The attorney representing a fan-film production being sued for copyright infringement is pushing even harder to yank the Klingon language out of the lawsuit, fueling a new battle over the fictitious language.
Erin Ranahan, an attorney representing Axanar Productions and its principal, Alec Peters, says CBS Corp. and Paramount Pictures can’t claim ownership to the language, which Marc Okrand created as a work-for-hire in the early 1980s. And while fans might not want to think about food and Klingons in the same sentence, Ranahan doesn’t have to look any further than the kitchen to defend her position.
“Indeed, like recipes in a cookbook, while the Klingon dictionary may be protected from wholesale copying, the individual Klingon words contained therein and expressions flowing from the Klingon language system are simply not protected,” Ranahan wrote in a brief filed with the district court on Friday. The judge, she added, should stop CBS and Paramount from “stifl(ing) expression in Klingon when this matter can be resolved now as a matter of law.”
The “friend of the court” brief filed by the California-based Language Creation Society last week, asked the court last week to exclude the Klingon language as an element in the copyright infringement case. CBS and Paramount filed the lawsuit last year against the producers of the proposed fan-film “Star Trek: Axanar,” after it raised $1.3 million in donations.
“Klingon gave Star Trek characters convincing dialogue,” Marc Randazza, the attorney representing the society, said in his unsolicited brief. “But it broke its chains and took on a life of its own — a life that the Copyright Act has no power to control.”
Also seemingly taking a life of its own is the debate over the Klingon language, one of dozens of elements CBS and Paramount cited to support its copyright claim against Axanar. David Grossman, who represents the studios, called for the brief to be disregarded earlier in the week.
“LCS is asking the court for an advisory opinion on whether fictional languages are copyrightable,” Grossman said. “This is not at issue in the motion to dismiss.”
Ranahan filed a motion to dismiss after CBS and Paramount amended their complaint in March. Ranahan is seeking to have either chunks of the lawsuit cut out, or the entire complaint thrown out on various technical grounds. The judge was scheduled to hear oral arguments on the motion May 9, but instead informed lawyers from both sides he would make a ruling based on written briefs already submitted by both sides.
There will still be a hearing on Monday, and Judge R. Gary Klausner could indeed rule on outstanding motions, including the defense’s motion to dismiss.
Randazza added his friend-of-the-court brief was not intended to take any sides in the lawsuit, except to defend what he says is the open-source nature of the Klingon language.
Grossman also argued that the brief was not proper for the court, and that he wouldn’t have sufficient time to respond before the May 9 hearing, let alone enough time for the judge to consider all arguments.
In opposing the brief, Grossman said the inclusion of the Klingon language in the lawsuit would help in a later “substantial similarity analysis,” used to determine if a defendant has crossed the line into copyright infringement. Ranahan, however, cried foul, saying that’s not what Grossman argued for to begin with.
“Plaintiffs are reversing course and suddenly claiming that the individual works they alleged in the [amended complaint] are just pieces for a broader substantial similarity analysis,” Ranahan said. “Plaintiffs cannot invoke the substantial similarity test only when convenient, and cannot complain about parsing out plaintiffs’ claim to the Klingon language when their [amended complaint] does just that.”
Grossman declared that such an analysis was “unnecessary,” Ranahan said, citing an earlier brief from the studios’ attorney. However, that brief talks about the lack of the analysis in the context of Ranahan’s motion to dismiss, saying Ranahan never requested one to be made.
Grossman also appeared to be pushing toward a substantial similarity analysis when talking about why so many individual elements were included in its amended complaint.
“Courts consider the aggregate of large groups of works when performing the substantial similarity analysis rather than considering each work at a time,” Grossman said, while talking about how it believed the court should handle repeated elements, like multiple mentions of the USS Enterprise in copyrighted works.
“The court will later have an opportunity in this matter to address the similarities between the works at issue and to determine whether defendants have infringed plaintiffs’ copyrights,” Grossman wrote. “But defendants’ motion to dismiss does not seek a ruling on the issue of substantial similarity, and defendants’ arguments regarding whether the court should eventually take specific elements alleged to have been infringed into account when it conducts a substantial similarity analysis are, therefore, premature.”
Ranahan did have one word of warning to CBS and Paramount, however: No matter how the judge rules on this particular issue, the war isn’t quite over yet.
“If this claim [of Klingon language ownership] survives,” she said, “defendants intend to investigate ownership of the Klingon dictionary in discovery.”
h/t Janet Gershen-Siegel