The Fight Over Copyrighting Klingon Heats Up, And Gets More Ridiculous
from the are-we-really-fighting-over-this? dept
Last year, we wrote about a somewhat speculative article by Charles Duan from Public Knowledge, connecting the ridiculous result of the Oracle/Google fight on the copyrightability of software APIs, to the idea of trying to claim copyright in a language, with a particular focus on Klingon, the made up language from the Star Trek universe. And, then, of course, back in March, that speculative hypothetical became much more real, when Paramount's lawsuit against a Star Trek fan film did, in fact, argue that Klingon was covered by copyright, and that the fan film violated that copyright.A bunch of things have happened since then, as this mess careens towards trial, and we wanted to catch you up. First, the lawyers for the fan film, put together by Axanar Productions, challenged many of the claims made by Paramount in its amended complaint, noting that many of the things listed as copyright infringing, clearly were not -- including the language of Klingon.
The Klingon language... itself is an idea or a system, and is not copyrightable. As the Supreme Court held in the context of a system of bookkeeping, although copyright protects the author’s expression of the system, it does not prevent others from using the system. Baker v. Selden, 101 U.S. 99, 101 (1879). The mere allegation that Defendants used the Klingon language, without any allegation that Defendants copied Plaintiffs’ particular expression of that language, is therefore insufficient to state a claim for copyright infringement as to any protected element.That filing similarly challenged the idea that costumes (such as "gold shirts") or geometric shapes (like "triangular medals on uniforms") were copyrightable. Oh, and also lots of things that clearly predate the Star Trek universe, like the idea of transporters ("have existed in science fiction since 1877") and warp drive ("have existed in science fiction as early as 1945").
Paramount Pictures, not surprisingly, disagreed on all of this, insisting that all of these things absolutely were legitimately covered by copyright. First, it argues (somewhat convincingly...) that the issue is not these individual items, but rather the entire collection of them, creating a "world" that is covered by copyright, and that the fan film is obviously creating a derivative work, which they claim infringes. But then Paramount Pictures decides to attack the claims that these individual things can't be covered by copyright anyway. On the question of copyright in Klingon, they actually argue that Axanar's argument "is absurd."
Language is part of dialogue, which represents one aspect of the Star Trek Copyrighted Works and may be considered (at a later point) in a substantial similarity analysis.... Defendants argue that the Klingon language is not copyrightable because it is a useful system... Again, this issue is not yet before the Court – and certainly is not an issue to be addressed on a motion to dismiss.And then things got even more fun. A group called the Language Creation Society, represented by Marc Randazza, sought to file an amicus curiae (friend of the court) brief, which is well worth reading, in part because the section headings, along with a few key words, are in Klingon. For example, there's this:
Moreover, this argument is absurd, since a language is only useful if it can be used to communicate with people, and there are no Klingons with whom to communicate. The Klingon language is wholly fictitious, original, and copyrightable, and Defendants’ incorporation of that language in their works will be part of the Court’s eventual substantial similarity analysis. Defendants’ use of the Klingon language in their works is simply further evidence of their infringement of Plaintiffs’ characters, since speaking this fictitious language is an aspect of their characters.
To claim copyright in a language is to claim ownership over all possible thoughts and artistic expression that might employ that language. 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. It is a breathtakingly vast legal assertion that encompasses particular expression that the claimed copyright owner, by definition, cannot even conceive of.The filing also points out how silly the assertion above, by Paramount, that since there are no Klingons to communicate with, it's not a language and therefore is copyrightable:
First, this is a non-sequitur; a process or system need not be “useful” in order to preclude copyright protection, and Plaintiffs provide no authority to the contrary.Well, it probably won't surprise you to find out that Paramount Pictures and its pricey lawyers weren't too pleased about Randazza's/Language Creation Society's filing. They've filed an opposition. They argue (perhaps correctly), that the filing comes way too late, but also claim that the issue of the copyright in Klingon is "not before the court."
But more importantly, this is an insulting assertion. Many humans speak Klingon. The annual qep'a' involves singing and storytelling in Klingon. (See Exhibit 6.) People get married in Klingon. (See Exhibit 10.) Linguist d'Armond Speers even spent three years teaching his infant son to speak Klingon. (See Tara Bannow, “Local company creates Klingon dictionary,” MINNESOTA DAILY (Nov. 17, 2009), attached as Exhibit 12.) Speaking and writing in Klingon is not simply a matter of transposing words from a different language, either; it has an unusual grammatical structure that provides a different connotation than other languages....
And insult aside, Plaintiff’s contention is absurd. A language is not constrained to a given ethnic or racial group. By their logic, Ancient Greek is not “useful” because the Ancient Greeks are no longer with us, and the language has no native speakers, despite it being the original language of some of the seminal literary and philosophical works of the western world. Plaintiffs’ logic would seem to dictate that French is not “useful” if spoken by a native German.
In its application and amicus brief, LCS is asking the Court for an advisory opinion on whether fictional languages are copyrightable. This is not at issue in the motion to dismiss. At the motion to dismiss stage, the Court will determine whether Plaintiffs have sufficiently alleged the existence of their Star Trek Copyrighted Works and whether Plaintiffs have alleged infringement by the Defendants. The Court has not been asked to perform a substantial similarity analysis at this stage of the proceeding, and especially not to determine the independent copyrightability of the Klingon language (or fictitious languages in general) outside of context of Star Trek works.Instead, they argue again that Klingon is just one piece of the puzzle that they're using to show that Axanar is an infringing work. But, of course, that makes no sense. Because they were the ones who started this off by claiming that Klingon was covered by its copyright. And if Klingon is not copyrightable, then they can't make use of it as an example of how Axanar is infringing.
Meanwhile, Axanar Productions then hit back at Paramount Pictures in a new filing on Friday, claiming that in its opposition to the Language Creators' brief, it "raised new arguments."
First, while Plaintiffs now argue that the Klingon language is “merely one aspect of the Star Trek Copyrighted Works” and that Defendants’ use of Klingon is “further evidence of their infringement of Plaintiffs’ characters” (Dkt. 38 at 3-4), in the First Amended Complaint (“FAC”) Plaintiffs do not limit their allegations in this way. In the FAC, Plaintiffs claim ownership over “Klingons” as a race (FAC at 12) and over the appearance of Klingons (FAC at 13-14), and they claim separately to own the “Klingon language” (FAC at 32). In fact, the Klingon language is listed as a “Star Trek Copyrighted Work” according to the chart in the FAC. Id. Plaintiffs are hard-pressed to link their claim to the Klingon language to an actual character when their FAC does not identify a single specific Klingon character, let alone any character they claim Defendants have infringed through using the Klingon language.They also point out that the question of whether or not Klingon is covered by copyright is pretty important in establishing whether or not Paramount has a legitimate claim:
Indeed, like recipes in a cookbook, while the Klingon Dictionary may be protected from wholesale copying, the individual Klingon words contained therein and expression flowing from the Klingon language system are simply not protected. This Court should decline to allow Plaintiffs to stifle expression in Klingon when this matter can be resolved now as matter of law.And, yes, it's amazing that a copyright lawsuit has resulted in someone begging the court not to "allow Plaintiffs to stifle expression in Klingon." What a world we live in.
The Axanar filing also accuses Paramount of shifting standards when convenient:
Plaintiffs’ Opposition to the Motion claims that substantial similarity analysis is “unnecessary” here. Opp. (Dkt. 31) at 11:7-9. But now, Plaintiffs are reversing course and suddenly claiming that the individual works they alleged in the FAC are just pieces for a broader substantial similarity analysis. Plaintiffs cannot invoke the substantial similarity test only when convenient, and cannot complain about parsing out Plaintiffs’ claim to the Klingon language when their FAC does just that. FAC at 32. Further, the FAC remains unclear about (1) which episodes and films that Plaintiffs claim to own are at issue here (rendering it impossible to even begin to engage in any substantial similarity analysis), and (2) how the Court could engage in a substantial similarity analysis with respect to the Potential Fan Film when it has not yet been made.Needless to say, there's likely much more to come on all of this, and I imagine that it will continue to be quite entertaining. That said, while the larger issue may seem silly, the underlying issues here are of extreme importance. As in the Oracle/Google case, allowing copyright over something as simple as instructions or the concept of a language, represents a massive expansion of copyright law in a manner that clearly stifles both innovation and expression. We should be quite worried when courts are willing to allow such absurdities.
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Filed Under: apis, copyright, fan films, klingon, languages, star trek
Companies: axanar productions, cbs, paramount pictures
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Untimely amici
"They argue (perhaps correctly), that the filing comes way too late"
There's no "perhaps correctly" about this:
Plaintiff's Opposition is clear:
1. "Courts have held that amicus briefs are untimely when they are filed after the parties’ briefing on the pertinent motion has already been completed."
2. "If LCS had submitted its proposed amicus brief in a federal appellate court, it would have been untimely by several weeks."
Mr. Randazza is a masterful scholar of the defense and the direct use of free expression... except when he uses the DMCA to censor others' use of the same. http://arstechnica.com/tech-policy/2016/02/embattled-copyright-lawyer-uses-dmca-to-remove-article-ab out-himself/
E
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http://arstechnica.com/tech-policy/2015/11/how-copyright-lawyer-marc-randazza-got-famous-lost-fr iends-and-went-broke/
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Re: Untimely amici
Or is it that you are just trying to conflate your real agenda based on your opinionated bias about Mr Randazza on this thread and troll?
Dont bother answering. Enquiring & reasonably intelligent minds already know the answer.
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Re: Untimely amici
I know what it's like to have That Dumb Thing You Did hanging over you for years on end and damn it, I'm glad to have finally left it behind — along with a lot of personal investment in that area. Long story. All I'm saying is, don't be too quick to deal out judgement, you never know when you might need a bit of grace for yourself.
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Copyright never fails to amaze me.
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Which surely means they've paid licenses to the original copyright holders for every single episode with transporters and warp drives, right?
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I don't think this is really about Klingon.
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IOW, there wasn't a formal briefing schedule, but this brief is late.
IOW, there wasn't a length limit, but this brief is too long.
Maybe Paramount has the better of the argument, and is correctly applying the standards of the appellate court to say that the amicus brief is unsuitable. But it sure sounds like table-pounding to me.
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majQa' Daj
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Re: majQa' Daj
Imagine if you wrote a poem in Nadsat or Newspeak -- but, you don't use any actual lines from A Clockwork Orange or 1984. You're then probably engaged in fair use.
But, I think the Klingon angle goes one degree beyond that -- not just fair use, but that the "language" once it becomes an actual functioning language, all copyright bounds are then erased.
Lets put it this way -- it is at lease *possible* that Klingon could become the lingua franca somewhere, no?
The fact is, you deserve to have copyright protection for your movie ... but if that movie spawns something with its own independent life, that life does not belong to you.
the Cohen brothers can't claim copyright protection in the Dudeist religion.
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Hungry Lawyers
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Uh, what? Did Paramount really argue that in its brief to the court? Somebody needs to remind Paramount that you don't need Klingons to communicate in the Klingon language, since a lot of Star Trek fans communicate with each other in the Klingon language. It might have been created by the writers on Star Trek, but it has evolved into a language that is now commonly used by fans of the science fiction series.
Secondly, Klingons in the TV series, the movies, the comic books, novels and fan fiction communicate with each other using this language.
Paramoutn has lost its mind because Klingons exist within the series. Before Paramount can make that argument, Klingons may not exist in any form, in reality or in published form. Additionally, is Paramount now saying that Klingons don't actually exist on another planet in another galaxy or solar system? That takes some very large cajones to make that kind of statement.
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When you create something as a work-for-hire, the people paying you to create it own what you create, unless a contract states otherwise.
If Okrand's contract had stated otherwise, I think he would've shared that important piece of information. Instead, he said that while he got authorship of the Klingon dictionary, the copyright of the book itself was by Paramount.
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Actually there are people who speak it. I was amused when I found out. At the time the number hovered around 100 people or something. So Paramount is wrong here.
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lawsuit
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Axanar's legal team should just walk into court and open with "As lawyers, everything we say is a lie. We're lying." Paramount's people all go limp and can't do anything but mutter "Norman coordinate" over and over. Axanar wins, TOS is once again proven to be the best series.
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While they are at it, might as well copyright the concept of "alienating their core fan base"
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So if Paramount could cease and desist using it, that would be great.
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actually.....
The OTHER issue, is as to who OWNS said trademark. CBS holds the trademark for the greater Star Trek universe. Paramount holds the LICENSE to make Star trek films (IIRC).
My source
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[Internet-Alliance-Against-People-Who-Are-Wrong sharpens tines of pitchforks, wraps torches in freshly-tarred rags, drinks prune juice.]
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A warrior's drink!
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Axanar Productions may find itself in an untenable position for the simple fact that Paramount could end the production of the fan film by simple rearing its ownership over the "Star Trek" idea as well as the characters, situations and starship designs that appear within the fan film.
Simple fact is, the moment Paramount challenged Axanar Productions in a court filing, the fan film that they were producing has effectively been doomed. I just don't see the fan film getting completed, now that the ball has started moving in the courts.
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And isn't it great watching how yet again copyright provides incentives to create new and interesting things, to the benefit of the public? /s
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Axanar Productions is basically appropriating something that Paramount owns through copyright. Fan fiction is one thing, cheap fan films are one thing but creating a professional product like what Axanar Productions is doing crosses the line about what fair use is all about.
Anyone who says that Axanar Productions is not trying to make a profit from this film is deluding themselves. Fact is, while "Prelude to Axanar" may be considered a fan film, "Star Trek: Axanar" is NOT a fan film, it's a professional production, utilizing production crews that worked on the actual Star Trek TV shows that have previously been created by Paramount.
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so your argument is this, "It's okay if it's shit tier quality, but if you make anything with ANY kind of quality standards, you are in trouble."
glad we cleared that up.
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Yeah, I'm going to have to go with a 'Citation Needed' there, as I don't imagine very many things have been created because of copyright at all, with very few creators thinking, 'You know, I'd love to write this book/create this song/make this painting, but only if I can have monopoly rights over it for decades after I die. Anything less and it's just not worth it.'
Conversely are things created in spite of copyright? Absolutely, that's basically fanfics, fanpics, remixes and all that other stuff in a nutshell, things that almost certainly wouldn't exist were everyone to follow the rules of copyright to the letter or even cared much about copyright at all when making something. That sort of creativity is abundant and everywhere, and it has nothing to do with copyright and everything to do with simple human nature and the urge to create and express yourself through your creations.
Axanar Productions is basically appropriating something that Paramount owns through copyright. Fan fiction is one thing, cheap fan films are one thing but creating a professional product like what Axanar Productions is doing crosses the line about what fair use is all about.
'Appropriating'? You make it sound as though they're taking something away from Paramount, as though Paramount is losing something when instead something is being created. Paramount can still do their own Star Trek related stuff as much as they want, nothing Axanar is doing prevents that.
As for 'crossing the line', where exactly is the line in your opinion?
If someone spends almost nothing on a fan film with absolutely excellent effects(for the budget) and acting, is that crossing the line? How about spending a significant amount and creating something mediocre, is that crossing the line? How much is spent in production has nothing to do with whether or fair use applies, as to claim otherwise is basically saying that it's only fair use when the quality is low, which is absolutely not in the public's best interest.
Anyone who says that Axanar Productions is not trying to make a profit from this film is deluding themselves. Fact is, while "Prelude to Axanar" may be considered a fan film, "Star Trek: Axanar" is NOT a fan film, it's a professional production, utilizing production crews that worked on the actual Star Trek TV shows that have previously been created by Paramount.
... and? Something can be fair use and still be intended to make a profit, the two are not mutually exclusive.
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- Tengwar Liberation Font
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Copyright law was never designed to promote incentives for creating intellectual properties, it was designed as a shield where those who create intellectual properties could protect what they create in a court of law.
People are misinformed about copyright law. While copyright law promotes people into creating intellectual property, such as software, movies, music and books, it doesn't mean that everybody and their brother has the right to take what they created and use it as their own.
When you create something, such as a concept for a movie, copyright law doesn't allow for someone else to take what you created and profit from using an idea created by someone else. Fair use is limited. It just means that you can use 30 second clips of audio and video for review purposes.
Many morons think that creating such things like fan-fiction, fan art and fan films are covered by fair use. They would be wrong. Publishers and studios who maintain the rights to such properties and such works allow such things to flourish until it becomes either too popular or if someone is trying to profit such such works.
Paramount has always been vigorous when protecting the copyrights on what they own, such as Star Trek. The Axanar movie clearly violates the "fair use" provision of copyright law. Just don't expect the Axanar movie to continue forward. Even if the courts rule against Paramount over the "Klingon language", expect Paramount to file suit against Axanar for violating their copyright in regards to "Star Trek".
Thing is, there's nothing Axanar Productions to change the film because it's focused solely in the Star Trek universe.
Ryunosuke, above, is also wrong. CBS has the rights to Star Trek where they pertain to television series production and broadcast rights for Star Trek. Paramount owns the theatrical movie rights.
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Out of curiosity, define 'hypocrite', as I'm wondering how those that are replying are considered by you to fall into that category. Given the rest of your comment, sprinkled with insults I'm guessing it's just a friendly little way you refer to those who don't share your opinions.
Copyright law was never designed to promote incentives for creating intellectual properties, it was designed as a shield where those who create intellectual properties could protect what they create in a court of law.
Let's check the law itself shall we?
'To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. -Article 1, Section 8, Clause 8
Yup, you're absolutely right, copyright has always been about the creators, and was never about providing incentive to create so that the public would benefit from more works being created and ultimately entering the public domain.
When you create something, such as a concept for a movie, copyright law doesn't allow for someone else to take what you created and profit from using an idea created by someone else.
And again, let's check the law itself on this shall we?
'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. - Copyright Act of 1976 (17 U.S.C. § 102)
Copyright covers the execution of an idea, it does not protect the idea itself. If I come up with an idea for say a grand battle between good and evil, with magical swords taking place in space, I can absolutely do that. It's only if I start using specific terms like 'lightsaber', 'Skywalker' and so on that I might run into problems.
It just means that you can use 30 second clips of audio and video for review purposes.
No as a matter of fact it does not. It's possible to use an entire work and still qualify for fair use, say for commentary or parody. Using a significant portion of a work, or more than 'necessary' just decreases the odds that it will be found to be fair use, it does not negate it.
Many morons think that creating such things like fan-fiction, fan art and fan films are covered by fair use. They would be wrong.
Nice assertion, got anything to back it up? Going through the 'Fair Use checklist' most fan creations are:
1. Transformative and nonprofit.
2. (Factor isn't really applicable)
3. Generally use only as much as needed to create the work, story or otherwise.
4. Have little to no negative impact on the source material(beyond perhaps raising the bar on what quality can be expected), and in fact tend to have positive effects instead by increasing interest in the source material or creating it in those that were unaware of it before(I personally have made several purchases because of fan creations getting me interested in the source material).
Now it's possible that legally you're right, that such works are a violation of the law as it currently stands, though I wouldn't consider that a point in your favor, rather I'd see it as evidence that copyright law needs to be changed to better fit society. If you've got countless people violating a law, who not only don't know that they are but would be surprised or shocked to be told 'Writing that fanfic/Creating that fanpic' is illegal', that's evidence of a bad law.
Also let's take a step back from there shall we, with a claim like that there's another term I'd like you to define for me: 'Fair Use'. In particular what it does and does not allow, and what it's for in your view.
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Greek hypokritḗs: a stage actor, hence one who pretends to be what he is not
Interesting since we are talking about film studios and acting
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Thanks for confirming what we've known all along.
Now, how about we move on to why copyright needs to last 70 years past the death of the creator?
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Then it needs to be repealed, because there is no constitutional authority for copyright law that is not designed to promote public progress.
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What many forget is that "Star Trek: Axanar" is not fair use, no matter how much people claim it is. Axanar is a full fledged professional Star Trek movie that is not "used for review or criticism", "parody" or "transformative".
Star Trek: Axanar is NOT transformative. Azanar Productions is making a feature length movie that seeks to add to the Star Trek Universe. This film is different than the other 'cheaply' made Star Trek fan movies that are available through youtube. Those films feature cheap writing and special effects. Axanar is simply using actual production staff from previous Star Trek TV shows, actors from said TV shows and trying to tie 'Axanar' into the chronology.
When Star Trek: Axanar is sued on copyright grounds, Axanar Productions will lose. The movie is dead in the water.
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Of course you can. That's exactly what they're doing. They are arguing that very fact.
"Axanar Productions using Kickstarter to generate funds and providing a digital copy or a copy for home use is "making money" from the "Star Trek" property without getting permission from the copyright owners."
There is a long established legal history of commercial operations being found to be fair use. Making money off it does not discount fair use, no matter how manner times you say it does.
"What many forget is that "Star Trek: Axanar" is not fair use, no matter how much people claim it is."
Fair use is not something you remember or forget, it's something that's determined in a court of law.
"Star Trek: Axanar is NOT transformative."
So a completely original story, dialogue and characters is not transformative? I think you might not understand what the word means.
"This film is different than the other 'cheaply' made Star Trek fan movies that are available through youtube."
Can you point to the section of copyright law that establishes "different to other fan movies on YouTube" as some sort of demarcation?
All these claims of yours have little legal weight, and instead come off as "I really don't like this so it must be copyright infringement!" You'll need to try a lot harder. You might end up being correct when you say that they'll lose, as fair use cases can be pretty hard to call beforehand, but it's just as well you're not arguing Paramount's case for them...
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Re: board doesn't like the less than sign
The trailer/short movie, Prelude to Axanar (on youtube), which was made in a documentary style is great and I doubt the movie will be worse with 10 times the budget. Funny thing is they had no problem with Prelude to Axanar.
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Re: Re: board doesn't like the less than sign
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Just click it
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Fans not pleased. Evidence, "Little to late" ?
The line "They argue (perhaps correctly), that the filing comes way too late" scared me. When is it to late to add evidence to make a decision?
(smiles) The thought of angry fans dressed as Klingons protesting Paramount outside movie theaters this July should make for good news coverage.
While the legal issue is copy write, the deeper issue is the fan movie "Axanar" eclipsing Paramount's production. If "Axanar" did not have a chance, it would not matter. The kickstarter for "Axanar" shows fans want something Paramount did not write.
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