Readers of Harlan Ellison’s webpage–and even some non-readers–are aware that Harlan is launching a legal action against Pocket Books over current and upcoming novels about Edith Keeler.
Quite a few folks have been asking me if this will have any impact on “Imzadi” which, as anyone who has read it knows, is basically an inversion of “City” and features the Guardian of Forever. Although I already suspected the answer, I called Harlan and he personally assured me that “Imzadi” will not be a part of the litigation, for two reasons: First, he’d never cause a close friend that kind of grief, and second, way back in the day when I first came up with the plot, I called him and asked permission. He gave me the okay, I wrote the book, and dedicated it to him.
In terms of the case itself, I know all the parties involved and–for all I know–I might be called for deposition because of “Imzadi.” Plus, y’know…not a lawyer. So I’m not commenting beyond saying that I certainly hope matters are settled quickly and to the satisfaction of all concerned.
PAD
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“Umm, no, the view isn’t the same as your example, because piracy on the internet and work-for-hire writers signing contracts signing away the rights to what they created in said hire are not the same.”
That’s not the issue. The issue is a copyright owner being able to withhold his property from the market in some way, and the market being able to force the owner to release his property against his will, simply because there’s a demand for the property.
The issue is a copyright owner being able to withhold his property from the market in some way, and the market being able to force the owner to release his property against his will, simply because there’s a demand for the property.
And if the courts decide Ellison is wrong, the entire basis of your version of ‘the issue’ goes completely out the window.
Of course, that’s what really should be discussed to begin with: whether or not Ellison actually has the rights to what he claims to have the rights to.
I’ll explain myself a bit further – if you asked most people what they associate Edith Keeler with, they wouldn’t be saying Harlan Ellison, they’d be saying Star Trek (well, probably they’d be saying “who?”).
If Harlan had created her as part of an Outer Limits episode, that had no effect on a wider universe, then it’d be fine by me for him to be claiming all his rights – then again, it’s quite probable that nobody would be interested in writing a novel about her.
But she doesn’t exist outside of that wider universe. And the wider universe isn’t as wide if everything in it is individually owned, prosecutable and removable on the whim of an individual creator.
If you contribute to a wider universe, you get the benefit of that wider universe in terms of publicity and access to an audience – as well as the chance to play with all the pre-existing material in that universe. It seems fair to me that anything that you leave behind in that universe is fair game for the next person to play around there to pick up and use.
The concept of ownership is fine for standalone material, but it doesn’t work very well when what you own and what other people own starts to overlap and co-mingle.
I hate to keep playing devil’s advocate here, but Bobb, you’re clouding the issue with your example of downloading songs for free. I agree with your point that the public isn’t entitled to have something for free (and believe me, as somebody who’s seen thousands of his interviews reprinted in their entirety on the Net, often without attribution I experience it myself pretty much on a daily basis) but that’s not what we’re saying here. As you explain very well with your summer house analogy, it’s all about somebody using something that doesn’t belong to them without permission or compensation. In fact, in order to follow up what you were saying about ‘public property,’ what you’re actually saying is that somebody is opening the doors to the summer house and letting anybody in. So the first part of your point doesn’t jibe with the second point. You’re arguing apples and oranges.
Nor is the issue at hand whether or not somebody is withholding his property from the market, or if he’s being forced that release that property against his will. Ellison is not withtholding the characters from ‘City,’ which is borne out by the fact that Peter David simply picked up the phone and asked, so that’s not the problem. The problem is that a publisher didn’t even give Ellison a chance to make that choice. Would he have given that permission if asked? Maybe, maybe not, but now we’ll never know.
If you contribute to a wider universe, you get the benefit of that wider universe in terms of publicity and access to an audience – as well as the chance to play with all the pre-existing material in that universe. It seems fair to me that anything that you leave behind in that universe is fair game for the next person to play around there to pick up and use.
So shouldn’t the creator at least get mentioned in any book using his characters so he can get that publicity and audience?
And if it’s a shared universe, then shouldn’t there be some sharing of income if a character you’ve contributed makes money?
Seems to me that you’re not being very consistent here–the universe is being shared only one way.
Roger, the problem I see with your idea, is that it isn’t characters that make money for a shared franchise, it’s the franchise as a whole that makes money for a franchise. Any character in the franchise is just that–in the franchise. Although, I do think that the creator of both the franchise and any individual characters does deserve credit. Just how much, though, is a problem.
“And if the courts decide Ellison is wrong, the entire basis of your version of ‘the issue’ goes completely out the window.
Of course, that’s what really should be discussed to begin with: whether or not Ellison actually has the rights to what he claims to have the rights to.”
No, it just means that whatever contract Ellison had at the time he created this material didn’t give him ownership rights. The issue still remains, as demonstrated by Simon’s post, that some in the consuming public hold for various reasons that creators should not have ownership rights over their creations.
When Marvel and DC jointly published Avengers/JLA, they created a shared universe where both sets of characters existed. Should we now hold that because this shared universe exists, Marvel is free to publish more JLA stories, and DC Avengers stories? That series is one of my favorite, and I’d love to see more done. But by enjoyment of that shared universe doesn’t override the limited copyright permission each publisher provided to have that book created. Likewise, Cerebus appeared in Spawn. Just because Dave Sim gave a one-time approval for that use doesn’t mean that McFarlane can now use Cerebus any time he wants to.
“I hate to keep playing devil’s advocate here, but Bobb, you’re clouding the issue with your example of downloading songs for free. I agree with your point that the public isn’t entitled to have something for free (and believe me, as somebody who’s seen thousands of his interviews reprinted in their entirety on the Net, often without attribution I experience it myself pretty much on a daily basis) but that’s not what we’re saying here. As you explain very well with your summer house analogy, it’s all about somebody using something that doesn’t belong to them without permission or compensation. In fact, in order to follow up what you were saying about ‘public property,’ what you’re actually saying is that somebody is opening the doors to the summer house and letting anybody in. So the first part of your point doesn’t jibe with the second point. You’re arguing apples and oranges.
Nor is the issue at hand whether or not somebody is withholding his property from the market, or if he’s being forced that release that property against his will. Ellison is not withtholding the characters from ‘City,’ which is borne out by the fact that Peter David simply picked up the phone and asked, so that’s not the problem. The problem is that a publisher didn’t even give Ellison a chance to make that choice. Would he have given that permission if asked? Maybe, maybe not, but now we’ll never know.”
It’s more than that the public isn’t entitled to use the property of others for free…it’s that the public isn’t entitled to use the property of others at all without the owner’s permission. With a house, that means any use (with exceptions for emergency shelter and such). So back to the summer home example, even if the house is left unlocked, anyone going in without permission is still tresspassing.
I’m not sure I follow your inclusion of the house as public property, other than that some in the consuming public want to treat copyrighted material as though it were a hybrid of private and public property (or some just want to treat it like public property).
Whether an owner withholds his property, or shares it, is entirely up to the owner. And they are free to change their position at will (subject to any contracts they signed). So saying that Ellison hasn’t withheld his creations is a moot point…it’s still about an owner having control of his property.
It’s more than that the public isn’t entitled to use the property of others for free…it’s that the public isn’t entitled to use the property of others at all without the owner’s permission. With a house, that means any use (with exceptions for emergency shelter and such). So back to the summer home example, even if the house is left unlocked, anyone going in without permission is still tresspassing.
Just a perhaps-helpful observation: there are fundamental differences between the very nature of physical properties (like a house, be it public or private) and intellectual properties (like a story or a copyright) which underlie the rationale (from whatever side) of treating them slightly differently. (For example, a physcial property cannot have multiple simultaneous users without each user’s experience being diminished–I can’t drive your car at the same time you drive your car-but intellectual properties don’t have the same intrinsic limitation.)
That being the case, using a physical property as an illustrative metaphor related to an intellectual property, while sometimes helpful, may eventually break down as that metaphor is continued.
But I, as the saying goes, digress…
As far as Superman’s perceived longevity when Siegel and Shuster signed over the rights, no, nobody really saw Superman as having much potential. The guys had tried marketing it as a newspaper strip and failed, and DC didn’t even feature Superman on every cover the first few issues. Nobody knew what a winner they had.
As for Ellison’s Outer Limits/Terminator suit, I find the resemblance nonexistent, but Ellison sometimes screeches “plagiarism” without much evidence. In one of his old movie-review columns, he blasted several screenwriters for “obviously” ripping off print SF, for example “The Hidden” being a blatant steal of Hal Clement’s “Needle.” While both have an alien cop hunting an alien crook, both occupying human bodies, I’ve read one and seen the other and I don’t buy it for a second (and Ellison offers no quotes, comments or arguments other than he sees a similarity)
The most annoying part of the article was that Ellison does believe that Stephen King’s “Running Man” is too close to one of Robert Sheckley’s short stories to be coincidence, but decides (after discussion with King) that King must have read the story, then regurgitated the plot without realizing it years later, because “Stephen’s too good to cheat.” Of course, he doesn’t give any of the other writers in the article the benefit of the doubt.
As to the City script, there are things I really, really like in Ellison’s version (the paraplegic Great War vet, for instance) but some changes made in the final version I liked better.
I’ll clarify what I mean by this. Dave Sim’s Cerburus has an entire unverse of his own in which he makes sense. Similarly, the Marvel Universe and the DC universe both make sense in their own separate realms, away from any co-mingled stories.
Edith Keeler doesn’t really make sense outside the Star Trek universe. If she was a pre-established character that Harlan had loaned to “Star Trek” (and ditto all the elements of “City on the Edge of Forever”), I’d be fine with it. But since she isn’t, claiming rights to her every time she’s used in “Star Trek” feels annoying.
Now, he’s perfectly legally entitled to do so. I’m just as annoyed with the way the Terry Nation estate has carried on about the Daleks (who, Terry Nation learned in a long and painful way, don’t really work outside of the Doctor Who mythos). I don’t dispute they’ve got a legal right to do so, I just think they’re annoying people for doing so.
So no, I’m not talking about whether it’s legal or illegal. I’m talking about whether it’s annoying.
Simon, I think annoyance is in the eye of the beholder. If I was Harlan Ellison and somebody posted something on his website basically saying, ‘Say Harlan, have you seen this new Star Trek novel, the first of a proposed trilogy using ‘City’ as a springboard?’ I guess I’d be pretty annoyed that my phone never rang. If I was Pocket/Paramount, I’d be annoyed that Harlan Ellison’s lawyer is probably about to send a nasty letter that has to be dealt with!
Simon, I don’t doubt that it’s annoying. It’s annoying to me when I see someone zooming around on the highway in a little sporty car that costs 3x what I paid for my car. Annoying because I can’t afford those kinds of luxuries. But I wouldn’t take away another person’s toys simply because I can’t have them, or use them.
The act of creation is pretty powerful, and it should come with certain right to control. We’re talking about a fictional character here, not the cure for cancer. Society and the world aren’t going to suffer if Ellison holds up a few book publications while this gets sorted out.
The obvious problem with putting the Daleks into Battlestar Galactica, by the by, is that the Cylons would all be dead by the end of the episode (“Four Daleks—four million Cylons—you are outnumbered!”).
“The obvious problem with putting the Daleks into Battlestar Galactica, by the by, is that the Cylons would all be dead by the end of the episode (“Four Daleks—four million Cylons—you are outnumbered!”).”
I used to be scared of the Daleks because the Doctor was scared of them. But when I thought of them in real life, they didn’t seem so scary.
Then I saw them in the latest Doctor Who, and they got scary all over again. Impressive what a little modern SFX can do with what is essentially a large can with a laser.
“Edith Keeler doesn’t really make sense outside the Star Trek universe.”
Not completely true. The character’s only exclusive Trek hook is that she was a junction point on which time turned. Outside of that, she could work in a non-Trek story or even a non-sci-fi story. She was partly based on a real person. I’m sure Ellison could tell more then a few very good stories with her set before the time of her death if he wanted to.
That’s also a weak rule to apply to here. That could be said for any number of characters that are owned by their creators. .I know a lot of people that would be annoyed if the Harry Potter character is never written again by anyone after book seven. Tough. The creator has said no and may well stick to her guns.
The nut of the matter, as Ellison pointed out himself, is money.
He started out with a blank piece of paper in the typewriter. He did the work. If he was smart enough to get himself a contract that let him retain the rights to the character then more power to him. He should be paid, or at least asked permission, for the use of his character if he owns it. He should also be given credit for them if he so desires. Same with Terry Nation and the Daleks.
Is it annoying for fans? Yes and no. We don’t get new stories with old favorites as often as we may like. But, as with a number of the later Dalek stories in Who, we also don’t get stories using old favorites that we wished hadn’t been made right after we were done watching them.
“The concept of ownership is fine for standalone material, but it doesn’t work very well when what you own and what other people own starts to overlap and co-mingle.”
It does if you play by the rules. PAD pointed out that he did so and no flag was thrown on the field. Someone must have years ago as no flag was thrown on the animated series use of The Guardian. Just be polite and play by the rules.
Well said, Jerry C. Very, very, very well said.
“The concept of ownership is fine for standalone material, but it doesn’t work very well when what you own and what other people own starts to overlap and co-mingle.”
It works great when you have a good contract that sets out everyone’s rights. And then everyone honors that contract.
The problem here probably goes something like this: Pocket books obtains a license to publish new works based on Star Trek. It may even have come with a non-exclusive list of things they could do, maybe a non-exclusive list of things they can’t do. Edith Keeler and related material is on neither list. Years go by, and an editor is chatting with an author about an idea based on City (which he had just seen on TV the night before). It sounds good, it’s not on the strictly prohibited list (which contains things like no major character deaths, can’t blow up the Enterprise, etc.), so off they go.
I don’t think it’s like they saw a restriction and went ahead anyway. Most issues like are unintentional.
who is the room right now? tell me quickly as possible
The problem here probably goes something like this: Pocket books obtains a license to publish new works based on Star Trek. It may even have come with a non-exclusive list of things they could do, maybe a non-exclusive list of things they can’t do. Edith Keeler and related material is on neither list. Years go by, and an editor is chatting with an author about an idea based on City (which he had just seen on TV the night before). It sounds good, it’s not on the strictly prohibited list (which contains things like no major character deaths, can’t blow up the Enterprise, etc.), so off they go.
I don’t think it’s like they saw a restriction and went ahead anyway. Most issues like are unintentional.
I agree that it’s likely that whatever missteps were made here could’ve arisen from ignorance (“We didn’t realizing using this character would/could/should require extra permission.”) rather than from intentional malfeasance (“Let’s screw this creator!”)
But while the scenario you outline for how the problem arose is largely sensible, I kinda doubt that a proprietor would license rights to a publisher years ago, give a few guidelines back then, and then let that publisher go on commisioning books without any further contact/approvals from the proprietor. Especially not with a property as high profile as Trek.
Equally likely to me is the idea that the publisher came up with the idea for the book, ran it past the proprietor for approval at some point (as a concept, as a manuscript, etc.), the proprietor OK’ed the project–not realizing the issues specific to this particular proposal, and the publisher continued on its way, until the overlooked problematic aspects came to light. If (and this is a big ol’ speculative if) that’s how this unfolded, then that might shed some insight on how the process broke down.
As has been said above, this is one for the courts to decide. Sure, some of us out in internet land may have some insight on how typical cases unfold, but this is an individual situation, might not be a typical case, and certainly involves arrangements we’re not privy to.
My comment about B5’s uniqueness was about the fact that JMC wrote (or is directly credited with) so much of it on his own. Nothing else. 🙂
While rare, it’s not unique. Linda Bloodworth-Thomason wrote all the episodes of the first 4 seasons of Designing women by herself, and most of the rest too. Aaron Sorkin and David E. Kelly have also been the almost-sole writer on some of their series.
// Not completely true. The character’s only exclusive Trek hook is that she was a junction point on which time turned. Outside of that, she could work in a non-Trek story or even a non-sci-fi story. She was partly based on a real person. I’m sure Ellison could tell more then a few very good stories with her set before the time of her death if he wanted to. //
And I’d be the first in line to read it if he ever decided to do such a story.
// I know a lot of people that would be annoyed if the Harry Potter character is never written again by anyone after book seven. Tough. The creator has said no and may well stick to her guns. //
And let’s hope that after she’s gone whoever inherits her estate keeps on that promise. There’s been a lot of cases of creators saying, “I don’t ever want anyone but me to work on this” only to have thier estate go back on this wishes in order to make some money.
Why do I suddenly hear a bunch of space hippies in my head chanting, “Herbert, Herbert, Herbert…”
-Rex Hondo-