Who owns a language?
Big studios will let a lot of things slide when fans make their own stories. However, when fan productions start to look like pro productions, when they have million-dollar budgets, that becomes a different matter. Lawyers may start going after the fans for using their characters, their settings — even their languages.
Paramount and CBS have taken legal action against Alec Peters and Axanar Productions for alleged copyright infringement. The fan film Axanar is an unauthorized prequel to “Whom Gods Destroy,” an episode of the original Star Trek series. A Kickstarter campaign to fund it raised a million dollars; we’re not talking about a living-room production. The short Prelude to Axanar, created to help raise the funds, has impressive production values.
CBS and Paramount included a list of copyrighted works in their complaint. One of these is “Klingonese or Klingon, the native language of Qo’noS, [which] was first spoken in Star Trek — The Motion Picture in 1979. It was used in several works moving forward, including Star Trek III The Search for Spock.”
Can a language, even an invented one, be a copyrighted work? Can you violate it by writing dialogue in the language? There’s a community of Star Trek fans who devote themselves to the Klingon language, writing articles in and about it. Some will speak only Klingon when they’re in character. Are they plagiarists?
This is a harder call … are languages protected by copyright? That’s never been squarely resolved in any of the cases. My instincts tell me the answer is “no,” relying on the same provision of the act that knocks out Stardating; a language, after all, is nothing more (or less!) than a “procedure, process, system, or method” used by human beings to communicate with one another, and therefore outside the realm of copyright protection.
But there’s considerable uncertainty on this score, and it’s a question of some importance in copyright law. When Oracle sued Google for infringing its copyright in Oracle’s API — its “application programming interface,” the interface specifications that allow computer programs to communicate with one another, Google raised a similar argument (that APIs are basically “languages” that can’t be copyrighted because they are just “systems or methods” used by computers to communicate with one another).
Made sense to me — but not to the Federal Circuit, which ruled in Oracle’s favor back in 2014.
However, the court didn’t say that the Java language itself could (or couldn’t) be copyrighted. The European Court of Justice, the highest court of the EU, has stated definitively that a programming language isn’t subject to copyright. There doesn’t appear to be a comparable ruling either way from the US Supreme Court.
Elves can be as hostile as Klingons. J. R. R. Tolkien invented the Elvish languages Quenya and Sindarin, which he used in Lord of the Rings. Lawyer Theodora Michaels reports receiving a response from a Tolkien estate lawyer which asserts, “In relation to Quenya and other Elvish languages, the Tolkien Estate takes the position that these are copyright works and, accordingly, a licence is required for any uses of them which would otherwise amount to copyright infringement.” It doesn’t appear, though, that any court has ruled on their claim.
Ideas aren’t copyrightable as such. Only their expressions can be copyrighted. A dictionary can be copyrighted, whether it’s of Swedish or Klingon. Creating another dictionary of Swedish is legal, as long is it doesn’t obviously lift from an existing one. If you create your own dictionary of Klingon, you’d be hard pressed to argue that you didn’t lift from The Klingon Dictionary, but that’s a different matter from saying you can’t use the language.
Michael Adelman has provided a detailed look at the question of language copyright in the Harvard Journal of Law & Technology. He argues against letting languages be copyrighted:
The social value in any language comes from its ability to facilitate communication. 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.
But it would be impossible to say exactly which copyrighted work of Tolkien’s would be infringed by a student of Elvish languages who writes her own original poem in Quenya. Tolkien cannot hold a right to all compositions in Quenya any more than Noah Webster of Webster’s Dictionary can hold a right to all compositions in English.
Inventing a language and then saying people can’t communicate in it defeats its purpose. People who try to copyright one need to be told, “peDoghQo’!” (Don’t be silly!)