by Josh Catone

This past weekend saw the online release of the first non-spoof, fan-created film set in the Lord of the Rings universe. That by itself is fairly unremarkable, but a number of things set The Hunt for Gollum apart from your standard fan created fare. It’s long (about 40 minutes), it has better than average acting and writing (think direct-to-DVD caliber), it features incredibly high production values despite a meager £3,000 budget, and it is based on canon. That last bit especially, had some wondering if Gollum would run afoul of rights holders at Tolkien Enterprises.

Where most fan art uses original characters and story lines, The Hunt for Gollum‘s writer and director Chris Bouchard based the script on appendices to Tolkien’s original work. That the film uses Tolkien’s actual story could have spelled trouble for the entire production. There are two understood rules in the world of fan art: don’t use official material (like logos, music, and to a lesser extent known characters), and don’t try to make money off your creations.

Bouchard smartly cleared his film with Tolkien’s estate before releasing it. “We got in touch with Tolkien Enterprises and reached an understanding with them that as long as we are completely non-profit then we’re okay. We have to be careful not to disrespect their ownership of the intellectual property,” he told the BBC. And there are undoubtedly a plethora of fans happy he did.

The Hunt for Gollum has been a huge success, amassing over 600,000 views on Daily Motion since it was released on May 3rd, and garnering mainstream press attention from the BBC, WIRED, NPR, and Entertainment Weekly. It’s hard to imagine that all that attention is doing anything but increasing the value of Tolkien’s intellectual property. That’s why Chris Albrecht over at NewTeeVee thinks studios should encourage fan films.

Fan films are nothing new — Wikipedia pegs 1926 as the birth of the genre — but the proliferation of cheap, high quality production tools and the emergence of the Internet as a mass distribution platform has some rights holders waking up to the potential for fan art to keep a brand alive. Last year, for example, DC Comics reversed a long standing policy of aggressively protecting its copyrights and trademarks, including going after fan flicks, and officially okayed fan art that was done on a not-for-profit basis.

But what if fans did sell their art? Would that be so bad? Most fan art is a labor of love, but some fans sink serious time and money into their homemade projects. James Cawley reportedly put more than $100,000 into recreating the original Star Trek set for his well-received fan-made Star Trek web series, and donated crew time likely would have cost more than $1 million at market value.

According to TheForce.net, a fan site for the Star Wars universe, which enjoys a rich community of fan created art with the blessing of George Lucas, the sale of fan films is a “sensitive issue.” Fan filmmakers worry that one project trying to make a buck selling unauthorized fan art could cause rights holders to pull the plug on the entire community.

But Mike Masnick at TechDirt wonders if maybe fans should have more leeway in their ability to sell artwork based on someone else’s IP. Speaking of Bouchard’s agreement with Tolkien Enterprises to keep things non-commercial he wrote, “what if people made such a creative film without reaching such an agreement — or without promising to be totally non-commercial? Would that be so wrong? It wouldn’t take away from or harm Tolkien or Jackson’s work. It would only enhance it. So why should these fans even need to gain permission to create such a movie?”

I spoke to Matt Maggiacomo, who makes a modest living performing as “The Whomping Willows,” a band that sings songs set in the Harry Potter universe, about his thoughts on fan art. The Harry Potter rock community – or wizard rock, as it is known – enjoys one of the most liberal agreements with a copyright holder of any fan art community. Representatives of the wizard rock scene came to an agreement early on with lawyers for J.K. Rowling and Warner Brothers allowing them to continue to create their music and even sell CDs, merchandise, and charge for shows (with a few restrictions, like not being able to sell merchandise online and not being able to use official logos and images on album art, t-shirts, etc.).

“I am lucky to be a fan of a series whose author is so generous with her creation,” said Maggiacomo, who thinks it is a testament to Rowling’s character that she is so open to fan art. “[But] it’s really up to the author/creator of the series. If Jo Rowling came out and said that she objected to wizard rock’s existence, I would quit. No questions asked. Ultimately we all began as fans of a series, and we have to keep that in mind. It takes a lot of work to create a universe; Tolkien and Rowling have each created one of the most complex fictional universes in the history of literature. We have to understand that these universes are the authors’ babies, and they have every right to limit and restrict use of their creations.”

Maggiacomo thinks that one of the reasons that Rowling, Warner Brothers, and Scholastic have been so open to wizard rock and have even allowed its participants to profit from their creations, is that the community as a rule donates a lot of time and money to charity. “I think this sets wizard rock and the larger Harry Potter fandom apart from other fan communities,” he told me.

In 2000, Henry Jenkins, the Director of the Comparative Media Studies Program at MIT, predicted that fan involvement would only become increasingly more important to the success of commercial media. “Soon, [copyright holders] are going to need those active fans more than ever before,” he told the UK’s Guardian newspaper. “In a world with multiple media options, video on demand and micropayments, fans may become the new gatekeepers who help direct consumers toward interesting and engaging media content. The smart media executive should figure out which direction the media-consuming public is moving, run around in front and shout, ‘Follow me.'”

Nine years later, that prediction is likely more true than ever. Albrecht is almost certainly correct that rights holders would do well to encourage fan involvement and be more lenient with fan created art. And if allowing fans to sell their work could translate into a more vibrant and longer-lasting fan community, then Masnick might be right as well. It’s hard to argue against the wisdom of letting fans make money from their creations when looking at the wizard rock movement, which has been able to sustain itself for at least 5 years and has grown to support over 500 bands, while raising thousands of dollars for charity.

Either way, the future looks bright for fan art. More receptive rights holders combined with low cost pro-level tools means better fan art regardless of whether it is made for a profit.