We fully understand what you are saying... your just not understanding our replies.

1. You need permission from the Tolkien Estate/foundation
2. The other people you talk anout who are doing LotR games also need permission
3. Some of them may actually HAVE permission as they may have contacted the IP owner (but I think this is very unlikely because of the business reasons which Frob explained earlier).
4. Those people making LotR games without permission of the Tolkien Estate are infringing on their copyright. The IP owner has the right to take action against them including taking them to court.
5. The Tolkien Estate isn't the Eye of Mordor - they can't see what everyone in the whole world is doing so they may not know about these teams. If these games get made and become successful then the Tolkien Estate will most likely find out (or possibly one of the game companies who paid millions of $ for the rights will find out and tell the Tolkien Estate) and at this point they may decide to take legal action.
6. Just because those people haven't been caught yet doesn't mean that what they are doing is right or that it is allowed.

Conclusion
LotR belongs to someone. You need their permission to make a game using the IP - It makes no difference at all if this is freeware, commercial, opensource or raspberry sauce. You need to get their permission. Some people in the world don't care about rights of other people. They think that because they like something they can do whatever they want with it and ignore the rights of the people who own it.

Are you one of those people? If you are they go ahead and do what you want (and don't waste our time trying to find some reason why it is OK - there isn't one).

Quote:

Original post by Muzo72 the owners of that property have a right and a legal responsibility to defend its value.

You're confusing trademarks and copyrights. Trademarks do indeed need to be defended. Copyright, which covers things like the text of LOTR and any derivative works, is yours until it expires, period. Copyright owners do often look the other way; there's a rather high-profile community of Harry Potter fanfiction authors, for example.

The trouble with gambling on this assumption that someone won't sue is that you're already breaking the law. You're not entitled to any warnings, especially not when you're deliberately creating a derivative work of someone else's copyrighted material. See here for further explanation.