United States: Is Paramount Going Where No Copyright Holder Has Gone Before?

Hollywood is often referred to as the land of make-believe. A federal lawsuit working its way through a Los Angeles federal court may decide the extent to which what Hollywood "dreams up" for its motion pictures and television shows is entitled to copyright protection. The case is Paramount Pictures Corp. v. Axanar Productions Inc., et al., in which a motion picture studio is seeking to prevent a Star Trek fan from producing his own works (which the defendant refers to as "mockumentaries") incorporating characters, uniforms and other story elements from the Star Trek television and motion pictures series. What makes this case noteworthy is that Paramount raises an issue that has never been squarely decided by any court—which is whether Paramount's copyrights in the Star Trek series extend to the Klingon language that Paramount created for the series.

As even casual viewers of the Star Trek series will recall, many of the adventures involved the crew of the U.S.S. Enterprise battling the Federation's arch enemy, the Klingon Empire. What viewers may not know is that Paramount was not content merely to use made-up sounds for the language spoken by the Klingons. Instead, Paramount hired a linguistics professor who ultimately developed the underlying grammatical features and vocabulary necessary to create an entire Klingon language. With Paramount's consent, the linguistics professor published the first Klingon dictionary in 1985. 

Given that the Klingon language was specially created for Paramount as part of the Star Trek series, Paramount would seem to have a strong case that the Klingon language is included within the scope of Paramount's copyright. However, the Copyright Act has long distinguished between extending copyright protection to an author's specific use of language to express one's ideas and extending copyright protection to an entire language, method or system. Indeed, the Copyright Act specifically provides that it does not extend protection to "any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated or embodied in such a work." 17 U.S.C. § 102(b). Further, the Copyright Act's merger doctrine holds that where an idea can be expressed in only a limited number of ways, the author's expression of those ideas cannot be copyrighted, as doing so would amount to extending copyright protection to the idea itself. Further, in the seminal case of Baker v. Selden, 101 U.S. 99, 101 (1879), which involved whether a system of bookkeeping was copyrightable, the Supreme Court ruled that while the author's particular expression of the bookkeeping system was protectable, the system itself was not, and therefore the author could not prevent others from using the system.

In response to Paramount's complaint, the defendants filed a motion to dismiss in which they sought to strike Paramount's copyright claim regarding the Klingon language. Counsel for the defendants noted that Paramount was not contending that the defendants infringed any of the actual Klingon dialogue from the Star Trek series. Instead, the defendants argued that Paramount was trying to impose copyright liability on their independently created dialogue solely because they used the Klingon language to communicate their expression. Not surprisingly, counsel for Paramount opposed the defendants' motion. Paramount argued that the only relevant issue to be considered in the context of a motion to dismiss was whether the complaint sufficiently alleged facts to put the defendants on notice of the elements of the plaintiff's infringement claim. As to whether the Klingon language was or was not copyrightable, Paramount argued "this issue is not yet before the Court—and certainly is not an issue to be addressed on a motion to dismiss."

This week, the district court denied the defendants' motion to dismiss. Judge Gary Klausner had little difficulty concluding that Paramount had pled its claim for copyright infringement with sufficient particularity to put the defendants on notice of the elements of the defendants' works that Paramount believed were infringing. As a result, the court wisely decided to leave for another day the issue of whether Paramount's copyright extended to others' use of the Klingon language.

Indeed, it is not entirely clear that the court will ever have to decide this issue—at least in the way that the defendant sought to present it to the court. After all, this is not a situation in which the defendants created a nonStar Trek work using the Klingon language—such as creating a Klingon-language version of Shakespeare's Hamlet or even establishing a Klingon Language Institute to promote the study and use of the Klingon language, which others have done. Instead, the issue here is whether the defendants' use of the Klingon language in the context of their works, which are avowedly all about the Star Trek series, infringes Paramount's copyrights.

Whether the defendants will ultimately prosper from their challenge to Paramount's copyright remains to be seen. However, defendants will presumably live long enough to raise the issue again for the court's determination. Stay tuned.

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