The language of Klingon, sometimes to referred to as Klingonese, was created in 1985 by Mark Okrand, and subsequently published in his book The Klingon Dictionary. The language was an instant hit with Trekkies, with many derivative works hitting the market (like 4 Klingon adaptions of separate Shakespeare works) and the founding of The Klingon Language Institute. Additionally, speaking in Klingon is referenced on many television shows in pop culture, and most famously a couple was married with the ceremony conducted entirely in Klingon. Google’s search engine allows users to search in Klingon, and a Klingon language character was even included in Wikipedia’s logo before the 2010 update. Since its inception and use in the Star Trek universe, Klingon has become a household name.
So the question remains of whether Paramount and CBS can claim ownership and copyright of the Klingon language, the necessary component in order to assert a claim of infringement. While CBS owns the copyright of The Klingon Dictionary, Axanar argues that the words themselves are facts and used in a “living language,” and only the compilation’s style and format actually can be copyrighted, not the words themselves. Axanar bolstered its argument with a 26-page amicus brief from The Language Creation Society which drove home the point that constructed languages, as opposed to natural languages, after becoming “living languages” cannot be controlled by a corporation or other legal entity as intellectual property. The amicus brief was rife with tongue-in-cheek Klingon phrases and pot-shots as footnotes of the brief, aimed at Paramount and CBS, including “they are cowards” and “their so-called honor is empty.” While these arguments may not be strong enough for the court to ignore the overwhelming unauthorized use of copyright by Anaxar in all aspects of the film, at least they had a great time taking shots at the plaintiffs!
It seems highly probable that Paramount and CBS will be able to defeat Axanar’s defense of fair use, including their defense on the non-copyrightable features of language. Even though Axanar raised over 1 million dollars in crowdfunding, the probability is high for an injunction blocking production and release. Next time you’re thinking of donating your hard-earned cash to a fan-created derivative work, ask yourself: “Is this going to cause a lawsuit?” If the answer may be yes, take your money elsewhere.