Klingon, Code, and Copyright

Public Domain
Klingon Alphabet

Are languages protected by copyright? Anyone with a rudimentary understanding of copyright law would answer this question in the negative, but Paramount is claiming copyright ownership in the Klingon language. Anaxar Productions created a short film entitled Prelude to Axanar and has an Indiegogo campaign to crowdfund a feature length Star Trek film. Paramount filed a complaint for copyright infringement and listed various elements of the defendant’s film that are allegedly infringing. The “fictional language” (referred to in paragraphs 20 and 56 of the complaint) is listed as one of the infringing “Star Trek Copyrighted Works.”

A language is a system of communication; grammar and syntax are the rules that allow it to function. Language is used to express ideas but it itself is not protectable expression. In Baker v. Selden, the book about bookkeeping was protected but the system of bookkeeping itself was not; a Klingon dictionary may receive copyright protection, but the Klingon language is not. Therefore, languages are clearly ineligible for copyright protection under 17 U.S.C. 102(b):

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

The Klingon Hamlet
Fair Use: https://en.wikipedia.org/wiki/File:TheKlingonHamlet.jpg

Should it matter that Klingon is a synthetic language? Paramount thinks so, although their reasoning is questionable. They argued that “a language is only useful if it can be used to communication with people, and there are no Klingons with whom to communicate” but as the Language Creation Society pointed out in its amicus brief, Paramount’s “logic would seem to dictate that French is not ‘useful’ if spoken by a native German.”

Public Knowledge’s Charles Duan wrote an article last year, before this litigation began, arguing that the Oracle v. Google decision (see EFF for case docs) could impact Klingon-speakers. Now it has been suggested that the reverse could be true: this Klingon case could affect programmers. Unfortunately the Federal Circuit reversed the N.D. Cal decision-even though badass Judge William Alsup learned Java for the case and clearly understood the technology better-and held in no uncertain terms that APIs can be protected by copyright. Now the case is being decided on fair use grounds. A finding of fair use for

Sample of Java API from Oracle v. Google N.D. Cal decision
Sample of Java API from Oracle v. Google N.D. Cal decision

Google would be a victory, but a broad holding categorically eliminating APIs from copyright protection would have been much better. While it looks like Anaxar might have infringed some copyright-protected elements of the Star Trek franchise, hopefully the C.D. Cal. court will hold categorically that synthetic languages cannot receive copyright protection, rather than reaching a vague fair use finding that could have a chilling effect on programmers.

But it’s more likely that the court will dodge this question, as Paramount asked it to in its opposition to the Language Creation Society’s amicus brief. But, I don’t think courts can avoid addressing this question for much longer- HBO is bound to bring a Game of Thrones lawsuit involving Dothraki at some point, right? Axanar just filed its response to Paramount’s Opposition last week, so it will be interesting to see how this case progresses.

Update: The court denied Axanar’s motion to dismiss for reasons that do not rely on the Klingon language issue. It therefore denied the Language Creation Society motion for leave to file an amicus brief about the Klingon language without prejudice. See conlang.org.

 

 

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