From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Thursday, 5 May 2016

To boldly go where no copyright holder has gone before

This Kat would like to thank his colleague Tristan Sherliker, a solicitor at EIP Legal, for this interesting copyright mewsing. Tristan has been captivated, as indeed have many of us, by IP issues relating to the Klingon language - a language which, alas, the IPKat does not speak.

Prelude

In 2014, two fan-led Kickstarter campaigns raised over US$700,000 to create an independent Star Trek movie. The end product would be called Star Trek: Axanar, and based on a backstory reference from an early episode of Star Trek’s Original Series, broadcast in 1969. Later in 2014, a short film Prelude to Axanar was published as a result of the first of those campaigns, to great fan acclaim.

Prelude begins with a familiar six-note musical theme, followed by some recognisably-styled logos and a close up of a distinctively pointy ear. Less than a minute from the start, a somewhat less familiar alphabet flashes up on-screen, labelling a star map for those that can read it.

The copyright complaint was filed in December 2015 by Paramount Pictures Corporation (‘Paramount’), in the Central District of California against Axanar Productions, Inc. (which can be found here).

A cling-on
“Use all measures available to destroy them”

Unsurprisingly, there is a wide range of copyright matter defined in Paramount’s complaint.  Faced with an enterprise seen to be profiting from its own famous franchise, they did not hold back: as amended, the brief claims more than 50 copyright infringements, pleaded in full Technicolor®. That’s one infringement for every 20 seconds that Prelude to Axanar runs.

What is surprising, though, is the scope and variety of the works. The term “Star Trek Copyrighted Works” is defined to include not just the episodes, films and novels that would be expected, but also: “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”. Elsewhere in the brief, Paramount also folds in other matter such as faction emblems, the use of triangular medals, and the use of “beaming up”, “pointy ears” and “original technology”.

There are strong arguments both for and against and I do not comment on the merits of the suit itself. However, legal merits aside, the breadth of the complaint is itself laudably original and has considerable creative merit.  And that has given rise to an interesting plot point in the litigation: a motion to dismiss (translation: application to strike out) some of the more creative arguments.

Even better, last week a Brief of Amicus Curiae was filed on behalf of the Language Creation Society (‘LCS’), in partial support of the Defendant’s case. The legal question is raises: are languages capable of copyright protection – on any level?

The Klingon Language: the background

The “fictional language” element of the claim (highlighting added in the quote above) relates to the Klingon language, an exceptionally detailed artificial language originally created for the Star Trek universe.

Klingons first appeared on-screen in 1967, using generic guttural sounds for their (otherwise unscripted) non-English interactions. In the early 1980s, before the release of the third Star Trek movie, Professor Marc Okrand was commissioned by its producers to write the dialogue for the Klingons in their own language. Having laid the groundwork in the script, Prof. Okrand went on to develop this into a fully-functioning (though abbreviated) language, complete with rules of grammar and cultural peculiarities.  In 1985, an official Klingon Dictionary was published, allowing fans to follow dialogue and learn the language (followed by two further books in 1996 and 1997).

More than 250,000 copies of the original dictionary were sold. Many read it, and some fans learned the language – even fluently – and began to speak it to each other, pushing the boundaries and developing it further.  I notice it even has its own ISO-639 language identifier (“tlh”, apparently based on the Klingon word for their own language, “tlhIngan Hol”). LCS points out in its brief that this has even led to wordplay contests, certification examinations and even translations of Shakespeare into Klingon.

Issues never before tested?

Even if you’re not interested in copyright, the amicus brief makes interesting reading. Particular credit goes to Randazza Legal Group, LCS’s attorneys, for being brave enough to drive home their points with Klingon proverbs written in the Klingon language. It is clear that LCS abides by the old Klingon proverb “nItebQobqaDjup 'e' chaw'be' SuvwI'” (Translation: “A warrior does not let a friend face danger alone”).

Amusement aside, there is a serious question here: in principle, can a language – even an artificial language – be protected by copyright?  According to LCS, it has never before been raised before a court. The closest the US courts have come seems to be in respect of Loglan, a language intended to make logic pronounceable (and not intended for communication outside that field).

LCS raises several points in support of their motion that copyright does not extend to the language at all. The full brief should be on the Court’s online docket soon and is worth a read, but the key points are as follows.

  1. This is not about specific dialogue. The claim does not relate to paragraphs, sentences, or even specific words themselves. Rather, this is a claim to the language as a whole – including grammar, vocabulary, and fictional traditions that underpin the language. 
  2. Building blocks. Even if the claim were to specificities, those are only linguistic building blocks used for further creative expression. Copyright claimed in those elements cannot be merged in infinite ways to protect an infinity of different creations that stem from them.
  3. Limited number of ways to express an idea. As a continuation of point 2 above, LCS points out that an idea can only be expressed in so many ways: “to claim copyright in a language is to claim ownership over all possible thoughts and artistic expression that might employ that language”. They draw a parallel with the French language, which has itself been governed by the Académie française for nearly four centuries, yet would not qualify for copyright protection. In significant part, therefore, French is artificially constructed to meet the demands of its stewards. Is Klingon a lesser language simply because it has no native speakers?
  4. Written issues. As well as the use of a spoken language, written language is also not copyright protected per se. The glyphs used in Klingon are functional, and analogous to typeface designs (which are said in US law to be protectable as industrial designs only, per Adobe Sys. v. Southern Software Inc, 1998 US Dist Lexis 1941 (1998) – other countries have similar limitations, for example in the UK typefaces in particular are afforded a reduced term of protection under s. 55 Copyright Designs and Patents Act 1988).
  5. Independent Creativity. The Klingon Language Institute (itself the survivor of a threatened copyright action) is officially licensed by Paramount, and encourages its members to engage in creative activities such as wordplay competitions, translating other works, and writing fiction and poetry. These are themselves creative, and to mark them as infringements would be chilling and stifle creation.
  6. State of Mind. It is clear from its history and development that Klingon is a language designed to reflect the warlike culture of its fictional speakers. That leads to a particular state of mind for its speaker, says LCS, and such a state of mind “cannot be constrained by copyright law”.

If that list seems fairly one-sided, that’s because the Plaintiff’s answer is not yet known: LCS’s brief is recent enough that Paramount has not yet been able to reply, but a hearing is scheduled for 9 May 2016 to hear LCS’s application.

Other questions

Whether or not the arguments are agreeable, there are some further questions of interest that will no doubt arise in the life of the claim.

The first looks at the smallest element of the question: what lies behind the typeface? It is not so clear to me that the questions of typeface are so directly applicable to the current case. A typeface is an aesthetic variant of an (already-established) alphabet, and is constrained at least to some degree by the criteria behind that alphabet. On the other hand, the Klingon letterforms were constructed free from such preconceptions – indeed, they seem to be deliberately otherworldly and as such, to provoke a reaction in the viewer. That suggests some creative merit, artistic merit in particular, and (by extension) copyright as an artistic work. It appears absurd to suggest that such a copyright work would suffer a reduction in protection simply because, as a separate matter, each artwork is said to represent a sound.

Moving from glyphs to words, the question arises as to how short a copyright work can be. It is not clear that single words, or even short phrases, can benefit from copyright protection, at least without particular circumstances. Can the words of a language qualify for protection?

Third, even if rights do exist prima facie, the actions of Star Trek’s owners must also be considered. Not only have they published a dictionary (and presumably authorised the two books that followed it) – but they have dropped their copyright complaint against the Klingon Language Institute, which has been active for 24 years (which is said to be a licensee of Paramount). Either of those activities must imply some sort of licence for the dictionary’s purchasers (or the KLI’s members), and must translate to some permission to use the language in some context.

It is quite possible that both are subject to terms excluding any such licence, but if claimed those facts would need to be shown by the Plaintiff. Indeed, commercial terms (for example, in software EULAs) can often bear heavily on the treatment of these rights.

This case does not only concern language – it relates to nearly every element of a creative franchise there could be, as well as bearing on the underlying question of treatment of rights relating to fan fiction.

While many rightsholders will distinguish between use of its rights by ‘friend’ and ‘foe’, the papers in this case do not suggest that Paramount makes such a distinction. LCS cites the Klingon proverb: “Pity the warrior who slays all his foes” – underscoring the point that Paramount’s litigation is brought against the interest of some of the most dedicated fans of its own franchise. The entertainment industry (and lawyers advising on entertainment) should keep a close eye on its developments for valuable lessons in their own future practice.

No comments:

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':