Last year, we wrote about a somewhat speculative article
by Charles Duan from Public Knowledge, connecting the ridiculous result of the Oracle/Google fight on the copyrightability of software APIs, to the idea of trying to claim copyright in a language, with a particular focus on Klingon, the made up language from the Star Trek
universe. And, then, of course, back in March, that speculative hypothetical became much more real, when Paramount's lawsuit against a Star Trek fan film
did, in fact, argue that Klingon was covered by copyright
, and that the fan film violated that copyright.
A bunch of things have happened since then, as this mess careens towards trial, and we wanted to catch you up. First, the lawyers for the fan film, put together by Axanar Productions, challenged many of the claims made
by Paramount in its amended complaint, noting that many of the things listed as copyright infringing, clearly were not -- including the language of Klingon.
The Klingon language... itself is an idea or a system, and is not
copyrightable. As the Supreme Court held in the context of a system of bookkeeping,
although copyright protects the author’s expression of the system, it does not prevent
others from using the system. Baker v. Selden, 101 U.S. 99, 101 (1879). The mere
allegation that Defendants used the Klingon language, without any allegation that
Defendants copied Plaintiffs’ particular expression of that language, is therefore
insufficient to state a claim for copyright infringement as to any protected element.
That filing similarly challenged the idea that costumes (such as "gold shirts") or geometric shapes (like "triangular medals on uniforms") were copyrightable. Oh, and also lots of things that clearly predate the Star Trek universe, like the idea of transporters ("have existed in science fiction since 1877") and warp drive ("have existed in science fiction as early as 1945").
Paramount Pictures, not surprisingly, disagreed on all of this
, insisting that all of these things absolutely were legitimately covered by copyright. First, it argues (somewhat convincingly...) that the issue is not these individual items, but rather the entire collection of them, creating a "world" that is covered by copyright, and that the fan film is obviously creating a derivative work, which they claim infringes. But then Paramount Pictures decides to attack the claims that these individual things can't be covered by copyright anyway. On the question of copyright in Klingon, they actually argue that Axanar's argument "is absurd."
Language is part of dialogue, which represents one aspect of the Star Trek
Copyrighted Works and may be considered (at a later point) in a substantial
similarity analysis.... Defendants argue that the
Klingon language is not copyrightable because it is a useful system...
Again, this issue is not yet before the Court – and certainly is not an issue to be
addressed on a motion to dismiss.
Moreover, this argument is absurd, since a language is only useful if it can be
used to communicate with people, and there are no Klingons with whom to
communicate. The Klingon language is wholly fictitious, original, and
copyrightable, and Defendants’ incorporation of that language in their works will be
part of the Court’s eventual substantial similarity analysis. Defendants’ use of the
Klingon language in their works is simply further evidence of their infringement of
Plaintiffs’ characters, since speaking this fictitious language is an aspect of their
And then things got even more fun. A group called the Language Creation Society
, represented by Marc Randazza, sought to file an amicus curiae (friend of the court) brief, which is well worth reading
, in part because the section headings, along with a few key words, are in Klingon
. For example, there's this:
If you're wondering, the footnotes reveal the translation. The ending of the first paragraph would read as "it lacks reasons." The two words in the latter paragraph are translated as "pathetic" and "arrogant." The pronunciations are also included in the footnotes, but I'll let you explore those yourself. The full brief is worth reading as it lays out, in great detail, why Klingon cannot be covered by copyright. It goes through a bunch of legal reasons, with caselaw citations, and then also points out conceptually
just how stupid this is:
To claim copyright in a language is to claim ownership over all
possible thoughts and artistic expression that might employ that
language. If not ownership, such a claim at least provides some
support for the idea that the copyright owner could, at some point,
simply pull the plug on any future development in the language. It is
a breathtakingly vast legal assertion that encompasses particular
expression that the claimed copyright owner, by definition, cannot
even conceive of.
The filing also points out how silly the assertion above, by Paramount, that since there are no Klingons to communicate with, it's not a language and therefore is copyrightable:
First, this is a non-sequitur; a process or system need not be “useful” in
order to preclude copyright protection, and Plaintiffs provide no
authority to the contrary.
But more importantly, this is an insulting assertion. Many
humans speak Klingon. The annual qep'a' involves singing and
storytelling in Klingon. (See Exhibit 6.) People get married in Klingon.
(See Exhibit 10.) Linguist d'Armond Speers even spent three years
teaching his infant son to speak Klingon. (See Tara Bannow, “Local
company creates Klingon dictionary,” MINNESOTA DAILY (Nov. 17,
2009), attached as Exhibit 12.) Speaking and writing in Klingon is
not simply a matter of transposing words from a different language,
either; it has an unusual grammatical structure that provides a
different connotation than other languages....
And insult aside, Plaintiff’s contention is absurd. A language is
not constrained to a given ethnic or racial group. By their logic,
Ancient Greek is not “useful” because the Ancient Greeks are no
longer with us, and the language has no native speakers, despite it
being the original language of some of the seminal literary and
philosophical works of the western world. Plaintiffs’ logic would
seem to dictate that French is not “useful” if spoken by a native
Well, it probably won't surprise you to find out that Paramount Pictures and its pricey lawyers weren't too pleased about Randazza's/Language Creation Society's filing. They've filed an opposition
. They argue (perhaps correctly), that the filing comes way too late, but also claim that the issue of the copyright in Klingon is "not before the court."
In its application and amicus brief, LCS is asking the Court for an advisory
opinion on whether fictional languages are copyrightable. This is not at issue in the
motion to dismiss. At the motion to dismiss stage, the Court will determine whether
Plaintiffs have sufficiently alleged the existence of their Star Trek Copyrighted
Works and whether Plaintiffs have alleged infringement by the Defendants. The
Court has not been asked to perform a substantial similarity analysis at this stage of
the proceeding, and especially not to determine the independent copyrightability of
the Klingon language (or fictitious languages in general) outside of context of Star
Instead, they argue again that Klingon is just one piece of the puzzle that they're using to show that Axanar is an infringing work. But, of course, that makes no sense. Because they were the ones who started this off by claiming that Klingon was covered by its copyright. And if Klingon is not copyrightable, then they can't make use of it as an example of how Axanar is infringing.
Meanwhile, Axanar Productions then hit back
at Paramount Pictures in a new filing on Friday, claiming that in its opposition to the Language Creators' brief, it "raised new arguments."
First, while Plaintiffs now argue that the Klingon language is “merely one aspect of the Star Trek Copyrighted Works” and that Defendants’ use of Klingon is “further evidence of their infringement of Plaintiffs’ characters” (Dkt. 38 at 3-4), in the First Amended Complaint (“FAC”) Plaintiffs do not limit their allegations in this way. In the FAC, Plaintiffs claim ownership over “Klingons” as a race (FAC at 12) and over the appearance of Klingons (FAC at 13-14), and they claim separately to own the “Klingon language” (FAC at 32). In fact, the Klingon language is listed as a “Star Trek Copyrighted Work” according to the chart in the FAC. Id. Plaintiffs are hard-pressed to link their claim to the Klingon language to an actual character when their FAC does not identify a single specific Klingon character, let alone any character they claim Defendants have infringed through using the Klingon language.
They also point out that the question of whether or not Klingon is covered by copyright is pretty important in establishing whether or not Paramount has a legitimate claim:
Indeed, like recipes in a cookbook, while the Klingon Dictionary may be protected from wholesale copying, the individual Klingon words contained therein and expression flowing from the Klingon language system are simply not protected. This Court should decline to allow Plaintiffs to stifle expression in Klingon when this matter can be resolved now as matter of law.
And, yes, it's amazing that a copyright lawsuit has resulted in someone begging the court not to "allow Plaintiffs to stifle expression in Klingon." What a world we live in.
The Axanar filing also accuses Paramount of shifting standards when convenient:
Plaintiffs’ Opposition to the Motion claims that substantial similarity analysis is “unnecessary” here. Opp. (Dkt. 31) at 11:7-9. But now, Plaintiffs are reversing course and suddenly claiming that the individual works they alleged in the FAC are just pieces for a broader substantial similarity analysis. Plaintiffs cannot invoke the substantial similarity test only when convenient, and cannot complain about parsing out Plaintiffs’ claim to the Klingon language when their FAC does just that. FAC at 32. Further, the FAC remains unclear about (1) which episodes and films that Plaintiffs claim to own are at issue here (rendering it impossible to even begin to engage in any substantial similarity analysis), and (2) how the Court could engage in a substantial similarity analysis with respect to the Potential Fan Film when it has not yet been made.
Needless to say, there's likely much more to come on all of this, and I imagine that it will continue to be quite entertaining. That said, while the larger issue may seem silly, the underlying issues here are of extreme importance
. As in the Oracle/Google case, allowing copyright over something as simple as instructions or the concept of a language, represents a massive
expansion of copyright law in a manner that clearly stifles both innovation and expression. We should be quite worried when courts are willing to allow such absurdities.