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One work to rule them all?

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Published Date: May 17, 2023

Battle lines have recently been drawn, after fan fiction writer, Demetrious Polychron, filed a 250-million-dollar lawsuit against the Tolkien Estate and Amazon on the basis of copyright infringement. Mr Polychron claims that his novel, The Fellowship of the King, which draws inspiration from the works of J.R.R. Tolkien, is a wholly original book and concept that was infringed by the Amazon Prime Original Series, The Lord of the Rings: The Rings of Power.

In his arsenal, Mr Polychron relies on the fact that his work was registered with the US Copyright Office in 2017, and that a copy of his manuscript was sent to Tolkien’s grandson (and director of the Tolkien Estate), Simon Tolkien, for his review. After his first approach went unanswered, Mr Polychron alleges that his attorneys then attempted to contact the Estate again in 2019, in the hopes of brokering a collaboration. When it became clear that the Estate had no interest in collaborating with Mr Polychron, a final letter was sent conveying that Mr Polychron would be publishing his manuscript independently, with additional novels in the pipeline. Interestingly, The Fellowship of the King was published for sale on Amazon’s website in September 2022, in the same month that The Lord of the Rings: The Rings of Power series premiered on Prime Video.

Under the South African Copyright Act of 1978, Tolkien’s novels and stories would specifically be protected under the definition of “literary works”. Unlike the US system, it is not necessary for an author to register copyright in South Africa, as this right comes into existence automatically when an original work is created.

As part of the assessment of copyright infringement, our Courts would apply a qualitative test and examine the degree of objective similarity between the two works in question. The Court would also need to consider whether a causal link exists between the original work and the alleged infringing work, meaning that Mr Polychron would need to prove that the show producers actually considered his manuscript, and adapted or copied substantial elements of it when producing The Lord of the Rings: The Rings of Power series.

Of course, Mr Polychron would only be able to proceed with a copyright infringement claim, if he is able to prove that he has, in fact, created an original and protectable copyright work (which, on the current facts, seems to be a more difficult quest than getting to Mordor). While it is possible to create a new copyright work from an existing work through the author’s own skill and labour, the author will need to show that the new work is individual and distinctive.

Another calculation which must be considered is when the copyright in Tolkien’s original works will fall into the public domain. Under our Copyright Act, the term of copyright protection conferred on the author of a literary work subsists for the life of the author plus fifty years, calculated from the end of the year in which the author dies. If this battle was to make its way before a South African Court, a key date to consider is that J.R.R. Tolkien passed away on 2 September 1973, meaning that, from a South African perspective, the copyright in these works will fall into the public domain on 31 December 2023.

The rights to J.R.R. Tolkien’s original works are also extremely “precious”, considering that The Lord of the Rings: The Rings of Power series was based on appendices to J.R.R. Tolkien’s works as the Estate did not consent to the right to adapt The Lord of the Rings texts for television. No doubt that the Estate shall not let this one pass, and we anticipate a fully mounted defence to this allegation of copyright infringement. It will also be interesting to see whether the Estate explores instituting its own counter-claim. We are monitoring the developments in Middle-Earth closely, for signs of smoke.

Jared de Canha

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