A colorful yet informative brief filed last week defended the fictitious Klingon language from Star Trek as a "living language." However, the lawyer representing CBS Corp. and Paramount Pictures in a copyright infringement suit against a Star Trek fan-film want the "friend of the court" brief to be stricken from the record.
Loeb & Loeb attorney David Grossman called the unsolicited brief from the Language Creation Society untimely and improper. In that brief, the California-based language group didn't take sides in the case, but felt that the component where CBS and Paramount claimed ownership of the Klingon language shouldn't be considered by the court.
"Klingon gave Star Trek characters convincing dialogue," attorney Marc Randazza wrote, on behalf of the society, in the brief. "But it broke its chains and took a like of its own — a life that the Copyright Act has no power to control."
Grossman, however, said the brief is immaterial to the current issues in front of the court — namely a motion to dismiss filed by the defendants, Axanar Productions, and its principal, Alec Peters.
"LCS is asking the court for an advisory opinion on whether fictional languages are copyrightable," Grossman wrote in his opposition to the motion, filed Tuesday. "This is not at issue in the motion to dismiss."
Instead, Grossman said, the court is considering whether CBS and Paramount have "sufficiently alleged the existence" of their copyrights on various Star Trek elements, and whether there is reason enough to believe that Axanar and Peters infringed on those rights.
CBS and Paramount filed the suit last December, claiming that the activities of Axanar and Peters infringed on their Star Trek copyrights, which are jointly held between the two studios. The fan-film raised $1.3 million, according to Peters, and produced a short called "Prelude to Axanar" as well as an individual scene known as the "Vulcan scene" intended for a feature-length production that has been known as "Star Trek: Axanar."
Although the fan-film producers claim they have dropped "Star Trek" from the production's name, they still use "Star Trek: Axanar" on a number of promotional materials, including banners and advertising at a small Trek convention in Atlanta just last month.
The studios are seeking not only to stop the "Axanar" production, but also collect damages for each infringing work, which has a statutory limit of $150,000 each, or actual damages.
The Language Creation Society's brief — also known as an "amicus brief" — came at an unusual time, Grossman said, because all the briefs and responses have been filed on the motion to dismiss, and the court is ready to hear those arguments next week. The timeliness of this brief would not give the studios enough time to respond, and would not give Judge R. Gary Klausner enough time to consider the studios' response, the plaintiffs' attorney added.
If the judge were to allow the brief to stand, Grossman wants sufficient time to be able to craft a response — but it should not affect the May 9 hearing date where the court will consider arguments in the defendants' motion to dismiss, "because doing so would allow the tail to wag the dog."
Grossman also emphasized once again that, despite some of the mainstream media coverage surrounding this case, the Klingon language is not central to the copyright infringement case against Axanar and Peters. Instead, it's "merely one aspect of the Star Trek copyrighted works that can be considered at a later point."
That point, Grossman said, is what is known as a "substantial similarity analysis," which is common in copyright infringement cases. It helps a court determine if there is infringement, even if some elements of the alleged derivative work have been altered and are not exact copies.
In fact, courts typically conduct two substantial similarity analyses. The first determines if there is indeed a copy of a protected work, even if altered. If it is a copy, the court would then conduct a second analysis to determine if the copying crosses the line from First Amendment-protected fair use to outright unlawful behavior.
A spokesperson from the Language Creation Society referred 1701News to a Law360 story for comment on the CBS/Paramount brief. In that story, the society's attorney Randazza scolded Paramount for not admitting it can't own a language through copyright.
"That would have been the intellectually honest thing to do, and would have been much simpler," Randazza told the trade publication. "A single page brief that says, 'Yeah, we admit that we don't own Klingon.' Instead, someone padded their time entries for the month, which is between them and their client."
Erin Ranahan, who represents Axanar and Peters pro bono, told Law360 she supports the society's brief as a way to defend against what she called CBS' and Paramount's "attempts to stifle Star Trek fans from expressing themselves in Klingon, a language that the fans themselves contributed so much to creating."
The language was created as a "work for hire" by Marc Okrand in the early 1980s, primarily to be used in "Star Trek III: The Search for Spock." Okrand, a linguist, later authored a Klingon dictionary, which was copyrighted by Paramount. Okrand later said that while he doesn't own the language because of his working relationship with Paramount at the time, it's an issue that is still not clear.
"This is not the first time that who owns Klingon issue came up," Okrand told a podcast last month. "It is an artificial language that was created for hire ... to the best of my knowledge, it has never been officially settled by anybody."
h/t Jody Wheeler
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