The form is explicitly that defined by tolkien, with so many elements not found in the traditional forms and elements missing that are found in the traditional forms to be viewed as explicitly copied from Tolkien.
Your position is like saying that it wouldn't be any form of IP theft to use all the elements of Diablo IP including names, culture, historical features and other aspects so long as it wasn't actually in the world of Diablo... and I'm pretty sure the IP law is settled on that matter, isn't it?
The form is explicitly that defined by tolkien, with so many elements not found in the traditional forms and elements missing that are found in the traditional forms to be viewed as explicitly copied from Tolkien.
Your position is like saying that it wouldn't be any form of IP theft to use all the elements of Diablo IP including names, culture, historical features and other aspects so long as it wasn't actually in the world of Diablo... and I'm pretty sure the IP law is settled on that matter, isn't it?