The use of the Guardian in "Yesteryear"... Ellison's permission?

[gastrof]

I'm not sure if this belongs in "general Trek" or here. Don't THINK it belongs in the TREK XI forum...

Rumor has it (more than rumor, I guess) that when Harlan Ellison heard talk about using the Guardian in TREK XI, he got his feathers all ruffled about them using his creation "the Guardian of Forever" without his permission.

After that, there was no more talk of the Guardian being in the movie.

Now, back when TAS was being done, I don't think "Yesteryear" was written by Ellison. (Didn't Walter Koenig actually write it?)

If my memory is right, then would it have been done with or without his permission? If "without", then why would there be a problem today in using the Guardian in the movie?

 

[Lee]

^^ I don't know, but it was D.C. Fontana who wrote "Yesteryear."

 

[SonicRanger]

... If "without", then why would there be a problem today in using the Guardian in the movie?

Probably because the movie will make a lot more money that "Yesteryear" did, and Ellison wants a piece of that pie.

 

[DRMidnite]

... If "without", then why would there be a problem today in using the Guardian in the movie?

Probably because the movie will make a lot more money that "Yesteryear" did, and Ellison wants a piece of that pie.

I bet he does...LOL

 

[Christopher]

Rumor has it (more than rumor, I guess) that when Harlan Ellison heard talk about using the Guardian in TREK XI, he got his feathers all ruffled about them using his creation "the Guardian of Forever" without his permission.

After that, there was no more talk of the Guardian being in the movie.

Now, back when TAS was being done, I don't think "Yesteryear" was written by Ellison. (Didn't Walter Koenig actually write it?)

If my memory is right, then would it have been done with or without his permission? If "without", then why would there be a problem today in using the Guardian in the movie?

His permission is not required. Writing for American television is work-for-hire: anything and everything you create becomes the property of the studio. The producers of ST might have to pay Ellison a royalty if they used the Guardian in a new production (or maybe not -- I know that applies to characters, but I don't know if it goes for concepts as well, or whether the Guardian would count as a character or not). But they absolutely would not need to get his permission to use it, because it belongs to them.

Ellison's recent whining about the use of the Guardian in the Crucible novel trilogy and its possible use in the new movie is just about Ellison wanting to make noise and draw attention to himself. He's been in the business long enough to understand the concept of work-for-hire, and he hasn't objected to past uses of the Guardian in "Yesteryear" and in novels such as Yesterday's Son, Time for Yesterday, Imzadi, and First Frontier. So there's no valid reason why he should start making a fuss about it now. I guess it's just that he's been ranting and raving for forty years now about how Star Trek screwed him over (meaning "treated him exactly like any other professional writer rather than catering to his every egomanical whim"), and apparently he needed some fresh material for his rants, whether there was any factual basis to it or not.

 

[ATimson]

The producers of ST might have to pay Ellison a royalty if they used the Guardian in a new production (or maybe not -- I know that applies to characters, but I don't know if it goes for concepts as well, or whether the Guardian would count as a character or not).

IIRC, Jerome Bixby tried and failed to secure royalties for DS9's use of the Mirror Universe, so a "concept" doesn't seem to be something that engenders a royalty. The Guardian probably qualifies as a character, though.

 

[David cgc]

Lucky, then, that Ellison was complaining about the use of the "Guardians of Forever," robotic operators of a time machine, and not about the "Guardian of Forever," a self-operated time machine.

 

[Trevacious]

The producers of ST might have to pay Ellison a royalty if they used the Guardian in a new production (or maybe not -- I know that applies to characters, but I don't know if it goes for concepts as well, or whether the Guardian would count as a character or not).

Imagine it going to trial and imagine the circles they could go in once the Guardian is called to the stand...

Lawyer: Are you Character or Concept?
Guardian: I Am Both, and Neither.

 

[T'Aerwynd]

... past uses of the Guardian in "Yesteryear" and in novels such as Yesterday's Son, Time for Yesterday, Imzadi, and First Frontier.

I don't recall the Guardian being in Imzadi. I remember it in Triangle (Imzadi II) though. But it's been a looong time since I last read Imzadi.

 

[Allyn Gibson]

... past uses of the Guardian in "Yesteryear" and in novels such as Yesterday's Son, Time for Yesterday, Imzadi, and First Frontier.

I don't recall the Guardian being in Imzadi. I remember it in Triangle (Imzadi II) though. But it's been a looong time since I last read Imzadi.

Not only is the Guardian in Imzadi (and it's on the cover), but the story itself is an inverse of "City on the Edge of Forever," and Peter David dedicated to novel to Ellison. PAD, by the way, asked for Ellison's permission to use the Guardian.

Interestingly, the next TNG hardcover novel after Imzadi, The Devil's Heart, also used the Guardian, but as a minor element. (An Iconian artifact, the Devil's Heart, was the seed for another Guardian.) I do not know whether or not Carmen Carter asked for Ellison's permission.

I can guarantee that not a single Strange New Worlds writer asked Ellison about using the Guardian.

 

[Maurice]

Lucky, then, that Ellison was complaining about the use of the "Guardians of Forever," robotic operators of a time machine, and not about the "Guardian of Forever," a self-operated time machine.

And various writers on the series added to or changed aspects of the characters Roddenberry created, yet none of them could claim any ownership of those characters. The Trek staff might have changed aspects of Ellison's creation, but in the eyes of the Writer's Guild it remains Ellison's creation and he's owed some compensation for each use of it, at least insofar as their influence extends (film and television).

And we can talk "work for hire" til we're green in the face, but without seeing the exact contract Ellison signed, there's no way of knowing for sure if he held onto any rights not in a typical TV contract of the era.

Finally, the Guardians of Forever are not described as robotic in the script, just tall and terribly terribly aged. The time vortex is just there, and they guard it.

 

[Christopher]

And we can talk "work for hire" til we're green in the face, but without seeing the exact contract Ellison signed, there's no way of knowing for sure if he held onto any rights not in a typical TV contract of the era.

The burden of proof lies on the person making an extraordinary claim, not on the people challenging it. There's no way of knowing for sure that there aren't microscopic alien spy cameras hidden in my hair, but I'd be foolish to assume there were without hard evidence. Unless Ellison can present solid evidence of his unrealistic claim, there's no reason to take it seriously.

And his own actions -- or rather lack thereof -- over the past four decades are evidence that he doesn't have any such rights. He didn't object to "Yesteryear" or to the many uses of the Guardian in Pocket novels and various comic books. If he'd had any legal claim to the concept, any power to grant or deny permission, then surely he would've exercised it many times by now. Instead, he made no objection for decades, and now suddenly in the past couple of years he's claiming to have a right that no TV writer in Hollywood could reasonably be expected to have and that he's never attempted to assert before. That just doesn't pass the smell test.

 

[T'Aerwynd]

Not only is the Guardian in Imzadi (and it's on the cover)

Yeah, I knew it was on the cover. But I honestly can't think of where in Imzadi there's a reference to the Guardian. Damn, I need to hit up EBay or something and get hold of that book!

 

[Christopher]

Not only is the Guardian in Imzadi (and it's on the cover)

Yeah, I knew it was on the cover. But I honestly can't think of where in Imzadi there's a reference to the Guardian.

Well, the entire first and third chapters are set on the Guardian planet, for starters. Also chapters 36 and 44, and it drives much of the discussion and action in ch. 34-35 as well. It plays a key role in the future portions of the novel and thus in the story overall.

 

[T'Aerwynd]

It's ok! I've got a bid in for Imzadi on EBay!

 

[Admiral Buzzkill]

Writing for American television is work-for-hire: anything and everything you create becomes the property of the studio..

Well, that's certainly an oversimplification.

I'm sure that Ellison has some basis for his claims. James Cameron, among others, sure discovered that messing with Ellison's property was not something he could do with impunity.

 

[Christopher]

Writing for American television is work-for-hire: anything and everything you create becomes the property of the studio..

Well, that's certainly an oversimplification.

No, it isn't. I write licensed Star Trek fiction in prose, and I've discussed this very issue with colleagues who've written for television. It's right there in the standard contract that anything you write becomes the studio's property. You give up any and all right to control what happens to it.

I'm sure that Ellison has some basis for his claims. James Cameron, among others, sure discovered that messing with Ellison's property was not something he could do with impunity.

That's not actually true. Rather, the Terminator production company gave Ellison an acknowledgment and cash settlement to prevent him from suing them for plagiarism. That doesn't mean he would've won such a plagiarism suit. Even successfully fighting off a nuisance lawsuit would cost a corporation a whole lot of money, and in this case, a lot of bad publicity as well, since Ellison is a legendary loudmouth. Sometimes it's cheaper just to pay someone off to keep them from suing and costing you even more in legal expenses, even if you'd be likely to win in court.

Besides, it's not an analogous situation, because the works that The Terminator was allegedly inspired by were written by Ellison for somebody else, not for the company that made The Terminator. In this case, he wrote "City on the Edge of Forever" under contract to Desilu, which then was absorbed by Paramount, which is now CBS Paramount Television. That contract, almost certainly, would have stated that the production company became the owner of the script's contents and was free to reuse them as it saw fit. Since it's the same company (or rather the company that swallowed up that company and inherited its contractual rights), it's not comparable to the Terminator situation, which involved separate companies.

 

[chardman]

Sorry Christopher, but things were a bit different when Desilu ran Trek. Desilu was created by Lucy Ball and Desi Arnez because they were sick of giving up their creative rights to others. Desilu specialized in giving creative people greater rights to their own work than other studios. They regularly offered writers deals that were incredible, going so far as to grant total Separation Rights years before they were mandated by WGA. And not all script work was work-for-hire in those days. Plenty of freelancers in those days, and situations that made it possible for a writer to adapt and resell the very same story to multiple productions. The deals that Studios insist on these days, which you and your friends are familiar with, are demanded specifically to avoid the kind of loopholes that Ellison enjoys re: COTEOF.

 

[Duncan MacLeod]

So basically by being an asshole about it Ellison virtually garunteed that no production company would ever do it again. Thereby fucking over every writer who came after him.

What a sweetheart of a guy.

 

[Christopher]

Sorry Christopher, but things were a bit different when Desilu ran Trek. Desilu was created by Lucy Ball and Desi Arnez because they were sick of giving up their creative rights to others. Desilu specialized in giving creative people greater rights to their own work than other studios. They regularly offered writers deals that were incredible, going so far as to grant total Separation Rights years before they were mandated by WGA. And not all script work was work-for-hire in those days. Plenty of freelancers in those days, and situations that made it possible for a writer to adapt and resell the very same story to multiple productions. The deals that Studios insist on these days, which you and your friends are familiar with, are demanded specifically to avoid the kind of loopholes that Ellison enjoys re: COTEOF.

Okay, then why did Ellison never exercise these alleged special rights when the Guardian was used in "Yesteryear," or in any of a dozen novels and seven or more short stories prior to the Crucible trilogy? Given Ellison's longstanding grudge against Star Trek, I can't believe he would've gone nearly 40 years without pursuing legal action against such works if he had any legal basis for doing so.