There has been a disturbance in the Force, have you felt it? Wait, wrong franchise. To Boldly Go Where No Copyright Suit Has Gone Before! Yes, Qapla’ !
Occasionally there are cases that seem to be tailor-made for legal geeks: Naruto v Slater; Lucasfilm v Ainsworth; DC Comics v Towle. Now we are witnessing one such case in Paramount v Axanar, which features the owners of the Star Trek franchise against the makers of a crowd-funded fan film called Axanar (watch thePrelude to Axanar short documentary).
There is a long line of fan fiction based on the Star Trek, including several fan-made films, fan art, and thousands of written stories (yes, this includes a long tradition of slash fiction). For the most part Paramount has been content to allow most of these expressions to go ahead, even if they are infringing copyright. One of the first rules of maintaining a profitable science fiction franchise is not to alienate your core fan-base, and this means allowing them to creatively interact with your stories. However, the Axanar project is an entirely different proposition, we are not talking about a few fans dressed as Starfleet officers filming on their garage, this is a $1.1 million USD behemoth that includes several veteran actors (including Richard Hatch of BSG fame), and some decent special effects. The project is big enough that it crosses the border of what a copyright owner will consider acceptable, and enters the realm of becoming a commercial competitor.
So Paramount sued Axanar productions for copyright infringement. The complaint describes several aspects that are “substantially similar” between Axanar and Star Trek, including several characters, but also story elements such as races, starship names, uniforms, prosthetics, ship designs and back story. An amended complaint provides further details of the many infringing elements in Axanar, which include pictures and quotes of the many similarities between both properties. Most of these elements are clearly protected by copyright, and to me it is quite evident that Axanar infringes Paramount’s copyright in several ways. While I tend to hold favourable views of fan fiction, the scale of the Axanar project makes it difficult to defend as fair use, and if the case is decided only on these elements, I would expect that Paramount to win comfortably.
But one part of the complaint has raised a lot of eyebrows (and not just in a Vulcan way). The initial complaint reads [highlight mine]:
“Plaintiffs own the exclusive right to develop, create, and/or produce motion pictures and television shows based on the Star Trek Copyrighted Works, including but not limited to the characters, themes, plots, dialogue, settings, sequences, situations, and incidents therein, and also the props, character makeup, costumes, sets, fictional language, events, and fictional history. Plaintiffs are entitled to all of the protections and remedies for the Star Trek Copyrighted Works accorded to a copyright owner.”
Most of the above are indeed protected by copyright, but are fictional languages protected as well? Even in the amended complaint, Klingon language is included as one of the infringing details, but other than explaining the origin of the language, Paramount does not explain how the language is protected by copyright.
This is a very interesting legal question, and one that may arise again in the future with the growth in fictional languages such as Dothraki, Valyrian, and Na’vi. Tolkien is evidently the father of fictitious languages, as he invented several Elvish runes and rules for his works, including Qenya, Sindarin and the Black Speech, but these languages have never been subject to copyright enforcement. The question is then whether Klingon is protected by copyright. This is explored in a fantastic amicus brief favouring the defendants filed on behalf of the Language Creation Society by attorneys Marc Randazza and Alex Shepard. The brief is a work of art, filled with Klingon language history and references.
The brief describes the history of the Klingon language, which was created for Paramount in 1984 by Marc Okrand to be shown in the film Star Trek III: The Search for Spock; before that, actors just made random guttural noises. While Okrand created the language, the language really took life when it was adopted by fans, who started learning it, improving it, and even using it as a second language. This is in accordance to the ethos of the Klingon culture, which values communal enhancement in “wa’ Dol nIvDaq matay’DI’ maQap” (“we succeed together as a whole”). In fact, there is no word in Klingon for copyright, or for intellectual property. The brief expands on the rich history of the language and the extent of the fan input into it. The amicus brief then goes on to propose why languages are not protected by copyright:
“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. 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). Plaintiffs are free to register copyright any particular expression that they create using the language, such as the Klingon Dictionary or the dialogue of a particular Star Trek episode, but they cannot claim ownership of the building blocks of the language.”
Moreover, a language is akin to a computer language, and they claim that “Phrases in a constructed language, like Klingon, are the functional equivalent of computer language instructions.” Such functional elements are not worthy of copyright protection. The brief concludes with the assertion that no court in the United States has been asked to determine whether a language is subject to copyright protection, and they call on the judge to “declare that there is no basis in either law or policy to allow copyright in a spoken language.”
I completely agree with the legal analysis presented by the Language Creation Society and its attorneys. Interestingly, US courts could learn from European legislation and case law in this area. We have had several decisions that look at computer languages, and if we equate a computer language with a spoken language, then there are strong authority on which to dismiss claims that Klingon can be protected by copyright. Firstly, recital 11 of the Software Directive (2009/24/EC) says that “to the extent that logic, algorithms and programming languages comprise ideas and principles, those ideas and principles are not protected under this Directive.”
Case law is similarly clear. The first case is Navitaire v Easyjet, in which Pomfrey J declares that “individual commands […] are a computer language, not a program, and they should not be entitled to copyright.” Furthermore, he says that “There is a respectable case for saying that copyright is not, in general, concerned with functional effects”. Language has a functional element, that of allowing communication, and therefore it should not be protected by copyright. In the landmark case of SAS Institute v World Programming Ltd, Arnold J agrees strongly that computer languages are not protected by copyright, even if there is some argument as to what actually constitutes a computer language. The case was referred to the Court of Justice of the European Union (C‑406/10), which similarly ruled that computer languages are functional and therefore not protected by copyright. The Court says:
“On the basis of those considerations, it must be stated that, with regard to the elements of a computer program which are the subject of Questions 1 to 5, neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program for the purposes of Article 1(2) of Directive 91/250.”
This is consistent with earlier decisions that declared source code can be protected in different embodiment of a computer language (see Bezpečnostní softwarová asociace C‑393/09).
If the case was only about the Klingon language, I would expect the defendants to win easily. But as it has been said earlier, Paramount has a much stronger copyright case regarding the other elements infringed in Axanar, particularly characters, races, costumes and ships. The best result that we can expect is that even if Axanar loses on most of the copyright infringement charges, we may get a declaration from the judge regarding the copyright status of the Klingon language.
On an interesting side note, I have been engaged in a Twitter conversation about what is the Klingon term for copyright. I initially suggested “ghItlhvam lugh” (image right) because there is no word for copy, but this would be more consistent with publicity and personality rights. The amicus brief uses the term “yab bang chut” (mind property law), but it does not sound right. I toyed with “chenmoHwI’ lugh” (creator right), but Twitter user qurgh ‘aj, a proper Klingon speaker and Klingon Language Institute staff, made several valid observations about all of the above. He pointed out that “chenmoHwI’ lugh” actually translates as “the correct creator”, and “yab bang chut” actually translates as “mind one who is loved’s law”, which is wholly inadequate. He suggests that we use “chenmoHwI’ DIb chut” (creator rights law), and here it is in pIqaD:
I may have had too much fun writing this post.
Update:
The good people at the Language Creation Society have sent this update:
“The court in Paramount v Axanar just issued two orders:
a) denying Axanar’s motion to dismiss;
b) denying *without* prejudice our motion for leave to file amicus re Klingon.
Both orders, and the updated docket, are available in full at
http://conlang.org/axanar/#updates
We’ve also published a short statement from us about it there,
including relevant quotes from the court orders.”
Bad news for Axanar, but not bad news for the Klingon amicus, it just has been ruled not to be admissible now, it might be allowed later.
oogenhand 