Language Creation Society Amicus Curiae Brief (Axanar)

Language Creation Society Amicus Curiae Brief (Axanar)

Language Creation Society Amicus Curiae Brief

The Language Creation Society amicus curiae brief is a means for an interested party, who may be affected by a lawsuit, to insert their opinions and knowledge into a case.

Note: the Language Creation Society has not sued anyone.

Seriously, if anyone is claiming the Language Creation Society has taken sides in this matter, that information is incorrect. An amicus curiae is a friend of the court brief.

Note: I had to shrink the images for Pages 1 – 31 as they were enormous. If anyone needs a bigger copy, please let me know via the Comments section, below.

As usual, we will go through this document page by page. My credentials are here. The Language Creation Society’s own take on this matter is here.

One thing to keep in mind, as we get started, is that Klingon is not a naturally occurring or evolving language (although that does not matter too much herein). This document makes the argument that it is a system, much like an alphabet or a filing system, and systems are (this is a true statement) not copyrightable.

However, the real point is, the use of Klingon, a system solely associated with Trek (aside from the Welsh UFO statement, a Swedish wedding, and the like), is yet another aspect of copying by the Axanar defendants. It shows a pattern of deliberate copying by the defense and an intent to make a competing product, and that will be a point against Axanar regardless of the question of whether Klingon itself is copyrightable.

I realize folks may feel it’s a distinction without a real difference. I’m going for the aggregate (and so are CBS and Paramount) – e. g. you have an actor wearing a movie-worn costume (in part), with matching makeup and prosthetics, with a near-identical naming convention, who speaks a language which is a system inextricably intertwined with the IP in question. This is more of the pattern of copying, just as wearing the gold command shirt with a cowl neck and insignia is, even though the cowl neck collar and the gold color and the shirt itself are all aspects of useful articles which are also not subject to copyright.

Further, I want to make it clear that I respect the creation of this rather complicated system and the hard and fascinating work of the Language Creation Institute. What follows are my opinions and I trust no one feels any malice is intended.

Onto the brief. For all items which show up as squares (like this: ), this is due to brief’s usage of Klingon script, much of which does not survive the act of copying and pasting. Also, this is a merged document; some of the pages are the brief and then the remainder is other related documents and exhibits.

The Brief

Page 1

The amicus has retained the Randazza Legal Group; more specifically, partner Marc Randazza, who specializes in First Amendment law. Mr. Randazza has a rather interesting background, and there is even a Wikipedia page about him. As always, if you are in search of additional information on anyone involved in this case, Google is your friend.

As the brief states:

This brief is not submitted in support of any party, but
narrowly supports Defendants’ Motion to Dismiss for the limited issue
of Plaintiff’s claim of copyright in the Klingon language.

This is a very narrow argument being made. The Language Creation Society is taking no position whatsoever on the rightness or wrongness of CBS and Paramount’s claims as against Axanar and defendant Peters.

Language Creation Society Amicus Curiae Brief

Language Creation Society Amicus Curiae Brief, Page 1

Page 2

The first page’s opening information continues on this page:

Specifically, Amicus argues that the Klingon language, in which Plaintiffs assert
copyright, is not and cannot be protected under copyright law and
is part of the public domain.

The argument continues (and spills over into the following page):

It is Amicus’ position that, under existing copyright law, a
language is not entitled to copyright protection. Furthermore,
conlangs can only develop and spread in the absence of copyright
protection over the language’s grammar rules, graphemes, and
vocabulary. If an individual possesses a monopoly over an entire
language, then he can control not only who may communicate in
that language, but also how the language develops (if at all). By
keeping a tight leash on which grammar rules are changed or which
words are added, the language’s creator can prevent the
democratic process of linguistic development that typifies
languages spoken today. Doing this may help the creator turn a
profit, but it stymies growth and forecloses a significant number of
artistic works written and performed in that language.

Page 3

The brief states, with reference to the amicus filing:

Counsel for Amicus has met and conferred with counsel for all
parties. Defendants do not oppose the filing of the attached amicus
brief, and Plaintiffs do not consent to its filing.

These positions are not altogether surprising, as the defense would be looking for any sort of even minor ally, and the plaintiffs would be looking to avoid distractions and also maintain their copyright in this conlang (constructed language).

Page 4

This is just counsel’s signature page.

Page 5

Then there is a certificate of service, noting the documents were properly filed, which is also signed by counsel.

Page 6

This is the cover page to the brief itself.

Page 7

The brief opens with a table of contents. The main points to be covered are:

CREATION AND DEVELOPMENT OF THE KLINGON LANGUAGE
COPYRIGHT LAW DOES NOT PROTECT SPOKEN LANGUAGES
THE INTELLECTUAL PROPERTY CLAUSE WOULD NOT PROTECT A LANGUAGE

Page 8

This page begins the table of authorities for the document.

Page 9

The table of authorities continues on this page.

Page 10

This is the next page of the table of authorities.

Page 11

This page concludes the table of authorities.

Page 12

Beginning the argument in earnest, the brief opens with an introduction written in English (the brief refers to the language my blog post is written in as ‘Federation Standard’) and in Klingon lettering, providing a handy transliteration in a footnote.

A second footnote on that page makes a rather interesting assertion:

2 Mr. [Marc] Okrand himself has asserted that the Klingon language,
tlhIngan Hol, was received by him from a captured Klingon named
Maltz. See Okrand, Marc, The Klingon Dictionary (1985). Thus,
Plaintiffs may be stopped from asserting otherwise for the purposes
of this litigation. See Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1075
(2d Cir. 1992) (author who disavowed inventing enneagrams
publicly cannot claim invention inconsistently to improve a litigation
position).

Hence, essentially, a fictional origins statement is presented in order to bolster an argument against copyrightability. Fun fact: the enneagrams mentioned in the Arica case, supra, are cited in RationalWiki and denounced as a ripoff of Buddhism. But the narrow cited portion of the ruling makes sense, e. g. that claims of invention (or, really, of any other germane facts in any dispute, now that I think about it), cannot be altered in order to more conveniently, positively, inexpensively, or more rightfully frame a litigation position.

Kind of like, I don’t know, claiming a script is locked and ready and then that it doesn’t exist at all?

Yeah, something like that.

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Janet Gershen-Siegel

Jespah (Janet) is our Social Media Director. She has her Master's in Communications (Social Media) from Quinnipiac University and is one of the Klingons of Long Island. She's a retired lawyer, too.

She's also a published author (Untrustworthy, published by Riverdale Avenue Books; QSF Discovery 2 Anthology, published by Mischief Corner Books; and The Longest Night Watch Anthology 1 & 2, published by Writers Colony Press), and a prolific fan fiction writer. You can find her adding her fanfiction to our forums, or live tweeting our show.

We understand that she can be bribed with pie.
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Janet Gershen-Siegel

Jespah (Janet) is our Social Media Director. She has her Master's in Communications (Social Media) from Quinnipiac University and is one of the Klingons of Long Island. She's a retired lawyer, too. She's also a published author (Untrustworthy, published by Riverdale Avenue Books; QSF Discovery 2 Anthology, published by Mischief Corner Books; and The Longest Night Watch Anthology 1 & 2, published by Writers Colony Press), and a prolific fan fiction writer. You can find her adding her fanfiction to our forums, or live tweeting our show. We understand that she can be bribed with pie.

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