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Octopus Books publishes a range of books that are set in the Tolkien legendarium, from coloring books through to a range of books by David Day. They are widely available online and through retail stores (at least here in the UK). All of these books have a disclaimer on the back that says

This work is unofficial and is not authorized by the Tolkien Estate or HarperCollins Publishers.

At the same time, according to Wikipedia

The Tolkien Estate maintains the position that the geographical layout of Middle-earth or any other places in the imaginary universe created by J.R.R. Tolkien was the intellectual property of J.R.R. Tolkien and subsequently is that of his heirs. The Tolkien Estate has therefore restricted the publishing of maps to those authorized by the Estate and legally pursues anyone who publishes any maps, including self-made works, on the Internet.

Granted, that's primarily related to geography, but how does Octopus Books get away without a substantial lawsuit against them? Some of Day's books have custom maps in them. Surely a disclaimer is insufficient?

Btw, I asked the same question on Law.SE and the answer was basically that maybe the Tolkien Estate hadn't noticed, which seems highly unlikely.

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    Is your only reasoning for rejecting the law answer that it's "unlikely"? – Edlothiad Jan 18 '18 at 13:40
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    I accepted the law answer on the site, as a couple of people made that case, but I find it very hard to believe that a range of books so widely available would have escaped the attention of the Tolkien Estate or HarperCollins. – Phil John Jan 18 '18 at 13:44
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    It may be worth noting here, however, that David Day is a terrible author when it comes to sticking to Tolkien canon as has been stated by numerous Tolkien Scholars and the community at large. – Edlothiad Jan 18 '18 at 13:49
  • These might actually go under the fair use act, otherwise I'm clueless. I've read your Law question, they were really not very helpful there. – Edlothiad Jan 18 '18 at 13:59
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Although these books do seem to fall somewhere in the crack between outright infringement and fair usage David Day seems to be relying on a number of legal figleaves to protect himself:

  • The books always prominently marked as being written by David Day rather than by J. R. R. Tolkien

  • The books contain a disclaimer on the first page that these books are not licensed works, nor works directly written by Tolkien

    This book has not been prepared, authorized, licensed, or endorsed by J. R. R. Tolkien’s heirs or estate, nor by any of the publishers or distributors of the book The Lord of the Rings or any other work written by J. R. R. Tolkien, nor anyone involved in the creation, production or distribution of the films based on the book.

  • The books contain a disclaimer in the marketing blurb for each book highlighting that these are derivative works, not originals.

    This work is unofficial and is not authorized by the Tolkien Estate or HarperCollins Publishers.

  • The books each contain a preface extensively describing the "transformative" aspects (e.g. what input the author has provided above and beyond simply quoting from the original author). His An Atlas of Tolkien, for example contains this in the preface:

    This Atlas is a compilation of specially commissioned and created art from some of the most talented fantasy artists of the past four decades. It began with the enormous investment in original full-colour art exclusively commissioned for the publication of A Tolkien Bestiary (1979) as the first ever fully-illustrated reference work on JRR Tolkien. Subsequently, new original artwork was created for Tolkien: the Illustrated Encyclopedia (1992) and for The World of Tolkien: the Mythological Sources of Lord of the Rings (2002).

    His A Dictionary of Tolkien has this:

    The Tolkien Companion was written in celebration of this aspect of J. R. R. Tolkien’s genius. It was compiled and designed as a compact and easy-to-use guide to Tolkien’s world. The purpose is to inform and entertain those readers who wish to use the Companion to help them in their personal exploration of the extraordinarily complex invented world and mythology of Middle-earth and the Undying Lands.

    No-one reading those could be in any doubt that these are not original writings by Tolkien and that the contents include additional work/s not by Tolkien.

  • Day also posits the argument that his works enhance the value of Tolkien's works rather than diminishing it.

    'Their father's work is a sacred text to them and they feel that anything that doesn't come from them, the Tolkiens, can only ruin it'... [Day] laughs at the furious letter he received from Christopher Tolkien calling him 'an ass' and 'more like a burglar than a writer ... In the past two months alone, stores have sold more copies of The Lord of the Rings than the typical annual totals before JRR's death."

    Daily Express - The Sad Legacy of Tolkien's Fable - Google Groups Reproduction

It's also fairly telling that Chris Tolkien personally wrote him an unfriendly letter. You don't badmouth someone if you think there's any possibility that you can successfully sue them instead.


So why don't they sue him anyway?

There's every possibility (and in fact every likelihood) that they'd lose in fairly short order. Day would undoubtedly mount a robust "fair use" defence under at least two of the four elements that need to be considered when determining if an item is copyright infringing; that his books are substantially transformative (by adding entirely new content and elements of commentary) and that they're not harming sales of Tolkien's original works (since there are no other comparable works published by the Tolkien Estate and since, almost by definition, someone would have to already own an official Tolkien book before they'd consider buying a book of commentary about it).

In addition to being an enormous waste of money and time, and coincidentally providing Day with hundreds of thousands of pounds of free publicity for his books, losing such a case could harm the Estate's future ability to fight against more egregious infringements.

Given the age of these works and the fact that their rights haven't always been continually asserted, it's at least possible that an unwelcome judgement might open the floodgates to other derivative works or, in an apocalyptic worst-case scenario, the judge might even rule that elements of the original copyright no longer apply. The risk probably just isn't worth it to swat this fly.

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    Hmm, the tail end of this reminds me of an important difference between copyright and trademark. Namely, with trademark, letting something slide harms your ability to go after other infringements; but as you point out, that's not the case with copyright infringement (and a poorly chosen lawsuit could set a precedent that you don't want). It might be worth adding something about that to the answer? – Ethan Kaminski Jan 18 '18 at 17:26
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    You should mention that no one should ever read anything David Day has written as its all made up misinterpretations – Edlothiad Jan 18 '18 at 20:18
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    @Valorum let's put it this way, he is the flat earth equivalent to Tolkien's legendarium. A lot of scholars have pointed out how poor his writing is and the amount of things he liberally alters this provides a snipper of what some of the best acclaimed Tolkien Scholars have said. His infamous Lungs map is a perfect example of the non-canon gibberish he posts. – Edlothiad Jan 18 '18 at 20:53
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    @EthanKaminski - it's worth noting that it's actually generally held to be quite tricky to prosecute works like this for copyright infringement: because they are largely original work and are effectively inspired by the original rather than copying it directly (for the most part), the case for copyright infringement is far from clear cut. If you're interested in the legal details this blog ... essay ... by IP lawyer C E Petit gives a good justification of why fanfic is probably more appropriately dealt with by trade mark than copyright. – Jules Jan 18 '18 at 22:23
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    @Martin - You'll have to be careful. DC have a wide range of guides and factbooks about Batman which demolishes defence #2 (harming sales). – Valorum Jan 19 '18 at 9:30

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