If you’ve had a chance to read more about Judge R. Gary Klausner’s ruling Tuesday, you might be surprised that not everything you’re reading in the mainstream press about the copyright infringement lawsuit against a Star Trek fan-film is accurate.
In fact, a number of publications in the last couple weeks or so have made the suit all about the Klingon language. As if the primary sin of “Star Trek: Axanar” was using the Klingon language without the permission of CBS Corp. and Paramount Pictures.
The Language Creation Society, some small California-based organization that seems to hire any lawyer willing to work pro bono, capitalized on these misleading reports by injecting themselves into the lawsuit, claiming to be the protectors of the Klingon language.
But CBS and Paramount are not suing Axanar Productions and its principal Alec Peters over the Klingon language. They are suing Axanar and Peters for copyright infringement of a number of different elements, when put all together, create what Klausner’s court has called the “Star Trek works.”
It’s not that Axanar is just using a pointy-eared guy. It’s not that they are just calling some alien species a Vulcan. It’s not that they have a group of planets working together calling themselves a Federation. It’s not that they happen to have a spaceship called the USS Enterprise. It’s all those elements put together. That’s where CBS and Paramount have an issue (that, and the fact that it appears Axanar has commercialized its fan-film with a “donor store,” an alleged for-profit studio, and even some scattered talk that they would create a paid-subscription streaming service).
CBS and Paramount are putting together what is known as a “substantial similarity analysis.” So what is that exactly?
Usually, when you would infringe on a copyright, it would be taking, say, the exact sentence I wrote here word-for-word, and publishing it somewhere else. I can clearly demonstrate that that sentence is a duplicate of mine, and all I have to do is prove that I wrote it before you.
But it gets a little more complicated when we talk about derivative works, where it’s basically based on the same source.
When I was in first grade, I created this story about a frog who was ostracized by his peers because his tongue was longer than all the other frogs. It was a story I never realized until my sixth-grade advanced reading class, where we created children’s books. I took this story that had been rumbling around in my young pre-pubescent mind for years, and made it into a short story. It basically had the frog leaving his home, looking for somewhere else go to go, being rejected everywhere, before finding this one colony who was scared of a mean, wild boar.
This frog decided to confront the boar, and found out that he had some pebble stuck in his foot. The frog used his long tongue to dislodge the pebble, which made the boar happy, and it helped him become accepted into his new community.
OK, I was no Dayton Ward in sixth grade … but not a terrible story, right? Right?
Anyway, let’s say I had published it, and it hit a bestsellers’ list. Maybe even a movie was made that bored people to tears.
But then you came along after all that and decided to publish your own book, that had a frog with a tongue too long, ostracized by his peers, used his tongue to save his new community from a predator, and lived happily ever after.
It’s not my story word-for-word, and you might even have changed some elements of it. Like maybe you use a bear instead of a boar, and a thorn instead of a pebble.
Is that still copyright infringement?
That’s where the substantial similarity analysis comes in. I obviously don’t own a copyright on frogs, or frog tongues, or boars, or pebbles, or even being ostracized. No one owns copyrights on that. But, if you put all that together, it creates an expression that is, undoubtedly, mine. And if your expression of those things are “substantially similar” to what I created, you could be on the hook for damages in a copyright infringement case.
It’s not a perfect system. And it does require some subjective judgement. But it’s an effective tool, at least, in protecting those who create from those who would rather “borrow.”
That’s the same thing in the Axanar case. Despite some of the mainstream and non-Star Trek news reporting, CBS and Paramount are not claiming to own the word “Vulcan,” or that only they can use pointy ears, and maybe not even the Klingon language. What they do establish, however, is that when you put all these disparate variables into a specific expression — like a pointy-eared logical, raised-eyebrow, emotion-suppressed alien you call a Vulcan — they own that combined expression.
You can make someone have pointy ears all you want. You can create a character with raised eyebrows all you want. You can even create an alien with suppressed emotions. But if you put all those variables together and call him a Vulcan — then you might get bit in the substantial similarity analysis.
The Language Creation Society has no case here. They never cared if there was a case. They saw an opportunity to get publicity for their cause, and they seized on it. I don’t blame them, I probably would too for my cause if I had a chance.
But at the same time, the Language Creation Society is only helping to perpetuate misinformation about this case, partially led by misreporting, or misleading reporting. Fighting over the Klingon language is sexy, especially to a non-Star Trek audience. Fighting over what is collectively Star Trek and what isn’t, not so sexy from a mainstream news standpoint. So if you were that editor of that newspaper or magazine, which would you pick?
It’s just not accurate. Once this case is over, we still won’t have a definitive answer on if the Klingon language is copyrighted, because the copyrighted status of the Klingon language is not in question. The Axanar defense team tried to make it an issue, but failed. They got some help from the Language Creation Society, but they failed.
Even Klausner has made it clear: This case is not about the Klingon language. It’s not about whether you can copyright pointed ears.
It’s about whether or not “Star Trek: Axanar” and its related works like the “Vulcan scene” and “Prelude to Axanar” infringe on the copyrights owned by CBS and Paramount. Even if the studios removed the Klingon language tomorrow just to be nice, their case would not change.
When you see someone misreporting this, take a moment to correct them. Tell them what the case is really about, and that only the uninformed believe it’s anything different.
I don’t know if the Klingon language can be copyrighted. On one hand, it’s a work-for-hire, as Marc Okrand already admitted. I’ve done a lot of work-for-hire, and usually I don’t own the copyright of what I created (nor does it become public domain) unless I had a prior agreement.
On the other hand, I think there is a solid case that a language — even a fictional one — could be considered a system, and not copyrighted.
But until someone actually challenges whether Klingon can be copyrighted in the courts with a direct lawsuit, it’s a debate I’ll reserve for another time.