Parting copyright fact from fantasy - Liam McMonagle

Like many people, I’ve enjoyed watching The Rings of Power on Amazon Prime after a hard day’s work. However, as an intellectual property (IP) lawyer, it’s hard not to recognise the number of issues this show raises in relation to licensing agreements (no spoilers ahead, I promise).

For businesses, the purpose of protecting IP is to ensure it’s used effectively, to generate income and increase value. This is commonly done through licensing and distribution agreements, a sensitive matter through which many issues can arise when you consider the owner is giving someone else the right to use, and in some cases modify, a valuable asset that may represent the product of extensive time and investment.

Firstly, it’s important to clearly identify what rights are held and what are not. The Rings of Power is set in the Tolkien universe and is based on events described in the appendices to The Lord of the Rings, written by Tolkien.

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The characters, plots, settings and text will all be protected by copyright owned by the Tolkien estate. Famously, Tolkien’s creation of Middle Earth and the characters, settings, languages, mythology and history of it was so complete that the scope of that copyright is, in practice, immeasurable.

Having been the subject of debate in the UK, it was established earlier this year following a copyright case involving the Del Boy character from Only Fools and Horses, that individual characters in TV shows or literature can be copyright works in their own right.

Often when a work or set of rights is licensed, they are developed and modified for use in a new setting. It is simply impossible, for example, to convert a book into a TV show or film without making various creative judgments about how to depict things in a different medium. The extent to which a licensee is free to exercise creative discretion – or not – is usually addressed in a licence or rights acquisition agreement.

For example, the Harry Potter films are striking in how closely they follow the books from which they are derived. That is slightly less true of the Peter Jackson Lord of the Rings movies, albeit the scale and depth of the book meant various characters had to be merged and certain plotlines were edited out.

Those who own the rights can control how much the course material is modified by allowing adaptations within certain boundaries, but many creators can be quite prickly about how their source material is treated.

PL Travers, who wrote the original Mary Poppins series of books, was famously dissatisfied with the adaptations made by Disney in the hugely successful 1964 film. Nearly 50 years later, George Lucas criticised Disney’s The Force Awakens for not being creative enough with the Star Wars’ rights he had sold them!

With The Rings of Power, the Lord of the Rings source material for the relevant timeline was incomplete. Any recreation of it as part of a TV show would require the filling in of various gaps, while avoiding referencing works which had not been licensed. This all requires additional creative effort.

The result is a new work, derived from the source material but expanding on it and which stands to be appraised in its own right.

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In my opinion, cast diversity reflects 21st century expectations and there are a number of new characters and plotlines. It also seems likely that the look, feel and atmosphere of the Peter Jackson films, which in turn were influenced by renowned Tolkien illustrators, has been incorporated in terms of settings, visuals and musical accompaniments.

Ultimately, the purpose of licensing and developing rights is to generate revenue and enhance the value and relevance of the underlying assets. It is 20 years since the hugely successful films, so Tolkien estate’s copyright in The Lord of the Rings will start to lapse in various countries over the coming years.

How many more seasons of The Rings of Power we get is a commercial decision by Amazon, but it’s likely the final decades of the original copyright will see Tolkien’s work continue to be utilised in various different forms. In the meantime, I’ve got The House of the Dragon to watch.

Liam McMonagle is a Partner in Thorntons’ specialist Intellectual Property team. For further information, click here

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