Responses to Language Creation Society Amicus Brief (Axanar)

Responses to Language Creation Society Amicus Brief (Axanar)

Language Creation Society Amicus Brief

The Language Creation Society Amicus Brief was responded to by both the plaintiffs and the defense in the Axanar case, plus the LCS replied. To recap, the Language Creation Society weighed in (they are not a party to this action!) as they felt that any ruling on the copyrightability of the Klingon conlang (constructed language) could directly affect them.

SPOILER ALERT: This analysis is, for the most part, moot, as the amicus was bounced in its entirety. I’ll have a post on the newer documents up as soon as I can get it written. Many thanks for your patience!

As always, we will go through the documents, page by page. These documents are a matter of public record, and they were purchased by me. You have the right to know, and even to take copies of them.

As before, my credentials are here.

Onto the documents, which are combined here into one blog post because they are related and are mercifully fairly short.

Plaintiffs’ Opposition to the Amicus Brief, Page 1

As always, the documents begin with a standard cover page.

Responses to Language Creation Society Amicus Brief

Plaintiff Opposition to Amicus Brief, Page 1

Plaintiffs’ Opposition to the Amicus Brief, Page 2

Plaintiffs begin with objections as to the timing of the amicus, stating that it is not timely (e. g. it should have been filed beforehand), and it is based upon hearsay. Remember, hearsay is any unsworn statement or document being used to prove the veracity of the statements therein. But hearsay can be factual, and there are numerous exceptions to the hearsay rule. The plaintiffs state:

LCS’ request should be denied as
untimely, irrelevant, and procedurally improper. In the alternative, if the Court
grants the request, Plaintiffs respectfully request that they be given the time to
meaningfully respond to the amicus brief.

By the way, one thread which you, gentle reader, should be picking up in this overall narrative is just how passive-aggressive so much of legal motion practice truly is. Delays and last-minute filings are standard operating procedure, in order to make it tougher for the opposition to reply.

Responses to Language Creation Society Amicus Brief

Plaintiff Opposition to Amicus Brief, Page 2

Plaintiffs’ Opposition to the Amicus Brief, Page 3

This page gets further into the heart of the plaintiffs’ argument. While an amicus curiae (friend of the court; e. g. a party not a part of the proceedings but who could conceivably be affected by them anyway) brief is not wholly unknown at the District Court level, it is a far more common sight at the Appellate Court level. And if the matter was at the appellate level (Ninth Circuit Court of Appeals), the LCS would have been late with its filing, to wit:

LCS waited an entire month after the filing of the Motion to
Dismiss, after both sides had already completed their briefing on the motion to file
its amicus brief. Its filing on the night of April 27 was only 8 business days before
the hearing on the Motion to Dismiss. This is untimely. There is no provision in the
Federal Rules or in this Court’s local rules for filing a separate opposition to an
amicus brief, and Plaintiffs do not have enough time to provide a substantive
response, nor would the Court have sufficient time to review that response, in
advance of the hearing.

The filing would have been due on April the fourth, plus it should have been only half of its length, if this matter was at the appeals level.

Now, it’s not, so these arguments will not necessarily be persuasive to Judge Klausner. It is possible that they won’t be.

Responses to Language Creation Society Amicus Brief

Plaintiff Opposition to Amicus Brief, Page 3

Plaintiffs’ Opposition to the Amicus Brief, Page 4

On this page, the plaintiffs note the issues brought up in the amicus are not currently before the court. E. g. the question of the copyrightability of conlangs is not an issue before the court – and it’s not. Plaintiffs further argue:

As Plaintiffs pointed out in their Opposition to Motion to Dismiss, the use of
the fictitious Klingon language in Defendants’ Axanar works is merely one aspect of
the Star Trek Copyrighted Works that can be considered at a later point in the
substantial similarity analysis.

This is what we have been saying for quite a while, that the use of the language, regardless of its copyrightable status, is to be seen as an inextricable part of a derivative whole. Let’s say the character spoke both English and Russian, was a beautiful woman and a highly-trained agent and assassin, in a skintight black catsuit and was good with a rifle? And she kept company with Captain America and Iron Man? Why, she would be the Black Widow. Russian isn’t copyrightable, of course, but the character’s fluency in Russian is a part of that copyrighted character.

Should not the same be the case with a Klingon character speaking the Klingon language, a conlang developed especially for said copyrighted fictional species?

Responses to Language Creation Society Amicus Brief

Plaintiff Opposition to Amicus Brief, Page 4

Plaintiffs’ Opposition to the Amicus Brief, Page 5

Continuing the argument, plaintiffs state:

Defendants have created works that incorporate
Plaintiffs’ copyrighted Klingon characters, and Defendants’ characters, as depicted,
speak the Klingon language. It is the use of the Klingon language in this context
that will be before the Court in performing a substantial similarity analysis, not the
copyrightability of languages in general. In any event, that issue is certainly not
before the Court on the present motion to dismiss.

Plaintiffs then add:

LCS’s primary argument is that, because the fictitious Klingon language has
become a “living language,” it is not copyrightable, or at least is no longer
copyrightable. To support this factual contention regarding whether or not Klingon
is a “living language,” LCS submits numerous hearsay exhibits, none of which are
admissible on a motion to dismiss. Arpin v. Santa Clara Valley Transp. Agency, 261
F.3d 912, 925 (9th Cir. 2001). Based on these exhibits, which are hearsay, outside
of the record in this case, and not appropriate for consideration on a motion to
dismiss, LCS invites the Court to make factual findings as to whether Klingon is a
“living language.”3

The third footnote indicates, in its entirety:

While not attempting to substantively respond to amicus’s arguments, it is
worth noting that LCS’s purported ‘evidence’ of the Klingon language not being
copyrightable includes such things an unauthenticated news report that one couple
“spoke” Klingon while getting married at a Star Trek convention. Under this
theory, had the couple dressed up as Professor Higgins and Eliza Doolittle and been
married in Covent Garden, presumably My Fair Lady would no longer be
copyrightable.

Amusement aside, the plaintiffs’ argument is that the amicus is presenting not only a matter which is not currently before Judge Klausner, but it is also asking for a fact finding (in the form of a ruling) on whether Klingon is a ‘living language’. This is essentially a trip down the primrose path to an utterly unrelated ruling. Will the court consider it? I suspect not, as it is not the matter at hand.

Responses to Language Creation Society Amicus Brief

Plaintiff Opposition to Amicus Brief, Page 5

Plaintiffs’ Opposition to the Amicus Brief, Page 6

Here the plaintiffs reiterate that, if the amicus is allowed to go forward, they need to be given sufficient time to properly respond thereto. As always, the document ends with counsel’s signature.

Responses to Language Creation Society Amicus Brief

Plaintiff Opposition to Amicus Brief, Page 6

Defense’s Response to the Plaintiffs’ Opposition to the LCS Amicus Brief, Page 1

Again, we start off with a cover page.

Responses to Language Creation Society Amicus Brief

Defense Response to Plaintiffs’ Opposition to LCS Amicus, Page 1

Defense’s Response to the Plaintiffs’ Opposition to the LCS Amicus Brief, Page 2

This page makes a rather curious statement:

Plaintiffs are hard-pressed to link their claim to the Klingon
language to an actual character when their FAC does not identify a single
specific Klingon character, let alone any character they claim Defendants
have infringed through using the Klingon language.

Chang, mentioned on page 48 of the Amended Complaint is, you know, a Klingon.

Defense also states:

Indeed, like recipes in a cookbook, while the Klingon Dictionary may be protected from wholesale copying, the individual Klingon words contained therein and expression flowing from the Klingon language system are simply not protected.

The recipe argument seems lifted from mkstewartesq’s argument on the TrekBBS.

Hence that argument by the defense is, to use the technical term, derivative.

Responses to Language Creation Society Amicus Brief

Defense Response to Plaintiffs’ Opposition to LCS Amicus, Page 2

Defense’s Response to the Plaintiffs’ Opposition to the LCS Amicus Brief, Page 3

Here the defense argues that the substantial similarity test should not be used, and they further state:

If this claim survives, Defendants intend to investigate ownership of the Klingon dictionary in discovery.

Found it!

# Full Title Copyright Number Date
[ 1 ] Klingon dictionary : English/Klingon, Klingon/English / by Marc Okrand. TX0003358480 1991
[ 2 ] Star Trek conversational Klingon / presented by Michael Dorn ; featuring the author Marc Okrand. SR0000147386 1992
  • #1 is held by Marc Okrand, Paramount Pictures, and Simon & Schuster (which is owned by CBS).
  • #2 is held by Michael Dorn, Marc Okrand, and Paramount Pictures.

Then at the end the document is of course signed by counsel.

Responses to Language Creation Society Amicus Brief

Defense Response to Plaintiffs’ Opposition to LCS Amicus, Page 3

LCS Response in Further Support of its Amicus, Page 1

And finally we have the amicus weighing in, again starting with a cover page.

Responses to Language Creation Society Amicus Brief

LCS Reply in Support of Amicus, Page 1

LCS Response in Further Support of its Amicus, Page 2

The amicus rightfully states as follows:

The standard for leave to file an amicus brief is simply whether it
will assist the Court.

Then they follow it up in a paragraph which continues on the following page:

The evidence and arguments provided by Amicus Language
Creation Society’s brief will assist the Court in determining the
question of whether the Klingon language is entitled to copyright
protection. It is not premature for the Court to make this
determination at the motion to dismiss stage because this is a legal
question; if a spoken language is not entitled to copyright protection
as a matter of law, then Plaintiffs’ claims are properly dismissed
insofar as they are based on Defendants’ use of the Klingon
language. Amicus does not seek an advisory opinion, as Plaintiffs
allege; Plaintiffs steadfastly assert that they “own” the Klingon
language,1 and there is no need for a fact-intensive “substantial
similarity” analysis, as Plaintiffs insist, to determine whether Klingon
can belong to anyone. This issue is properly before the Court, and
the Court may properly determine at this stage whether Klingon is
copyrightable.

I am not so sure that this argument is on the right track, as it does not appear as if the plaintiffs are seeking a substantial similarity analysis with reference to the Klingon conlang, per se. Rather, it appears as if the substantial similarity analysis is being sought regarding the aggregate of costuming, makeup, prosthetics, plot points, scenes, species, ships, special effects, and, yes, the conlang as they appertain to whether there are questions of fact or of law in this copyright claim versus the defendants Peters and Axanar.

Responses to Language Creation Society Amicus Brief

LCS Reply in Support of Amicus, Page 2

LCS Response in Further Support of its Amicus, Page 3

This was an interesting claim:

The brief of Amicus is of particular assistance to the Court given
the brevity of the parties’ briefing on this question. Among the
motion to dismiss, opposition, and reply, the parties devote fewer
than two pages of discussion on this issue.

Want to know why the Klingon conlang did not get star billing in either complaint or either Motion to Dismiss?

Because it is only one of the many interlocking jigsaw pieces within the infringing aggregate whole.

Responses to Language Creation Society Amicus Brief

LCS Reply in Support of Amicus, Page 3

LCS Response in Further Support of its Amicus, Page 4

Covering themselves, the Language Creation Society then states:

The brief submitted by Amicus is relevant to an issue before the
Court, which has received scant briefing from the parties, that it may
dispose of on a motion to dismiss. The Court should thus grant
Amicus’ application for leave to file its amicus brief and consider the
Language Creation Society’s brief as amicus curiae.

In the alternative, Amicus requests that the court take the Brief
under advisement for use during later stages in the proceedings, as
this issue will need to be dealt with (unless Plaintiffs drops their claim
to own Klingon) at some point in this case.

Not necessarily. The overall philosophical question as to whether a language can be owned at all is not on the table. The only issue – maybe – is whether Klingon is owned by the Star Trek copyright holders.

Responses to Language Creation Society Amicus Brief

LCS Reply in Support of Amicus, Page 4

LCS Response in Further Support of its Amicus, Page 5

This page is just the certificate of service for the document.

Responses to Language Creation Society Amicus Brief

LCS Reply in Support of Amicus, Page 5

What’s Next?

We wait for June 8th! Furthermore, we recently received a ruling from Judge Klausner, rejecting this amicus and denying the Second Motion to Dismiss. The parties are being encouraged to engage in settlement talks, as that is standard operating procedure.

As always, we will do our best to keep you informed in a timely fashion, but schoolwork comes first for me (Capstone project this summer, yo’).

Got questions? Please feel free to ask them in the Comments section. Thank you for reading!

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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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