David Gerrold penned book gets 9th Circuited

[hbquikcomjamesl]

It's infringement regardless of whether you attempt to make money off it or not.

Quite true. I could be giving away that hypothetical unauthorized facsimile edition of Nor Crystal Tears, at considerable expense to myself, and it would still be infringement, because it would still at least potentially impair ADF's (and Ballantine's) ability to profit from the opus.

Speaking of ADF, I will note that he has written two of the four most compelling and memorable opening lines I know of: "The Flinx was an ethical thief, in that he stole only from the crooked." (The Tar-Aiym Krang) and "It's hard to be a larva." (Nor Crystal Tears) rank right up there with "In a hole in the ground lived a Hobbit." (The Hobbit, Tolkien) and "It was the best of times, it was the worst of times." (A Tale of Two Cities, Dickens). Which is one more reason why he would be the very last author I would ever want to infringe or plagiarize.

Getting back to the original subject of the thread, I would have thought Gerrold would have known better.

 

[Christopher]

So was George Lucas putting his own byline on ADF's anonymously ghostwritten novelization of the first SW movie plagiarism? ADF doesn't seem to think so: he'd simply been hired to turn Lucas's screenplay into prose.

As is often the case, what makes something a crime (or a tort) is not the nature of the deed, but the fact that it's done without consent. Buying someone's merchandise is okay, stealing it is not. Being invited into someone's home is okay, breaking into it is not. And so on. Hiring someone up front to write a book under your name is clearly consensual and thus clearly not plagiarism. It's just ghostwriting, a standard practice in publishing. You're not taking credit for their work, you're paying them to give you the credit willingly.

What about Edward Stratemeyer passing story outlines to young writers, hungry enough to anonymously ghostwrite for a paycheck, and then publishing the resulting children's novels under such pseudonyms as Laura Lee Hope, Franklin W. Dixon, and Carolyn Keene? That gets a bit stickier, because for many years, most people weren't aware that the purported authors of those books were themselves fictional characters, and it wasn't until James Keeline published a web site on the pseudonymous works of the Stratemeyer Syndicate that the identities of the ghostwriters became readily available to the general public.

That's not "sticky" at all. Hiring and paying a writer is a private business agreement between two parties. A business arrangement doesn't have to be public knowledge to be ethical. Many business arrangements are private and confidential. The only thing that matters is the consent of the parties directly involved, whether the terms of the contract are met and everyone is paid what they're entitled to for their work.

Most of your examples are about anonymity, but that's not what defines plagiarism. The root of the word "plagiarism" is the Latin word for kidnapping, which comes in turn from the word for a hunting snare or net trap. So the very name of the act specifies that it is non-consensual and predatory.

 

[hbquikcomjamesl]

Quite. I was thinking of bringing up the etymology of plagiarism myself.

And while ghostwriting is certainly an accepted practice in a commercial publishing context, in an academic context, where fraud, rather than consent, is the operative issue, it is considered the very worst kind of plagiarism.

 

[Christopher]

And while ghostwriting is certainly an accepted practice in a commercial publishing context, in an academic context, where fraud, rather than consent, is the operative issue, it is considered the very worst kind of plagiarism.

Well, of course. Unreality is okay in entertainment, but not in scholarship.

 

[Harvey]

I've read the book cover to cover, and yes. It's an extremely clever mash-up/parody of Trek and Seuss, and it deserves to be seen by a wider audience.

It's certainly a mash-up of the two properties, I don't think that's in dispute. But what I'm really curious about is whether it qualifies as a parody — and of Star Trek, specifically (a matter that's not part of this case).

The legal definition that's cited in the opinion says that to be a parody, the work must "use some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works" (page 13). And I don't see how the book qualifies as a parody under that definition. To be clear, I've only seen the pages that have been publicly released, not the whole book, so I may not be seeing the whole picture.

The artwork faithfully recreates everything from the uniforms, the transporter console, the tricorder, the Enterprise, Mr. Spock (mirror and prime versions), the Gorn, etc. There's no commentary there that I can see. And although Gerrold's use of Seussian meter is amusing, lines like the following don't seem to present any actual commentary on Trek:

You can get out of trouble, any that's knotty,
because in a pinch you'll be beamed out by Scotty.
(Assuming, of course, you're in transporter range.
These are the physics, they canna' be changed.)
​

If Oh, the Places You'll Boldly Go! qualifies as parody, couldn't licensed works like Darth Vader and son or Star Trek Cats be published by their authors without a license from Lucasfilm or CBS?

 

[J.T.B.]

(Full disclosure: I'm friendly with Ty and Glenn, and I've met & had nice conversations with Gerrold, and none of them deserve this lawsuit. It's just a nuisance suit because the Seuss estate doesn't want it published.)

Do you know if they consulted an IP lawyer before publishing?

 

[hbquikcomjamesl]

The ghostwriting examples I cited under "is this plagiarism" were NOT plagiarism, most of them very clearly not plagiarism, and I explained why. Mr. Bennett was correct in pointing out that even the Stratemeyer example, which I described as "a bit stickier" was not plagiarism because it was consensual. And yet anonymous ghosting under a "house pseudonym," with a gag rule imposed, comes somewhat closer than the others (and only anonymous ghosting for a living nominal author, with little or no input from that nominal author, would be any closer), because the readers are kept in the dark about the true authorship, and because the entity hiring the ghostwriter might be taking advantage of his or her inexperience, and/or depriving him or her of an opportunity to build a reputation.

I was gratified to learn that this was not the case with Howard Garis, who had a prolific career outside of Stratemeyer ghosting.

Back to the original topic, I would say that if those involved in Boldly Go did consult an IP lawyer, and that lawyer advised them to proceed, then he's not worth his fees.

 

[Christopher]

And yet anonymous ghosting under a "house pseudonym," with a gag rule imposed, comes somewhat closer than the others (and only anonymous ghosting for a living nominal author, with little or no input from that nominal author, would be any closer), because the readers are kept in the dark about the true authorship, and because the entity hiring the ghostwriter might be taking advantage of his or her inexperience, and/or depriving him or her of an opportunity to build a reputation.

Hmm, you have a point. It's like Bob Kane taking all the credit for Batman when Bill Finger, Jerry Robinson, etc. did nearly all the work. He may have paid them for their initial work, but he denied them the opportunity to earn royalties for the ongoing use of their creations.

 

[hbquikcomjamesl]

Or like an aging Great Bird of the Galaxy taking credit for all he did, AND all that Justman, Coon, Solow, (who am I forgetting, who was the subject of a recent thread?) and others did.

Except that (as I've been informed) what Bob Kane did was orders of magnitude worse than the worst credit-hogging Roddenberry ever did. Which kind of puts the Bird's actions into perspective.

 

[Christopher]

Or like an aging Great Bird of the Galaxy taking credit for all he did, AND all that Justman, Coon, Solow, (who am I forgetting, who was the subject of a recent thread?) and others did.

Not the same thing at all, because they did get screen credit for their work, which means they and their estates got payment for it as they deserved. What Kane did to Finger wasn't just about reputation or publicity or the historical record, it was about depriving him of the means to make a living. Kane negotiated his contract in such a way that permanently deprived Finger of credit for creating Batman, and as a result, Finger died penniless while Kane raked in millions in royalties for what was mostly Finger's creation.

 

[hbquikcomjamesl]

Touché. Previous post amended. Then again, most of what little I know about Batman has more to do with William Dozier than with Bob Kane.