Let's go back just a few months to remind you about two stories that seem fairly unrelated.
- Story one: at the very end of last year, we wrote about the ridiculousness of CBS and Paramount suing the makers of a Star Trek fan film on the basis of that fan film actually looking like it was going to be good. The key issue, not surprisingly, was about money. Because this fan film had raised over $1 million from crowdfunding, suddenly it must somehow be illegal.
- Story two: a few months earlier, in trying to better explain to people just how crazy CAFC's ruling regarding copyrighting application programming interfaces (APIs) was, we discussed Charles Duan's excellent argument that noted that if such a ruling stood, merely using Klingon could be copyright infringement. The basic argument was that an API is a "created language." But could you imagine a situation in which the creators of such a language would claim that merely speaking it was infringement.
Well, welcome back to the present, in which Paramount and CBS's lawyers are now claiming that part of the reason why the fan film infringes
is because of its use of Klingon. As first noted by Eriq Gardner at THR, Esq., the lawyers for the fan film had responded to the original lawsuit by pointing out that nothing in the lawsuit showed any specific thing that they were infringing on. And that's a problem, because of that old idea/expression dichotomy. You're only supposed to be able to infringe by copying the actual "expression," not just the general idea
. And, thus, we get the amended complaint
, in which the lawyers for Paramount and CBS desperately scramble to try to come up with just about anything that they can claim was infringed upon. And thus, we get... Klingon. The amended complaint basically argues that anything similar to Star Trek is copyright infringement, including characters, races
, places, costumes, plot points, spaceships, logos and... language. Yes, including Klingon:
But, that's hardly all. Paramount and CBS literally claim that using any of the following terms are infringing: "beaming up," "transporters," "warp drive," "stardate" or "starfleet" or "phasers." Really.
To claim making use of words or phrases like that, which certainly remind people of Star Trek, is by itself infringing seems crazy. Ditto for claiming that merely using Klingon is somehow infringing. But, really, when you're throwing everything at the wall, you're going to throw some really stupid shit. How about this one: it's infringing because it has the same "mood and theme" and that's as a "science fiction action adventure."
Even things like the fact that the Klingon logo is similar is called out:
And there are a lot of complaints about costume similarities, starting with a "uniform with a gold shirt" with a "particular type of collar":
Or uniforms with a "cowl neck." Or, "triangular medals on uniforms." Really.
Believe it or not there's a lot more
in there. I'm just highlighting a few. And a bunch of these it's difficult to believe are actually protected by copyright. General similarities in "mood and theme" are nowhere near copyrightable. Costumes, which make up a bunch of the claims, are (as we've discussed in the past
) considered by the US Copyright Office as "useful articles" and not subject to copyright protection
Clearly, the lawyers at Paramount and CBS are trying to argue that by copying many of these non-copyrightable
elements, all together, that somehow magically makes it copyright infringement. And, you never know. Courts have been persuaded by these kinds of arguments in the past. And, of course, no one denies that this is clearly an attempt to build a "Star Trek" fan film. So it's obviously based on Star Trek. But there's a real issue about whether or not there really is infringement here, and by throwing absolutely everything into the filing, even things that are clearly not even remotely covered by copyright, it really makes Paramount/CBS look extremely desperate.