Image of Axanar production art

Production art from “Axanar”

Remember our previous article regarding the Star Trek fan-fiction movie, Axanar? Well, the legal between Paramount and CBS versus Axanar has taken a very interesting turn. When Paramount and CBS claimed copyright infringement for “innumerable” elements of its intellectual property, included in its claims were the rights to the written and spoken language of Klingon. Here the case has come screeching to a halt, as Axanar fired back arguing that languages cannot be held as copyrightable, and provided strong evidence from The Language Creation Society as proof of “constructed languages.” Before the case can proceed, the court will need to decide whether or not the plaintiffs hold rights to the constructed language of Klingon.

The language of Klingon, sometimes to referred to as Klingonese, was created in 1985 by Mark Okrand, and subsequently published in his book The Klingon Dictionary. The language was an instant hit with Trekkies, with many derivative works hitting the market (like 4 Klingon adaptions of separate Shakespeare works) and the founding of The Klingon Language Institute. Additionally, speaking in Klingon is referenced on many television shows in pop culture, and most famously a couple was married with the ceremony conducted entirely in Klingon.  Google’s search engine allows users to search in Klingon, and a Klingon language character was even included in Wikipedia’s logo before the 2010 update. Since its inception and use in the Star Trek universe, Klingon has become a household name.

So the question remains of whether Paramount and CBS can claim ownership and copyright of the Klingon language, the necessary component in order to assert a claim of infringement. While CBS owns the copyright of The Klingon Dictionary, Axanar argues that the words themselves are facts and used in a “living language,” and only the compilation’s style and format actually can be copyrighted, not the words themselves. Axanar bolstered its argument with a 26-page amicus brief from The Language Creation Society which drove home the point that constructed languages, as opposed to natural languages, after becoming “living languages” cannot be controlled by a corporation or other legal entity as intellectual property. The amicus brief was rife with tongue-in-cheek Klingon phrases and pot-shots as footnotes of the brief, aimed at Paramount and CBS, including “they are cowards” and “their so-called honor is empty.” While these arguments may not be strong enough for the court to ignore the overwhelming unauthorized use of copyright by Anaxar in all aspects of the film, at least they had a great time taking shots at the plaintiffs!

It seems highly probable that Paramount and CBS will be able to defeat Axanar’s defense of fair use, including their defense on the non-copyrightable features of language. Even though Axanar raised over 1 million dollars in crowdfunding, the probability is high for an injunction blocking production and release. Next time you’re thinking of donating your hard-earned cash to a fan-created derivative work, ask yourself: “Is this going to cause a lawsuit?” If the answer may be yes, take your money elsewhere.

Author, Chuck Coulter, is a second year student at Pace Law School, where he specializes in corporate law and intellectual property. Chuck is an avid video gamer, golfer, entertainment guru, and bona-fide geek. When he’s not busy at work for Morrison/Lee, you can find him on Twitter @Coulter_Legal.