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When Paramount and CBS closed out 2015 with a lawsuit over a crowdfunded Star Trek fan film titled Axanar, the two studios probably had no idea that they were about to get mired in an esoteric legal debate about the protectability of the Klingon language. But that’s exactly what’s happened, and with the language of digital coding hanging in the background, a California federal judge’s forthcoming decision could hold significance — so large, in fact, that this otherwise run-of-the-mill copyright action has now drawn an amicus brief from a language society that quotes a Klingon proverb translated as “we succeed together in a greater whole.”
To review, after the Star Trek rights holders filed their complaint, the defendant production company demanded particulars of the franchise’s copyrighted elements. In response, Paramount and CBS listed many, but what drew most attention was claimed entitlement to the Klingon language. The defendant then reached back to a 19th century Supreme Court opinion for the proposition that Klingon is not copyrightable as a useful system.
On April 11, that drew an entertaining response from the flummoxed plaintiffs.
“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,” stated a plaintiffs’ brief authored by David Grossman at Loeb & Loeb. “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 characters.”
Before U.S. District Judge R. Gary Klausner gets a chance to rule on a motion to dismiss, he’s now being asked permission to review a friend-of-the-court brief from the Language Creation Society.
The brief, authored by Marc Randazza, begins by noting that the Klingon language was invented in 1984 by Marc Okrand for Star Trek III: The Search for Spock.
“Before that, when actors played Klingons in Star Trek television programs or movies, they simply uttered guttural sounds or spoke in English (Federation Standard),” writes Randazza. “Given that Paramount Pictures commissioned the creation of some of the language, it is understandable that Paramount might feel some sense of ownership over the creation. But, feeling ownership and having ownership are not the same thing. The language has taken on a life of its own. Thousands of people began studying it, building upon it, and using it to communicate among themselves.”
The shortcomings of The Hollywood Reporter‘s font system precludes quoting some of the more entertaining moments of this brief (read in full below), but here’s a look at how Paramount is being blasted as “arrogant” and “pathetic” in Klingon:
Now, with 250,000 copies of a Klingon dictionary said to have been sold, Klingon language certification programs being offered, the Microsoft search engine Bing presenting English-to-Klingon translations, one Swedish couple performing their marriage vows in Klingon, foreign governments providing official statements in Klingon and so on, the Language Creation Society is holding up Klingon as having freed the “bounds of its textual chains.”
Ultimately, the amicus brief comes back to the theory that Klingon is not copyrightable.
“What is a language other than a procedure, process, or system for communication?” asks the society. “What is a language’s vocabulary but a collection of words? The vocabulary and grammar rules of a language provide instructions for a speaker to articulate thoughts and ideas. One cannot disregard grammatical rules and still be intelligible, and creating one’s own vocabulary only worked well for the Bard. Vocabulary and grammar are no more protectable than the bookkeeping system in Baker v. Selden, 101 U.S. 99, 101 (1879).”
According to the amicus brief — which also nods to the framers of the U.S. Constitution and to Sesame Street theme-song lyrics — no court has ever addressed the issue of whether a constructed spoken language is entitled to copyright protection. Whether or not the Star Trek fan-film case provides that very opportunity is now up to the judge. He could sidestep the legal geekery by agreeing with Paramount that defendants and those interested are making too much of this, that use of Klingon is merely evidence of some larger infringement. Or he could give Klingon speakers everywhere “qapla“!
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