the Rings trilogy. Polychron published his own "sequel" to the Lord of the Rings trilogy in 2022. After unsuccessfully suing the estate of the deceased Lord of the Rings author and Amazon for copyright in relation to their Amazon TV series "Rings of Power", Tolkein's estate filed a counter-lawsuit against the fan-fiction author. The Tolkien estate alleged that Mr Polychron breached the estate's copyright in the Lord of the Rings books by using the same characters, setting and backstory from the original book in his spin-off fiction novel.

The Californian Court held that the fanfiction author was infringing Tolkein's estate's copyright in producing the spin off novel (and planned series of novels) and ordered Mr Polychron to destroy all physical and electronic copies of "The Fellowship of the King", and cease publishing any further works based on any other copyrighted work by J.R.R. Tolkein.

Falling foul of copyright laws

Fanfiction has become a popular mechanism for fans to share their love of a particular fictional work by exploring unanswered questions in the original novels or creating new stories about particular characters. Numerous websites have been set up to allow authors of fanfiction to share their stories with others. While many authors do not object to fanfiction, acknowledging that it is often a show of appreciation by fans of the original works, such works are likely to infringe copyright laws and could also amount to passing-off under the common law in the UK (by representing the work to be that of someone else).

Copyright is an intellectual property right that protects original works such as books, music and any other artistic works. The law of copyright is governed by the Copyright, Designs, and Patents Act 1988 ("1988 Act"). In the UK, copyright vests automatically upon creation of the works and does not require any formalities such as registration or application to an external body. In the UK, copyright is limited and ceases to exist after 70 years of the death of the author of the work. A recent example of this being the copyright protection of Disney's earliest Mickey and Minnie Mouse which ended on New Year's Day, meaning that anyone can now use those specific versions without cost or permission being required.

In the 2022 Intellectual Property Enterprise Court case of 'Shazam Productions Ltd v Only Fools The Dining Experience Ltd', the court found that fictional characters can be recognised as copyright works. In this case, the character "Del Boy" from Only Fools and Horses was used by a restaurant running an Only Fools and Horses themed theatrical restaurant, "Only Fools The (cushty) Dining Experience". The restaurant actors used the appearance, mannerisms, voices and catchphrases of the Only Fools and Horses characters as part of their performance. Shazam Productions' argument relied on there being copyright in the characters, as well as the scripts from the show, and claimed this amounted to 'passing off'. The restaurant claimed that the characters and materials were not protected, and the parody exemption to copyright applied. In considering both arguments, the court found that the character of Del Boy satisfied the two-stage test to qualify for protection as a copyright work, namely (1) originality and being of the author's own intellectual creation, and (2) identifiable in that the subject matter was expressed in a way which made it identifiable with "sufficient precision and objectivity". The court therefore rejected the restaurant's argument and whilst they considered the restaurant's defence of parody and fair dealing, they found it did not apply in these circumstances due to "extensive" copying from the scripts. Shazam Productions' claims for copyright infringement and passing off succeeded.

There are instances in which copyrighted materials can be used without being in breach of copyright law and where consent from the owner will not be required (under the 1988 Act copyright exemptions), including for news reporting, quoting or teaching. We are happy to provide further advice on the specific exemptions, should you seek to rely on the various exemptions under the 1988 Act, to ensure your organisation does not fall foul of the legislative requirements.

Alongside the copyright of the Lord of the Rings works, the Tolkein estate has also trademarked the "Tolkein" name in certain classes and as such, it cannot be used in these areas without the Tolkein estate's permission. Trademarks are a further aspect of intellectual property law and protect unique elements of an entity's intellectual property rights such as slogans, names and logos. In contrast, a trademark must be registered to obtain protection and there are 45 classes of goods and services which can be selected. In the UK a trademark is registered with the UK Intellectual Property Office and must be renewed every 10 years.

A helpful reminder – know your copyright laws

These cases provide a reminder to those producing amateur works on copyrighted materials, including fanfiction, to ensure that they are not breaching copyright laws. It follows similar actions in the US such as the lawsuit raised by CBS and Paramount against fanfiction writers Anaxar in relation to their prequel film set 21 years before the first Star Trek episode.

Where a party is breaching copyright, for example, by making copies of the work, performing or adapting the work, in addition to reputational damage, an interdict (or injunction in England) can be granted by the court to prevent that party from continuing to infringe copyright laws and publish the works. Damages can also be sought to compensate for any loss caused. Both businesses and individuals should remain cautious when using or adapting any copyrighted works without express permission from the owners.

If you require advice or assistance in relation to any of the issues raised in this blog, please contact Alison Bryce, Rebecca Ronney, or your usual Brodies contact.