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The Klingon Copyright Case

Who owns the copyright in a language that’s invented for a fictional culture? The ongoing Star Trek fan film copyright case has brought this issue to the forefront. So it’s time to examine the question of the Klingon copyright.

Back in February 2016, I wrote about a lawsuit between Paramount Pictures, owners of Star Trek, and the producers of a fan-created film to be titled Axanar. Part of Paramount’s copyright claims related to the use of the Klingon language. A group called the Language Creation Society has now stepped into the controversy over that point by filing an amicus brief.

Need to know when copyrighted material can be used without permission? Click here to listen to my podcast episode on Fair Use.

What’s an Amicus Brief?

An amicus, or “friend of the court,” brief, is one that’s filed by a non-party to the lawsuit who has an interest in the subject matter. You’ll often see amicus briefs filed by nonprofits such as the ACLU or the NRA.

The Klingon Copyright Case

Even casual Star Trek fans know that the Klingons appeared originally in the 1960s TV series. In those early episodes, the actors either spoke English or made guttural sounds. In 1984, Paramount Pictures commissioned Marc Okrand to create a Klingon language for the movie Star Trek III: The Search for Spock. This process continued over the next few Star Trek movies. Okrand also authored The Klingon Dictionary, which was released in 1985.

The language then took on a life of its own. There are many hobbyists who have learned the language, new terms have been added, and there are examples of Star Trek fans from different cultures who communicate with each other solely in Klingon, as that’s the only language they share.

Or, to put it another way: Screen Shot 2016-04-30 at 3.17.50 PM (“We succeed together in a greater whole.”)

The LCS brief includes several such examples of Klingon, as though they were quoting a natural non-English language such as Spanish. This seems at first like a clever stunt, but it serves to underscore their point: that Klingon has become an actual language, a means of human expression, and is therefore not subject to the restrictions inherent in copyright law.

The LCS brief points out that there are now full Klingon translations of classics such as The Epic of Gilgamesh, Hamlet, and Much Ado About Nothing. The Bing search engine will perform Klingon translations. And so on.

The core of LCS’ claim rests on the fact that, pursuant to the U.S. Copyright Act, copyright does not protect “any idea, procedure, process, system, method of operation, concept, principle, or discovery.” Copyright protects only the individual expressions of those ideas. From the brief:

What is a language other than a procedure, process, or system for communication? 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.

In support, they cite a prior case in which poker jargon was held not to be subject to copyright protection.

In summary, their claim is that copyright simply cannot be used to protect a language, even if that language was invented by a professional as part of a fictional work.

The LCS brief goes on to cite the “merger doctrine.” From the Media Prof Law Blog:

The merger doctrine in copyright states that if an idea and the expression of the idea are so tied together that the idea and its expression are one – there is only one conceivable way or a drastically limited number of ways to express and embody the idea in a work – then the expression of the idea is uncopyrightable because ideas may not be copyrighted.

The LCS therefore claims that “Thoughts and ideas can only be communicated in a given language by using the vocabulary of that language.

What about the written language? The LCS brief addresses this point as well:

To the extent Plaintiffs are claiming copyright in the written Klingon language, such is also improper. The specific characters used in a language are analogous to typeface designs. Such designs are considered industrial designs and thus not entitled to copyright protection.

So: is Klingon, or a Language with a Similar Origin, Subject to Copyright Protection?

The LCS brief does note that no court has weighed in on this particular issue—meaning the Axanar court has the opportunity to definitively declare that invented languages are not subject to copyright protection. I doubt the court will go that far, but we’ll see.

The brief doesn’t mention a third possibility: that Paramount may have had the right to assert copyright claims at some point, but 30+ years of benign neglect have resulted in a loss of copyright protection. This brings up our old friend “laches,” a legal defense which requires the defending party to prove that:

  • the plaintiff unreasonably delayed in enforcing its rights; and

  • the delay caused prejudice to the defendant.

To put it another way, how do you say “you snooze, you lose” in Klingon?

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