He’s attempting to profit using someone else’s intellectual property. It’s the definition of copyright theft. It’s the entire reason copyright exists.
The issue isn’t actually about making the content. Fan fiction is a thing and there’s no penalty for making your own sequels or stories using characters and stories under copyright. It’s selling and profiting from a copyright you don’t own or have a license for that is an issue.
No, there’s a distinct difference between creating a high fantasy story using general ideas and settings, and using someone else’s created world and characters.
Lord of the Rings and A Song of Ice and Fire have fairly similar high fantasy settings, and share a lot of similarity with character types and world building, but they clearly are not the same and despite those similarities, are very different stories. Heck you can even bring in old tales of King Arthur and Merlin into this similarity comparison as well.
There is a distinct difference between stories with similar ideas and literally copying characters or world without changing even things like character or place names.
For instance, 50 Shades of Grey was originally a Twilight fan fiction called Master of the Universe. It used Twilight characters, just with a different story. It would never have been able to be published using the actual Twilight characters though, so things like character names were changed to no longer infringe. Sometimes it’s that simple.
Most fan fiction by strict definition is copyright infringement, however most fan fiction will qualify under other protections like parody, or the simple fact that it isn’t trying to be sold and make a profit. Fan fiction isn’t trying to make another book, or animation, or movie, etc. and market it as if it were part of the original story. It clearly is made by fans and it is treated as such. No one, not even Disney, is going to go after you for drawing Mickey Mouse and posting your drawing online. But if you try to make a Mickey Mouse show, or game and sell it, then you’ll definitely have to deal with copyright issues.
The thing we’re talking about here is someone writing literally a new Lord of the Rings sequel novel, in universe with the same characters, and then selling it as a new Lord of the Rings novel. That is what copyright protects for the original creator to control.
Most fan fiction by strict definition is copyright infringement, however most fan fiction will qualify under other protections like parody, or the simple fact that it isn’t trying to be sold and make a profit.
While parody is an exception to copyright infringement most fan fiction is not parody - arguably most fan fiction is the direct opposite of parody because fanfic authors often treat the work they're infringing super-seriously. ;-) So most fanfic couldn't rely on the "parody" defence.
And not selling or making a profit from a piece of fanfic does not afford any legal protection to copyright infringement either. Just because you're not making money off a piece of fanfic doesn't mean the copyright owner can't rightfully sue you.
No one, not even Disney, is going to go after you for drawing Mickey Mouse and posting your drawing online
I agree, but Disney still has the legal right to go after you if they wanted to - it's just that they don't bother. Most fanfic survives by the good graces of the copyright owner, and/or because it flies so far under the radar the copyright owner isn't aware of it, or doesn't worry about it. But that's not the same as having legal protection against infringement.
“The writer of an unauthorised Lord Of The Rings sequel has been ordered to destroy all physical and electronic copies and pay more than $130,000 in legal fees.”
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