Alec Peters may be the world’s biggest Star Trek fan. Sure, plenty of Trekkies (or Trekkers, if you prefer) have written fan fiction based on the TV series and movies. A number of fans have even created fan videos. But how many of them have raised more than a million dollars to produce a mockumentary and eventually a professional feature film based on their fan fiction?
Unfortunately for Peters, in December 2015, Paramount and CBS filed a copyright infringement suit seeking damages for the existing infringements and an injunction stopping the ongoing production of the full length Star Trek: Axanar movie. An amended version of the complaint details the characters, costumes, settings, production designs and other similarities between the two Axanar films and the official Star Trek productions.
Peters’ defence, as outlined in a motion to dismiss, is that the Star Trek universe as a whole is not subject to copyright, and that individual elements that they have copied are “too general for copyright protection, are scenes a faire, or are commonly used, unoriginal ideas.”
Among the more legally interesting points at issue is whether the Klingon Language, constructed for the Star Trek universe, is a copyrightable work. The defence relies on Baker v. Selden, the classic business forms case that developed the principle that copyright protection does not subsist in useful systems. Peters argues that a language—a system for expressing ideas, not the expression of an idea—is not the proper subject matter for copyright protection.
CBS and Paramount characterize that argument as absurd. They counter that Klingon cannot be a system for communication without actual Klingons to communicate with. Further, as a fictitious language, they argue Klingon can be original and copyrightable.
The Klingon issue has attracted outside interest, including an amicus brief by the Language Creation Society (LCS) which is itself partially written in Klingon. LCS’s brief outlines the history of the language. Marc Okrand was originally contracted to create Klingon dialogue for Star Trek III. He later published a more complete and functional version of the language in a Klingon Dictionary and two other books on the language. Outside official channels, Klingon has taken on a significant life of its own, with linguists writing academic papers about the language, fans doing translations of Shakespearian plays into Klingon, and even a wedding being conducted in Klingon.
The LCS argues that CBS and Paramount could own copyright in specific Klingon dialogue used in their productions or in Okrand’s books explaining the language, but they cannot claim copyright over the language as a whole. They also cite Zalewski v. Cicero Builder in favour of applying the merger doctrine, the principle that if there is only one or a small number of ways to express an idea, the idea and expression merge and the expression cannot be protected by copyright. The LCS argues the merger doctrine applies because the only way to express ideas in the Klingon language is to use the Klingon language to express them. The LCS also contends that protecting a language would run counter to the Constitutional mandate for copyright in American law, which is to promote the progress of useful arts. By granting copyright protection over Klingon, the LCS claims “an entire body of thought would be extinguished.”
Should anyone other than a few die-hard Trekkies care whether Klingon is protectable?
Klingon is not the only complete fictional language. Dothraki, from the Song of Ice and Fire books, was expanded from the words on George R.R. Martin’s pages into a more complete language. J.R.R. Tolkien, an accomplished linguist, created a wide variety of languages for the various races that inhabited his books. A copyright ruling on the protectability of Klingon would therefore also impact everyone who creates, studies or uses those languages.
There are also active communities of “conlangers”: people who construct their own languages out of interest in linguistics or to support their own literary works. A decision on Klingon would affect the scope of protection over conlangers’ creations.
Most importantly, the decision could apply to protectability of another class of (currently hotly contested) artificially constructed languages: computer programming languages. The US Federal Court of Appeals decision in Oracle v. Google, which found that the Java programming language’s APIs were protectable, has been described as dangerous and scary for its potential impact on technological innovation. The US Supreme Court denied certiorari on Google’s appeal, but a finding that constructed languages like Klingon are not protectable expression could help create more conflicting precedents, forcing SCOTUS to reconsider.
Jacquilynne Schlesier is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.