The Language Creation Society has filed an amicus brief challenging Paramount’s claim of copyright over the Klingon language in its lawsuit against Axanar, a fan-produced film set in the Star Trek universe. Marc Randazza, a top notch first amendment attorney who has helped out Reason on copyright issues, and Alex Shepard filed the brief yesterday.
Conlanging is the process of constructing a language, and Klingon is a popular conlang which originated with lines of dialogue and a dictionary written by Marc Okrand, the linguist who created Klingon for Star Trek III: The Search for Spock and the two movies after that.
The amicus brief is peppered with Klingon words and phrases, even quoting The Big Lebowski in Klingon, “not Qam ghu’vam” (“This will not stand, man”) in response to the idea that anyone expressing anything in Klingon would be a copyright infringer if Paramount owned the actual language. The brief mentions Eddie Dean, whose dad taught him Klingon at an early age.
“To claim copyright in a language is to claim ownership over all possible thoughts and artistic expression that might employ that language,” the attorneys argue in the amicus brief. “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.”
The Framers, the brief argues, would have an analogy—the Académie Française, which regulates the entirety of the French language.
“In effect, significant parts of French are constructed,” the attorneys argue. “The Framers would have been shocked to learn that they might be prohibited from writing and speaking in French were the Academy to register copyright in its constructions. However, that would be the eventual result, if this court commits the qaq of blessing Paramount’s claim to the intellectual property inherent in a language.”
The attorneys point to previous case law, including on constructed programming languages. In Computer Assocs. Int’l v. Alta, the court found terms in programming languages that were required to accomplish tasks in an operating system were not copyright-protected. In Zalewski v. Cicero Builder, meanwhile, the, brief points out that court found that “if an idea ‘can only be expressed in a limited number of ways,’ those means of expression ‘cannot be protected, lest one author own the idea itself.'”
“Copyright law protects the means of expressing ideas or concepts, but it does not give the copyright holder the right to exclude others from making use of the ideas or concepts themselves,” the brief argues. “Neither is one permitted to register copyright in a word.”
The brief illustrates the importance of a decision in the Axanar lawsuit that addresses the specific yet broad copyright claims made by Paramount. “No court has squarely addressed the issue of whether a constructed spoken language is entitled to copyright protection,” the brief argues.
There was, however, a trademark case. A federal circuit court affirmed the cancellation of a trademark claim for “Loglan,” the name of a constructed language tied to an institute that eventually splintered.
“While individual Klingon words may be expressive, one cannot speak Klingon without using these words,” the brief argues, rejecting comparisons to litigation between Oracle and Google over Java. “The idea of speaking Klingon thus merges with the expression of particular words, making Klingon as a language not entitled to copyright protection.”
The brief also pointed to precedent on “poker jargon” (Grosso v. Miramax), which was also found to be not copyright protected. The attorneys drew on the conclusions of the Supreme Court about copyright and basic information in the 1991 Feist Publications v. Rural Telephone Service case. “To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work,” Justice Sandra Day O’Connor wrote for the majority opinion in the 9-0 ruling. “It is the means by which copyright advances the progress of science and art.”
“But, if Paramount were able to claim the exclusive right to use or license the use of this language, an entire body of thought would be extinguished,” the brief concludes. “Hoch jaghpu’Daj HoHbogh SuvwI’ yIvup” (“Pity the warrior who kills all his enemies.”)