Ellison is sueing Paramount over Crucible and other merchandise

[Christopher]

Reading it now. Seems to me that the relevant questions are whether granting publication rights to "serial or episodic series television film material" under the 1966 MBA only constitutes the publication of the teleplay, or whether that can be expanded to include a novelization of the teleplay, or whether it can be expanded to include an original novel incorporating elements from an episode such as characters, and whether this applies to any writer or only to freelance writers.

Wow. Sounds like he's pushing for a rather broad interpretation of "publication rights." The complaint says the contract doesn't limit the meaning of the term "to include only word-for-word replications of teleplays," and is asserting that publication rights should also apply to works that make "substantial use" of elements from such teleplays.

Personally, if I'm understanding everything correctly, I'm actually hoping that Ellison's contention that the "publication rights" term ought to be broadly interpreted to include original novels incorporating characters or elements from an episode is denied by the court, or at least is interpreted less loosely than Ellison is contending. It seems to me that if you do what Ellison wants, then that ends tie-in novels' ability to really do anything creative, because the copyright owners wouldn't actually make money off of it. A typical New Frontier novel, for instance, might owe money to Joe Menoky (Robin Lefler), the Michael Piller estate (Shelby), Ronald D. Moore (Jellico, the USS Excalibur), and Theodore Sturgeon (the pon farr concept).

If we're going to broaden the definition of publication rights, I'd prefer to see it in terms of, say, the fundamental plot of an original novel being predicated on the plot of a TV episode. So, something like Errand of Fury III or the Crucible trilogy would lead to CBS owing money to the Gene Coon estate and to Ellison, but something like New Frontier wouldn't owe money just because it uses a character.

I think that the claim in the lawsuit can more reasonably be interpreted as applying to the former case. If a book actually adapts scenes and dialogue from the episode itself, that could qualify as a new "publication" of the teleplay and fall under the rights specified in the agreement. If that were the finding, then we'd probably get no more books like Crucible or The Good That Men Do that directly (or almost directly) adapt significant portions of episodes. But applying it to original stories that use the same characters and concepts (for instance, First Frontier or Imzadi, which use the Guardian but don't depict any scenes or events from "City") would be a much broader interpretation, one that would probably be crippling to the tie-in industry. And one that I suspect would be much harder to justify as a valid interpretation of the 1966 MBA.

So I think Ellison has a better case with regard to Crucible than with regard to something like the Hallmark ornament. I mean, as Lonemagpie points out, the form of the Guardian depicted in the ornament wasn't created by Ellison; the Guardian he described would've looked entirely different. The object in the ornament was the creation of TOS's art and construction departments. The uniforms depicted in the ornament were the creation of William Ware Theiss, and the likenesses depicted in the ornament are the intellectual property of William Shatner and Leonard Nimoy. So there's nothing in the ornament that comes directly from Ellison's script. I can't see any reasonable definition of "publication rights" extending to something like that.

 

[Admiral Buzzkill]

Of course, given that in Harlan's script the Guardians were a race of 9-foot tall humanoids...

Do you know how many versions of Harlan's script there are? At least three, and that many story treatments previous to the first draft as well. He may have a version he prefers, but the final version rewritten by - well, everybody (Coon, Fontana, Roddenberry) - was based upon access to all of his drafts.

 

[Therin of Andor]

So there's nothing in the ornament that comes directly from Ellison's script. I can't see any reasonable definition of "publication rights" extending to something like that.

Isn't it a talking ornament? I have one but have never connected it, due to our different fittings here.

 

[Rat Boy]

Correct me if I'm wrong, but even though the Guardian set piece was redesigned, the lines from it were taken from one of Ellison's drafts, said lines used by the ornament.

 

[Christopher]

^Oh, I'd forgotten about the talking part.

 

[Deano2099]

And you're still missing my point. What Harlan is saying is that since 1967 things should have been done in a certain way, which they haven't been. He's trying to ensure that post-2009 they will be, and the only way that will happen is if there's a legal precedent. Whether he's right about that or not is beside the point (that's what the court will decide) - his point is that things have been done in X way up til now, when they should have been done Y.

P

See, this is the bit that I find hard to reconcile. I'll admit that I've only a very loose grasp on the whole situation but as Harlan himself said: he's owed money, it's about the money, he wants his money. Which is fair enough.

Except by his arguments, he was owed that money by Paramount or CBS or someone when, for example, Imzadi came out. Except apparently he chose not to act on that because Peter David asked him for permission first. So they're friends, yes, but it's hardly like the money he was due was coming of David's advance.

It's odd that he's going after this now. Because he's Harlan freaking Ellison for crying out loud. We're seriously expected to believe Ellison, of all people, would have known for around fifteen years or so that he was due money over the usage of something he wrote and just opted to not really bother about that until Pocket Books upset him by publishing Crucible?

Ellison not going after money he's legally due? Sound likely?

Of course, that doesn't change the legal situation one way or the other, but it certainly seems to suggest that he just got pissed off at Crucible and decide to pour over his own contracts to find some way to hit back at those involved. Doesn't make the complaint any less legally valid but certainly casts aspersions on his motives...

(And as an aside, if this did pass, retroactively, could the Roddenbury estate not then theoretically sue Ellison over the publication of the City screenplay, given it makes heavy use of characters created by him?)

 

[Christopher]

See, this is the bit that I find hard to reconcile. I'll admit that I've only a very loose grasp on the whole situation but as Harlan himself said: he's owed money, it's about the money, he wants his money. Which is fair enough.

Except by his arguments, he was owed that money by Paramount or CBS or someone when, for example, Imzadi came out. Except apparently he chose not to act on that because Peter David asked him for permission first. So they're friends, yes, but it's hardly like the money he was due was coming of David's advance.

Not necessarily. As discussed above, the complaint seems to specify works that make "substantial use" of material from his script. A reasonable reading of that language would be that it applies to works that quote from "City on the Edge" directly or retell portions of it. Interpreting it to include original stories reusing characters or elements from it would be, I think, a very broad reading of the language in the complaint.

Something like Imzadi or Time for Yesterday included the Guardian, but didn't actually retell portions of "City." That could explain why Ellison didn't act with regard to those works but did with regard to Crucible, which does retell significant portions of "City." Maybe you've hit upon evidence that clarifies Ellison's intentions here, what's covered in his claim and what isn't.

(And as an aside, if this did pass, retroactively, could the Roddenbury estate not then theoretically sue Ellison over the publication of the City screenplay, given it makes heavy use of characters created by him?)

Yet another reason to suspect that the suit is not about reusing characters and concepts, but specifically about quoting directly from the episode itself.

 

[Sci]

(And as an aside, if this did pass, retroactively, could the Roddenbury estate not then theoretically sue Ellison over the publication of the City screenplay, given it makes heavy use of characters created by him?)

I doubt it. Say what you will about Ellison, but the guy's pretty good at getting his legal ducks in a row -- his ass is probably covered there. That's just my guess, though.

 

[Jan]

(And as an aside, if this did pass, retroactively, could the Roddenbury estate not then theoretically sue Ellison over the publication of the City screenplay, given it makes heavy use of characters created by him?)

No, they couldn't. A clause in the WGA Minimum Basic Agreement known as the Separation of Rights clause gives the writer of a script control over physical copies of his script. This means that the writer can publish or sell copies as long as it's in script form. He couldn't turn it into a short story (a la the Blish books back in the day), though, without permission.

Jan

 

[SeerSGB]

Something like Imzadi or Time for Yesterday included the Guardian, but didn't actually retell portions of "City." That could explain why Ellison didn't act with regard to those works but did with regard to Crucible, which does retell significant portions of "City." Maybe you've hit upon evidence that clarifies Ellison's intentions here, what's covered in his claim and what isn't.

We also don't know what happen behind-the-scenes on Ellison's side with those projects. IRC, PD asked Harlan's permission, as for the Yesterday books we don't know if something similar was done or not. For that matter we don't know if Harlan didn't look into the issue and discovered he couldn't do anything about it.

 

[Christopher]

But "asking permission" has no bearing on the legal questions here. The point is whether he's owed money for the reuse of the concepts. If he were, then just asking permission wouldn't have been enough; he would've had to be compensated financially. If he was satisfied with being asked permission, that suggests he didn't feel entitled to financial compensation in those cases, yet he does in this case. As for your other point, if he'd looked into it then and found no legal recourse, then it makes no sense that he'd be filing a lawsuit now.

The logical conclusion is that the case of Crucible and the case of the Hallmark ornament are different in some legally substantive sense from the earlier cases such as "Yesteryear," Imzadi, Time for Yesterday, etc. And there is one clear difference there: the works addressed by the lawsuit quote directly from "City," and thus could be interpreted as "republications" of his script, while the other works do not contain any scenes or dialogue from "City" but merely reuse the Guardian in new stories. That doesn't prove it's the legally substantive difference here, but it's the one obvious difference, so it seems a reasonable conjecture.

 

[Allyn Gibson]

We also don't know what happen behind-the-scenes on Ellison's side with those projects. IRC, PD asked Harlan's permission, as for the Yesterday books we don't know if something similar was done or not.

I'd virtually guarantee that the authors of the metric ton of Strange New Worlds stories riffing on "City" didn't ask Ellison's permission, either.

 

[Stevil2001]

Oh, "Triptych" used the script of "City" pretty extensively, too, didn't it?