“A morning suit can be avoided by taking a route straight through what is known as…”
Shortly after The Dominators completed recording on the 7th June 1968, its co-authors, Mervyn Haisman and Henry Lincoln completed a deal with Walter Tuckwell Associates to market and merchandise its monsters, the Quarks, in much the same way Terry Nation had done for the Daleks several years before.
This was despite the writers’ now deteriorating relationship with the Doctor Who production office. Producer Peter Bryant and story editor Derrick Sherwin had relied heavily on Haisman and Lincoln over the preceding year, but had angered them by truncating The Dominators1, reducing it from six episodes to five, and having the script for the final instalment knocked up in house, seemingly largely by assistant script editor Terrance Dicks.
Although this move had sufficiently alienated the writers that they’d asked for the story to go out under a pseudonym, lines of communication between the pair and Doctor Who were still open, and they do seem to have been tentatively working on a third story featuring the Yeti and their master, the Great Intelligence. But all that was to change, and in short order.
On 3rd July BBC Enterprises, the corporation’s then commercial arm, informed Tuckwell that they considered the BBC to own at least “a considerable share in the property”. Meetings followed, with the writers facing off against the production office, before BBC copyright suddenly dropped the matter.
The core of the problem was that, immediately before these discussions, the Doctor Who office had themselves licensed the weekly children’s publication TV Comic to use the Quarks as enemies in its Doctor Who comic strip, and had done so without consulting Haisman and Lincoln. The two parties, the BBC and the writers, had moved independently of each other and only found out what the other was doing after the deals were done.
Subsequently, Haisman threatened to sue TV Publications, TV Comic’s corporate owner, with BBC Enterprises counter-arguing that it was too late to stop publication of the strips they had licensed. Haisman and Lincoln were offered a “without prejudice" payment by Enterprises to withdraw their objections, and they did.
With money having changed hands, the Quarks continued to appear in TV Comic until March 1969, almost seeing out the one year licence Enterprises had blithely issued. But who was right and who was wrong about, well, the rights? The ownership of many creative aspects of Doctor Who comes up surprisingly often in fan circles, and while the answer is relatively simple, it’s also perhaps counterintuitive.
In the 1960s a standard BBC writer’s contract for work on an ongoing series provided for a “separation of rights”. The freelance writer owned their own script, and anything new within it - characters, dialogue, ideas - but not any concepts the writers were instructed to include by the production office (i.e “the brief”). This included any characters and ideas dictated by the series’ format.
So Haisman and Lincoln automatically owned the concepts of the Quarks, the Dominators, the planet Dulkis and so on. But the TARDIS, the regular characters, even if it had ever come to an argument, the abstract notion of Doctor Who being a series in which both turn up on planets and get into scrapes, are part of the pre-existing format of the series.
These series format elements are not owned by a guest writer, but anything they come up themselves is. If the series or its owners go on to use it again then the guest writers are entitled to compensation in recognition of that. This “separation of rights” is why Haisman and Lincoln owned the character of Alistair Lethbridge-Stewart, and why their estates still do. They were, and are, paid a fee for every time he appeared in Doctor Who, subsequently and for every time use is made of that appearance (e.g. repeats, VHS, DVD).
The same applies to e.g. Nyssa, created by Johnny Byrne as a one-off character for The Keeper of Traken (1981) or K9, similarly invented by Bob Baker and Dave Martin for The Invisible Enemy (1977), and both subsequently taken on as regular characters because the production team liked them.
This does not mean, however, that a character or concept in Doctor Who automatically belongs to the writer who introduced them. Jo Grant, although introduced in a Robert Holmes script, Terror of the Autons (1971), was conceived by producer Barry Letts and now-promoted-to-full script editor Terrance Dicks, and Holmes was instructed to include her in the story as part of their brief to him when he was commissioned. Holmes owned the Autons - which is why he’s credited for their use in Rose (2005) and The Pandora Opens (2010) - but not Miss Grant.
Letts and Dicks were BBC staff, and as such they had signed away the rights to the creative work they did as part of their day job. Like their other creations, big hitters such as Sarah Jane Smith and the Master, Jo belongs to the BBC. The same is true of Doctor Who itself, devised slowly by a large number of people over more than a year before its debut, all of whom were BBC staff.2
If you have the Season 24 Blu-ray sets, you can see an example of the paperwork that covered this kind of briefing for yourself. The Delta and the Bannermen production file contains a piece of paper signed by its screenwriter Malcolm Kohll agreeing that all rights to the character of Ray, at that time thought of as a prospective companion, belong to the BBC as he was asked to include the character in his script by the production office. There is little ambiguity here, or in most other cases.
There is a longstanding anecdote that Terry Nation’s then agent Beryl Vertue3 deliberately put a line through an ownership clause in the writer’s contract for his first Doctor Who serial, thereby facilitating Nation’s later exploitation of his own creations. This is fantastically unlikely to be true 4, as by 1963 the separation of rights was already a standard part of a BBC freelance writers contract. It’s just, sadly, a good story. But it’s one that gives us a way into the real complication with regards to the rights to the Daleks, and how that reflects on the matter of the Quarks.
This is the matter of both creatures’ design. The design of the Daleks was done by in-house on-staff BBC designer Raymond P Cusick. As such it belonged to the BBC. However, there is an argument that Nation’s scripted description of the creatures counts as a contribution towards that design. Certainly, it would not exist in the form it does without it. Let’s quote it in full -
“Hideous machine like creatures. They are legless. Moving on a round base. They have no human features. A lens on a flexible shaft acts as an eye. Arms with mechanical grips for hands. The creatures hold strange weapons in their hands.”
As an aside, the idea of Nation “ripping off” Cusick is itself something of a misunderstanding. Nation took nothing from Cusick. He never had the opportunity to. It’s the BBC itself which took Cusick’s rights in the design, and they did so years before he drafted it, when he signed his contract confirming that any work he did as a staff designer was owned by the BBC.
There is an argument that this work for hire agreement was unfair - although it is a much harder one to make than those concerning e.g. artists or writers paid a low page rate for comics in exchange for all rights while working as freelancers. Cusick was a salaried employee with job security, paid holiday and a variety of other perks; he also had a BBC pension. That Cusick was granted an ex gratia payment by the BBC of a hundred pounds in recognition of his work in 1966 has been regarded by some as derisory. But it was a sum that, in the mid 1960s, was equal to two to three months wages for the average employee. Regardless, any quarrel Cusick had was not with Nation but with his employer. At which he remained until he retired to take that pension.5 Blaming Nation was probably just easier.
Caricaturing slightly, Nation owned the idea of the Daleks and the BBC owned Cusick’s expression of that idea. Without going into the complex details of specific deals stuck between Nation, then his estate, and the BBC subsequently, many of which aren’t public, it was roughly the case that each had a piece of intellectual property that was not properly exploitable without the cooperation of the other. So they cooperated with each other. By and large, they still do.
Such cooperation was not possible between the Bryant / Sherwin Doctor Who production office and Haisman and Lincoln. Perhaps because Bryant and Sherwin were, at least according to several people who worked closely with them, bad with detail, not least because they were rarely sober.
There’s one last thing worth noting. That Quark license cost TV Publications £10/10s a week, and the Quarks appeared in 21 issues6 of TV Comic. That “without prejudice” payment that Haisman and Lincoln accepted was £200.00. As such it could easily, and despite Enterprises’ disclaimer, be read as a tacit concession that not only had the Doctor Who office acted improperly in making use of the Quarks without the writers’ knowledge, but that also Haisman and Lincoln were owed more than 50% of any proceeds the BBC made from licensing the Quarks. That the idea was the greater part of the possession than the design. Which is, of course, why Enterprises insisted on that disclaimer in the first place.
“QUARK RIGHTS!”
The production office believed there wasn’t sufficient story to sustain two more episodes. They were probably right, but this is something that should have been noticed and rectified much earlier in the story lining and scripting process.
Although if the series has a single creator it’s then BBC Head of Drama Sydney Newman and this attribution should not be controversial. Not least because of the casual way in which others involved in that process, including originating producer Verity Lambert and early directors Waris Hussein and Richard Martin refer to him as the series’ creator. In the latter two cases up to the present day.
Later a BAFTA wining powerhouse TV producer and incidentally Steven Moffat’s future mother in law.
It is possibly a misremembering of some further negotiations that took place related to The Chase (1965). Vertue was prone to crossing out clauses, existing paperwork for multiple clients confirms that, but in this particular instance there was just no need to.
The same is true of the designer of The Dominators and the principal designer of the Quarks (along with costumier Martin Baugh and Visual Effects Designer Ron Oates).
Plus an appearance in the TV Comic Annual.