Copyright claim against Tolkien estate backfires on LOTR fanfiction author

In this particular case the Guardian article doesn't answer the question, but it's almost certainly the case that the courts found that Tolkien's estate didn't infringe upon Polychron's unauthorised work. In the UK (and much of the world), the bar for creating an original work is incredibly low, currently it's the EU approach where the author needs to express (creative) originality through choice, selection, or arrangement of a work. Previously the UK had the 'sweat of the brow' rule where the bar was even lower, only requiring 'labour, skill or judgement' in producing a work. The UK also explicitly protects derivative works from being considered infringement if they're found to be a parody, caricature, or pastiche, but this obviously isn't the case here.

Also note that 'copyright service' is a private company that sells copyright protection as a service through registering a work. The UK, unlike some countries, has no register of copyrighted works so you don't need to register a work for it to receive copyright protection in the UK.

I'm honestly asking because I can't find anything that goes as far as the claim you're making regarding original elements. I'm not even sure what original/severable elements could exist in that particular case.

They stole first, and then got protected by law.

It's a lot less than 100 years, actually. I put it at the 1976 copyright extension act where things went totally off the rails.

(You could argue the 1909 act, which was accompanied by discussion in the Senate re: benefiting copyright holders in their old age and providing for their descendants was where things went wrong. The term didn't become outrageous at that time though. The 1909 act also required registration of copyrights as a balancing feature-- a requirement that would be removed subsequently.)

re: terms and the lobby

The original term of copyright in the US (1790 copyright act) was 14 years w/ an optional single renewal to 28 years (drawing inspiration from the Statute of Anne).

The 1831 copyright act increased the term to 28 years with an optional 14 year renewal. Noah Webster, cited by some as the first copyright lobbyist in the US, had an influence on this act (as did European copyright terms and "normalization" of US copyrights to match Europe-- a theme that repeats).

Samuel Clemens suggested copyright terms should be perpetual in an appearance in 1906 before the British House of Lords. Presumably he was voicing the same opinion in the US. He wrote about how any "reasonable author" would like copyright to "take care of his children" and "let the grand-children take care of themselves". (Why the children of copyright holders should be entitled to a "free ride" while others' children are not is a topic worthy of debate. Being the child of a copyright holder doesn't confer some inability to make one's own way in the world, to my mind.)

In 1909 the term of the optional renewal was extended to 28 years.

Up to and including 1909 US copyright seems fairly reasonable to me. It certainly seems capable of providing incentive to creators. A 56 year term is longer than I'd like, personally, but it isn't ridiculous. The public domain is still enriched and creators have the opportunity to create new derivative works.

In 1976 the term was extended again to either 75 years (works for hire) or life of the author plus 50 years. This is where, in my mind, the "social contract" became radically and unfairly stilted in favor of copyright holders (not necessarily creators-- since work-for-hire was codified in 1909 and became a normalized practice between '09 and '76). Corporate interests lobbied hard for the '76 changes and again for the Sonny Bono extension act in 1998 (Disney figuring in both times, for example).

I regard the '76 copyright extension as nothing other than a "pull up the ladder" action, and the '98 extension as even more so. So much of human creation is derivative. The '76 extension robbed significantly from the public domain. The '98 act changed the rules retroactively again, pushing the ability of creators to make new derivative works out to ridiculous future dates.

To my mind everything after the 1909 act has been serving the interests of copyright holders w/o regard for balancing the good of society.

Society has a shitty lobby (and post Citizens United money equals speech). It's never going back to being a fair system.

re: doing well for one's offspring - Consolidation of wealth and generational wealth are concepts worthy of debate. I don't think they're an unalloyed good, nor do I think I'm alone in that thinking.

But then, you're right about the second point. But even here, why would you assume that someone who's a talented fantasy fiction author would also be a talented businessperson? So conversely, if he's a bad businessperson, this doesn't make him necessarily a bad author. I don't have any other examples for authors, but I can name a bunch of rock stars off the top of my head who were fantastic and gifted musicians but totally clueless about business (and many other things too).

Popular conceptions of fantasy races (elves, dwarves, goblins, orcs, trolls, etc) are heavily indebted to Tolkien's portrayals of them in his works. While many of them were based on concepts from European (and especially Scandinavian) folklore, Tolkien's representations of those races were much more specific and different in character.

For instance, folkloric "elves" ranged anywhere from midgets to fairies to demons. Tolkien's nature-attuned immortals were a substantial departure from these traditions, and have suffused popular culture to the degree that they're now the default interpretation of "elf" in most contexts outside Christmas. The "orc" is an even more extreme example; the word was attested in some Old English texts but was long extinct in English by the time he borrowed it for a race of evil creatures in The Hobbit.