While you can copyright scripts, novels, song lyrics, and many other ways of using the English language, you can’t actually copyright the English language. But what about a language that you construct out of whole cloth? Once you share it with the world, are people free to use that new language however they wish, or do you maintain control over its use?

This is one of the questions at the heart of an ongoing legal battle between the creators of a Kickstarter-funded Star Trek fan film and Paramount Pictures, which says the project violates various Trek-related copyrights, including the studio’s copyright claim to the Klingon language.

In Paramount’s original complaint [PDF] against the filmmakers, the studio listed a number of exclusive rights it contends it holds with regard to the Star Trek universe — “characters, themes, plots, dialogue, settings, sequences, situations, and incidents therein, and also the props, character makeup, costumes, sets, fictional language, events, and fictional history.”

Klingon, as you’re likely aware, is a fictional language originally created for use in the Star Trek films and TV shows, but which is now also spoken by fans around the world, both in and outside of the context of Star Trek.

Nowhere in its 1,288 compendium does the U.S. Copyright Office specifically deal with the copyrightability of constructed or fictional languages, let alone Klingon, but in filing their motion to dismiss the complaint [PDF], the filmmakers argue that, among other things, Paramount can not hold the copyright to Klingon.

“The Klingon language itself is an idea or a system, and is not copyrightable,” reads that filing. “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.”

This week, Paramount fired back, arguing in its response [PDF] that the filmmakers’ claim is 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 studio says that the filmmakers’ use of the Klingon language in their movie, which has raised hundreds of thousands of dollars from supporters, is “simply further evidence of their infringement of Plaintiffs’ characters, since speaking this fictitious language is an aspect of their characters.”

So who is in the right on this one? As we noted above, the U.S. Copyright Office hasn’t specifically addressed the issue, and there doesn’t seem to be much in the way of case law with regard to the exact topic of copyrighting a fictional language.

However, in 2014, the Harvard Journal of Law & Technology published a note [PDF] — originally written for a class by Harvard Law grad Michael Adelman — attempting to answer this very question.

Adelman acknowledges that authors may be tempted to assert a copyright claim over the use of a fictional or constructed language “to prolong her control of the language’s dissemination and development,” but concludes that this sort of copyright claim is “both misguided and likely to fail.”

In fact, Adelman’s note specifically cites the ways in which Paramount has previously established its authority over the use of Klingon.

While linguist Marc Okrand is the creator of the Klingon language and author of subsequent official dictionaries and books about the language, Paramount remains the copyright holder on those titles. Paramount is also the copyright holder of a Klingon translation of Shakespeare’s Hamlet produced by volunteers from the Klingon Language Institute.

For his various writings about Middle Earth, J.R.R. Tolkein created the Elvish language, which like Klingon, has gone on to have a life of its own beyond these works of fiction. Adelman notes that while the Tolkein estate contends that it controls the copyright for this language, it has not yet filed lawsuits specifically claiming copyright violations. However, he notes that the estate did threaten legal action against a writer who tried to publish an analysis of currently unpublished Tolkein works written in an Elvish language.

“[U]ltimately, most scholars of Tolkien’s languages are making the calculated gamble that since they are publishing obscure texts to limited audiences for no money, the Tolkien Estate will not actually haul them into court,” writes Adelman.

THE ARGUMENT AGAINST COPYRIGHTING A LANGUAGE

To those who believe that languages — whether created by one person or the result of centuries of human interaction — can’t be copyrighted liken this idea to trying to claim copyright of a musical scale. The Copyright Office has explicitly barred scales from eligibility, because these notes are simply generative elements upon which a copyrightable work could be constructed.

For example, the first movement of György Ligeti’s Musica ricercata may be primarily made up of only two notes — A and D — it is the arrangement and expression of these two notes that is copyrightable, not the notes themselves.

“It is the infinitely generative capacity of a language, the ability to communicate new thoughts and ideas, that makes a set of sounds and grammatical rules into a language,” writes Adelman, acknowledges that the actual Star Trek products and the Klingon dialogue they use are deserving of copyright, “the language itself is too generative to be held within a single copyright.”

Additionally, while authors may have a direct interest in attempting to protect the integrity of the language they created, that doesn’t necessarily mean they have the legal right to stop others from using it.

“No one would dispute that J.R.R. Tolkien’s integrity right in The Lord of the Rings would be infringed if someone released a version identical to the original except with all references to ‘Mordor’ replaced by ‘Candyland’,” notes Adelman, adding that “Tolkien cannot hold a right to all compositions in [the Elvish language of] Quenya any more than Noah Webster of Webster’s Dictionary can hold a right to all compositions in English.”

WHAT ABOUT FAIR USE?

As we recently reported, many schools are now teaching proscriptive lessons on copyright: Don’t do this, don’t do that… or you’ll get sued. What’s not being taught in these cases is the Fair Use doctrine, which lays out guidelines for when it’s okay to take something you didn’t create and use it in your own work.

The doctrine grants exceptions to copyright when works are used for the purpose of criticism, comment, news reporting, and education. And Adelman contends that — even if you could successfully argue that a fictional language is copyrightable — “fair use would protect most of the activities” of people who are accused of violating that copyright.

But again, the problem faced here by people looking to use a constructed language would likely be cost. How much can one afford to spend on arguing the fair use of Klingon or Elvish when the financial rewards of being able to do so are likely minimal. Thus, few pursue this argument through the legal system.

The debate over the copyright for Klingon is just one, small aspect of the current lawsuit filed by Paramount, so it’s possible that the court could make a decision in this case without giving full consideration to the language debate.

Of course, if the copyrightable nature of the Batmobile can get inches away from being heard by the Supreme Court, it’s possible that someone willing to put in the time, money, and effort could ultimately get the court system to settle the issue of whether or not we need an author’s permission to use their made-up language.

[via TorrentFreak.com]