QaD tlhIngan pong yab bang chut? Is Klingon protected by copyright law?

Alec Peters may be the world’s biggest Star Trek fan. Sure, plenty of Trekkies (or Trekkers, if you prefer) have written fan fiction based on the TV series and movies. A number of fans have even created fan videos. But how many of them have raised more than a million dollars to produce a mockumentary and eventually a professional feature film based on their fan fiction?

Unfortunately for Peters, in December 2015, Paramount and CBS filed a copyright infringement suit seeking damages for the existing infringements and an injunction stopping the ongoing production of the full length Star Trek: Axanar movie. An amended version of the complaint details the characters, costumes, settings, production designs and other similarities between the two Axanar films and the official Star Trek productions.

Peters’ defence, as outlined in a motion to dismiss, is that the Star Trek universe as a whole is not subject to copyright, and that individual elements that they have copied are “too general for copyright protection, are scenes a faire, or are commonly used, unoriginal ideas.”

Among the more legally interesting points at issue is whether the Klingon Language, constructed for the Star Trek universe, is a copyrightable work. The defence relies on Baker v. Selden, the classic business forms case that developed the principle that copyright protection does not subsist in useful systems. Peters argues that a language—a system for expressing ideas, not the expression of an idea—is not the proper subject matter for copyright protection.

CBS and Paramount characterize that argument as absurd. They counter that Klingon cannot be a system for communication without actual Klingons to communicate with. Further, as a fictitious language, they argue Klingon can be original and copyrightable.

The Klingon issue has attracted outside interest, including an amicus brief by the Language Creation Society (LCS) which is itself partially written in Klingon. LCS’s brief outlines the history of the language. Marc Okrand was originally contracted to create Klingon dialogue for Star Trek III. He later published a more complete and functional version of the language in a Klingon Dictionary and two other books on the language. Outside official channels, Klingon has taken on a significant life of its own, with linguists writing academic papers about the language, fans doing translations of Shakespearian plays into Klingon, and even a wedding being conducted in Klingon.

The LCS argues that CBS and Paramount could own copyright in specific Klingon dialogue used in their productions or in Okrand’s books explaining the language, but they cannot claim copyright over the language as a whole. They also cite Zalewski v. Cicero Builder in favour of applying the merger doctrine, the principle that if there is only one or a small number of ways to express an idea, the idea and expression merge and the expression cannot be protected by copyright. The LCS argues the merger doctrine applies because the only way to express ideas in the Klingon language is to use the Klingon language to express them. The LCS also contends that protecting a language would run counter to the Constitutional mandate for copyright in American law, which is to promote the progress of useful arts. By granting copyright protection over Klingon, the LCS claims “an entire body of thought would be extinguished.”

Should anyone other than a few die-hard Trekkies care whether Klingon is protectable?

Klingon is not the only complete fictional language. Dothraki, from the Song of Ice and Fire books, was expanded from the words on George R.R. Martin’s pages into a more complete language. J.R.R. Tolkien, an accomplished linguist, created a wide variety of languages for the various races that inhabited his books. A copyright ruling on the protectability of Klingon would therefore also impact everyone who creates, studies or uses those languages.

There are also active communities of “conlangers”: people who construct their own languages out of interest in linguistics or to support their own literary works. A decision on Klingon would affect the scope of protection over conlangers’ creations.

Most importantly, the decision could apply to protectability of another class of (currently hotly contested) artificially constructed languages: computer programming languages. The US Federal Court of Appeals decision in Oracle v. Google, which found that the Java programming language’s APIs were protectable, has been described as dangerous and scary for its potential impact on technological innovation. The US Supreme Court denied certiorari on Google’s appeal, but a finding that constructed languages like Klingon are not protectable expression could help create more conflicting precedents, forcing SCOTUS to reconsider.

 

Jacquilynne Schlesier is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

6 Comments
  1. Great post, Jacquilynne! Thanks for the informative and interesting read.

    I have strong feelings on this case because I am a big proponent of fan fiction, and these fans have had to raise over a million dollars to see their dream project come to life. Accordingly, it is just disheartening to force these fans to face an expensive lawsuit just to keep their dream alive. According to this article by Professor D’Agostino, the American Intellectual Property Law Association estimated the “average cost of defending a copyright case is just under one million U.S. dollars”, and she cited an article published in 2006 for that figure (URL: http://iposgoode.ca/wp-content/uploads/2008/11/g-dagostino-healing-fair-dealing-mcgill-lj-2008.pdf ). With inflation, the fans will spend more to defend the litigation than to make the movie.

    With respect to the merger doctrine, I remain skeptical of its usefulness and agree with you that a use of it to declare Klingon unprotectable is likely to just create conflicting precedents with Oracle and muddy the water. Although I cannot find a link to this online, Allen Rosen said it best in “Reconsidering the Idea/Expression Dichotomy” when he essentially suggested the merger doctrine is an infinitely malleable device and a conclusionary principle that the courts will work backwards from to achieve the balance between the rights of the creators and public they deem the most desirable. The case where this appears most obvious is this one: http://openjurist.org/446/f2d/738/herbert-rosenthal-jewelry-corp-v-kalpakian …if you say it is just a “bee pin”, then it sounds fairly abstract and there is no merger problem…or you say it is a “bee pin with jewels in a particular arrangement”, then it sounds more specific and protecting the expression = protecting the idea which creates a monopoly against the public interest and then you’ve got a merger problem…whereas the key to that case was the plaintiff’s testimony/counsel’s remarks where they hinted at a monopoly by saying the following which the court then worked backwards from (IMHO):
    –> “Plaintiff’s counsel, repeatedly pressed by the district judge, was unable to suggest how jewels might be placed on the back of a pin in the shape of a bee without infringing plaintiff’s copyright. He eventually conceded, “not being a jeweler, I can’t conceive of how he might rearrange the design so it is dissimilar.”

    Rather, as Jacquilynne’s torrentfreak.com article in the above comment suggests, I think this will come down to a “fair use” argument, despite what is decided about the copyrightability of the Klingon language. Even in Oracle, from what I have briefly read, the second trial at the District Court led to the jury concluding Google/Android’s actions were fair use after the 37 Java APIs’ “structure, sequence and organization” were found to be copyrightable by the appellate court.

    However, despite my favouring of fan fiction and remix culture, it makes sense to take a moment to consider what George R.R. Martin has to say on the subject (referenced in the third-to-last paragraph above):
    –> “Myself, I think the writers who allow fan fiction are making a mistake. I am not saying here that the people who write fan fiction are evil or immoral or untrustworthy. The vast majority of them are honest and sincere and passionate about whatever work they chose to base their fictions on, and have only the best of intentions for the original author. But (1) there are always a few, in any group, who are perhaps less wonderful, and (2) this door, once opened, can be very difficult to close again.” (URL: http://copyright.nova.edu/fan-fiction/ )

    I am going to split this comment up into two separate replies because I am having some technical difficulties when trying to post it (perhaps because of length?)

  2. (continued from previous post):

    Though I would prefer Mr. Martin was more like J.K. Rowling and was “flattered” by others wanting to write about her characters, it makes sense that you avoid wanting to set a precedent where fan fiction creators could then veer off into creating pornography with said characters in the future. After all, stuff like Harry Potter is meant to be for kids. To be honest, I still remember coming across some ‘Adult’ Harry Potter fan fiction when I was younger that even thinking about now still weirds me out, but I digress lol.

    To get back to Fair Use, the four factors are 1) purpose and character of the use, 2) nature of the copyrighted work, 3) amount and substantiality taken, and 4) effect of the use upon the potential market.

    With respect to #2, as Professor D’Agostino’s above-linked article states on pg. 347…”[i]f there is substantial creativity, this tends to
    favour the owner”. While #2 will undoubtedly favour Paramount/CBS, I feel as if #3 could go either way. On the one hand, the taking is substantial – characters, costumes, settings, production designs. On the other hand, the actual “Battle of Axanar” (which forms the basis of the fan movie and its title) is mentioned in only one episode of the original Star Trek series in a short conversation between Captains Kirk and Garth (URL: http://www.maw-law.com/copyright/axanar-movie-and-fair-use/ ). In any event, #3 as a factor is referred to by Professor D’Agostino in the above link: “as in Canada and the United Kingdom, this factor appears to be the least significant in the United States” (pg. 348).

    #1 and #4 are interesting, however, especially since the last factor is supposed to be the most important. The fan movie is being made for non-commercial purposes (goes to #1 – character of the use), and I cannot see it necessarily having a detrimental effect on the movies made by J.J. Abrams and Justin Lin as it probably will not even be shown in movie theaters. It is also telling that in the torrentfreak.com article, linked in the above comment, that the e-mail from the Plaintiff’s lawyer notes a refusal to produce communications with those 2 directors who have previously said that it seems ridiculous to sue the fans and treat them in this way. I think it could very well effect the market prong of the fair use analysis, since fan fiction really does not operate in the same market niche as official fiction. Then again, such fiction is usually written, and a fan movie could conceivably swing the market analysis in a different direction. I guess it remains to be determined.

    Anyways, thanks again for the read and giving me something interesting to think about today. It was fun to try to recall some of the stuff I learned in Copyright class at Osgoode. Cheers.

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