Tribbles and Threats, Tribbles and Threats

Some interesting scuttlebutt over on Sci Fi Wire regarding David Gerrold, Harlan Ellison, Star Trek, Paramount, and lawsuits.

The article implicitly brings up the question of whether a screen writer should get paid when his work is digitally sampled, as David Gerrold's Trouble with Tribbles was for an episode of DS9. Actually, almost every TV series has an occasional "canned" episode where they re-use clips of other episodes, with minimal extra contexting to pretend the episode something new. I hate those episodes, but presumably the writers of the original episodes should be getting paid some royalties.

As an IP creator, it's tempting to claim that Gerrold should get paid every time that something he made up (be it tribbles or particular now-cannon-historical events) gets re-used in derivative work. On the other hand, this work of Gerrold's was itself a derivative work from Roddenberry's and, arguably, from Heinlein's "Martian flat cats".

I would expect that, pretending that the TOS and DS9 episodes were stand-alones rather than part of series owned by the same people, that if the creators of the DS9 go-back-in-time-and-fight-tribbles episode were sued for plagiarism or copyright infringement by Gerrold, that they would lose. However, that area of law is more judge-decided than principle-based, as the Wind Done Gone (WDG) and Doctor Juice cases proved a couple of years back. The WDG case is particularly instructive and relevant, since the writer even used for the title a corruption of the title of the infringed work (Gone with the Wind) -- and used characters, the events and even important dialog points as a structure to support her novel which took place on the back side of Mitchell's story. Sound familiar?

Yep. GWTW done got sampled.

As far as the Harlan Ellison suit is concerned, there are two questions. One, what rights did Ellison sell versus retain? Two, when did Ellison become aware of infringement? Three, how long after that did he file suit? Umm, okay, that's three questions. So combine the last two into "is his lawsuit timely"? I'll discuss those in reverse order.

TIMELINESS

Tort law typically gives three years after the tort is discovered for the injured
party to file suit. Since the alleged infringement occurred over decades, and Harlan certainly kept up with the derivative work, I'm not sure that his suit can be well founded.

On the other hand, there was apparently an earlier settlement in 1982, according to this article in Deadline Hollywood, so it may be that Ellison can be fighting against a later breach. I doubt it, though, since the suit is attempting to recover damages across the whole forty years, and the wording of the lawsuit itself, filing here, includes the following wording:

15.Ellison avers that since he never received proper notice or accounting related to Paramount’s various exploitations of the City teleplay, the applicable time limitations have not yet began to run on claims for payment from those exploitations.

So, he is claiming that willful ignorance keeps the legal clock from starting. It's a ballsy claim, but I doubt that it will hold in a court of law. Some of his older infringement claims are likely to fall away if and when Ellison's paragraph 15 fails. But elsewhere in his filing he's kept his knowledge of when he learned what quite fuzzy, so I'll assume he's on his best game there. Paramount will have to prove that Ellison knew about particular infringments in order to exclude them, if he wins the basic point that they owe him anything.

In addition, it looks like Simon and Schuster recently (2006-7) was licenced to put out a 3-book Crucible series that's a clear infringement -- basically amplifying the events in the episode, focusing on each major TOS character -- and the 3-year clock won't be a problem there. Which means that there might be a presumption that Ellison will win something in the lawsuit on the merits, if he has any rights to collect on.

WHAT RIGHTS?

The bottom line question in the lawsuit is whether the definition of "publication rights" in the 1960+1966 WGA agreement is inclusive or exclusive. Does it mean just the publication of the word-for-word script, or does it cover a novelization? If it covers the novelization, does it cover derivative works of the novelization?

Any reasonable reading of "publication rights" with regard to City on the Edge of Forever would seem to include those Crucible novels. However, that's not how the WGA seems to be defining the terms - they seem to be claiming that only literally printing the screenplay is a publication right. This is the major legal issue in the case, and it's a contract law thing and an IP right law thing, not a "who's the good guy here?" question.

And once that part is decided, it may reach to deeper and more gnarly questions. Does it allow the writer to collect anything based upon the aspects of the production that were not part of his conception? For instance, the heart-shaped rock called the Guardian of Eternity was described how in Harlan Ellison's original screenplay? If I recall correctly, it was some kind of corridor of statues. So, do the royalties (if any) on Franklin Mint plates showing that harp-shaped thing go to Ellison, or to the rewrite guy, or to some forgotten DesiLu production designer?

Interesting to watch, but I'd hate to put any money on the outcome from what I know. Oh, actually I'd lay about five bucks there will be a settlement in 2010-11 with no terms disclosed. Which would put the lie to Ellison's "just doing it for my fellow writers" line.

Stay tuned.