Lord of The Rings and the Complicated World of Tolkien’s Posthumous Work

At first glance, this seems like it should be a really short article. Question: What works of JRR Tolkien does Amazon have the rights to use for its upcoming series The Rings of Power? Answer: The Hobbit and The Lord of the Rings, including its Appendices, but nothing else. End of article.

But.

Between an extremely complicated legal situation, persistent online rumours about possible changes in the Tolkien Estate’s approach, and the nature of some of Tolkien’s posthumously published works, the situation is a bit more complicated that it might at first appear. So what are JRR Tolkien’s posthumously published works, what is so complicated about the legal issues, and is it possible for the Amazon series to draw on these books?

What Are Tolkien’s Posthumously Published Works?

Thanks to the work of Tolkien’s son Christopher Tolkien, who was his literary executor until his own death in 2020, Tolkien managed to be even more prolific after his death in 1973 than before it, racking up an impressive 35 posthumous publications. These include some of his best known works, such as The Silmarillion, Unfinished Tales, and The Father Christmas Letters.

Because these were unfinished works edited and published by Christopher Tolkien rather than JRR himself, they often contain contradictions where Tolkien changed his mind about elements of story or character. Tolkien was always extremely willing to make alterations to his previous ideas where it suited his story – he actually made changes to The Hobbit after publication, when he developed the idea that the ring Bilbo obtained from Gollum was the One Ring and would form the centrepiece of The Lord of the Rings. This led to the version of the story in which Bilbo finds and takes the Ring, rather than Gollum giving it to him, as he originally did.

Tolkien’s posthumously published works fall under a few different categories: The two major Middle-earth collections: The Silmarillion (1977) and Unfinished Tales of Númenor and Middle-earth (1980). Both edited by Christopher Tolkien, these are the major collections of Tolkien’s myth-making. The Silmarillion is presented as a continuous, if slightly disjointed, narrative. Unfinished Tales includes copies of different versions of the same stories from different drafts and some of Tolkien’s notes on the work. Both include material relating to all three Ages of Middle-earth, but with a focus on the First Age. The Third Age is the one that comes to an end with the climax of The Lord of the Rings; there is less material on the Second Age, which is why it was chosen as the focal point for the Amazon series – since legally they can neither use nor contradict anything that appears in these books, they have more freedom to be creative with the less-written-about Second Age.

Academic Works And Non-Fiction

Letters of JRR Tolkien (1981), The Monsters and the Critics and Other Essays (1983), Tolkien On Fairy-Stories (2014)and A Secret Vice: Tolkien on Invented Languages (2016).

These are all collections that provide access to Tolkien’s thoughts on a variety of topics. The Monsters and the Critics is a collection of some of Tolkien’s academic lectures, and Tolkien On Fairy-stories and A Secret Vice provide a detailed look at one of them in particular. Letters of JRR Tolkien does exactly what is says on the tin; it’s a collection of letters Tolkien had saved copies or drafts of, edited by Humphrey Carpenter and Christopher Tolkien.

The History of Middle-earth (1983-1996). This twelve-volume set of chunky books edited by Christopher Tolkien collects Tolkien’s various drafts and notes on his Middle-earth stories, presented in order of Middle-earth chronology. It’s a fascinating insight into a writer’s process, and full of discarded gems (did you know, for example, that Aragorn was originally a hobbit called Trotter?).

Three novel-length versions of stories from The Silmarillion: The Children of Húrin (2007), Beren and Lúthien (2017), and The Fall of Gondolin (2018). These were all put together and edited by Christopher Tolkien. The material is taken from The Silmarillion, but re-edited and presented as a single novel-length story.

Other Bits And Pieces

Tolkien was a prolific scholar and writer, so there are many more posthumously published works not directly connected to Middle-earth. These include re-tellings of Norse mythology and Arthurian legend, children’s stories (including The Father Christmas Letters) and translations of Old English texts.

What Is The Current Legal Situation And Why Is It So Complicated?

JRR Tolkien sold the motion picture rights to his two commercially successful novels, The Hobbit and The Lord of the Rings, to United Artists in 1969. These were then sold to the Saul Zaentz Company in 1976. When Christopher Tolkien took over as literary executor on Tolkien Senior’s death, he made it clear that he wasn’t interested in selling the rights to any more of his father’s work. The rights to the rest of Tolkien’s works are held by the Tolkien Estate; Christopher Tolkien, along with other members of the family, was a director of the Estate until 2017.

When Amazon bought the television rights to The Lord of the Rings in 2017, these rights included only The Lord of the Rings and The Hobbit, and none of Tolkien’s other works. They are also limited in how much use they can make of the two novels themselves, since the motion picture rights to both are held by New Line Cinema, with MGM holding rights to The Hobbit as well. Amazon’s deal was struck with the Tolkien Estate, Harper Collins (who own the rights to the books), and New Line Cinema (a division of Warner Brothers). All of these are co-producers of the series. According to The Hollywood Reporter, the attorney representing the Tolkien Estate described it as “the most complicated deal I’ve ever seen”.

As part of the agreement, Amazon agreed not to contradict any existing material – which is a pretty big thing for a creative team to commit to, considering dramatizing a story for the screen can involve some major changes to the original. The way showrunner JD Payne Payne put it to Vanity Fair was that the agreement involved “not egregiously contradicting something we don’t have the rights to” – so, they can alter things a little bit, but they can’t make significant changes to pre-existing material, even from works they can’t use. This depends, of course, of your definition of ‘egregious’ or ‘significant’ – for many fans, the compressing of Tolkien’s timeline from thousands of years into a single human lifetime is a drastic alteration. However, Payne said that they had talked to the Tolkien Estate about the need to compress the timeline for their show, and got the green light to go ahead with that particular change.

The Appendices to The Lord of the Rings offer only very brief details about the Second Age, and there are a few references to it in the stories as well. Anything that appears in these, even if it also appears in the same form in one of the posthumously published works, is fair game. But anything that only appears in the posthumously published works (or, indeed, any other related works published during Tolkien’s lifetime, like The Adventures of Tom Bombadil, published in 1962), cannot be used in the Amazon series.

However, for several years there have been persistent online rumours that the series will, in fact, draw on some material from the posthumously published works. As far back as 2019, when Tolkien scholar Tom Shippey parted ways with the Amazon series, there were rumours that the reason for the split was an interview he did with German fan site Tolkien Gesellschaft that had apparently implied that the series might use some material from Unfinished Tales.

In July 2021, a “spy report” published on TheOneRing.net claimed that the Tolkien Estate are “very happy” with the series and “confirmed” that “elements and passages from The Silmarillion and Unfinished Tales are licensed by Amazon Studios for this adaptation”. Christopher Tolkien, who was especially protective of the work he had done on his father’s posthumous publications, stood down as one of the directors of the Tolkien Estate in 2017, before passing away at the age of 95 in 2020. Speculation is therefore rife that the surviving members of the Tolkien family and directors of the Tolkien Estate may be more flexible about allowing some of this material to be used.

But this has never been confirmed by any kind of official source from Amazon or anyone else involved with the show. The Rings of Power showrunners JD Payne and Patrick McKay, despite all the online rumours, are still clear that they only have the television rights to The Hobbit, The Lord of the Rings, and its Appendices – nothing else. They specifically told Vanity Fair in February of this year that they don’t have the rights to The Silmarillion, Unfinished Tales, or The History of Middle-earth.

Can The Posthumously Published Works Provide Any Clues To What We Might See In The Rings of Power?

Yes and no.

Assuming the legal situation is still straightforwardly that Amazon can use material from The Hobbit and The Lord of the Rings but nothing else, we might get some clues to things that won’t happen, because that would be a breach of the agreement. For example, in one draft published in Unfinished Tales, Tolkien briefly considered having Celebrimbor, forger of the Elven Rings, be in love with Galadriel. If the Amazon series can’t use anything from Unfinished Tales, then it can’t portray Celebrimbor in love with Galadriel without breaching copyright law.

If the situation behind closed doors is more complicated and flexible, then the situation is reversed. If the team have permission to use some elements of the posthumously published works that relate to the Second Age (while continuing to avoid anything relating to First Age) then we might, in fact, see Celebrimbor in love with Galadriel, or another detail form Tolkien’s various drafts published in those books.

But perhaps the most fruitful area to look for clues is in Tolkien’s academic work and non-fiction. A dramatic adaptation can’t quote directly from academic works without permission (it wouldn’t come under allowances for ‘fair dealing’, which allow quotations for the purposes of teaching, criticism, reviews, news reporting, and parodies). But they can take the ideas expressed in academic works and apply them to their creative work.

For example, Tolkien wrote at length about how he felt about the meaning and value of “fairy-stories” in his well known article ‘On Fairy-Stories’. He developed the idea of creating a moment of “eucatastrophe” for the climax of a story, a “sudden joyous ‘turn’” in which despair turns to elation. The showrunners of The Rings of Power will have to do a lot of work on the plot of the series to fill in the gaps in the history of the Second Age of Middle-earth and to compress it into a shorter timespan. They might consider creating a moment or two of “eucatastrophe” in their story, and doing so wouldn’t infringe copyright in any way; anyone can take a story-telling idea and use it in their own work.

Tolkien’s Letters are another grey area. No specific extra material relating to Middle-earth from these Letters can be included if the legal situation remains fixed. However, Tolkien wrote at length about his ideas and inspirations, and that in turn might inspire the showrunners. For example, Tolkien suggested in Letter 211 that the Númenóreans, “are best pictured in (say) Egyptian terms” thanks to their “love of, and power to construct, the gigantic and the massive. And in their great interest in ancestry and tombs”.

So, while The Rings of Power could, perhaps, use an Egyptian-style theme in the art and design of Númenor. The fact that the Greek story of Atlantis, told by Plato, was a major inspiration for the story of Númenor is also well known and Tolkien talked about it in Letter 154. So the showrunners could perhaps draw on Greek myth for some of their story elements, or on Greek art and architecture for design elements. Drawing on ancient cultures Tolkien explained were part of his inspiration would not contravene any of the legal restrictions, but would still make use of his posthumously published works in developing this new version of Middle-earth.

Lord of the Rings: The Rings of Power starts on Amazon’s Prime Video on September 2^nd.