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Plus, the 19th-century Supreme Court case that is being called upon to knock the contention that the language of Klingon is copyrighted.
The lawsuit brought by Paramount and CBS over Axanar, a crowdfunded Star Trek film, continues to chart a course for exploration of the intellectual property galaxy.
To quickly review, Star Trek rights holders, despite tolerating decades of fan-made works, sued Axanar producers led by Alec Peters in December. This drew a motion to dismiss that called upon Paramount and CBS to do a better job describing the copyrighted elements allegedly being infringed. Two weeks ago, Paramount and CBS did just that with a well-decorated amended complaint that claimed ownership to such things as the pointy ears of the Vulcans, the gold shirts and triangular medals that Federation officers wear, and even the language of Klingon.
It's now time for another attempt by the defendants to stop the lawsuit at the doorstep — and there's plenty to chew. Axanar Productions repeats its contention that the claims are not sufficiently detailed to survive, plus argues that a potential fan film that hasn't been produced yet makes for a premature lawsuit.
“Despite Plaintiffs’ allegation that scripts exist, Plaintiffs have not plausibly alleged that any version of the script violates their rights, let alone the film itself, which does not exist in a fixed, tangible form,” states the defendants' motion, authored by Erin Ranahan at Winston & Strawn.
That itself makes for a watchable legal showdown given the inconsistency of past rulings on the topic of unrealized film scripts.
But this being Star Trek, it's hardly the highlight of the latest brief. Instead, the defendants tackle each of the elements that Paramount and CBS are claiming are theirs to copyright.
Take Vulcans, the famous species best known for their adherence to logic, pointy ears and “V” shaped salute. If the classic sign-off by Vulcans like Spock is “live long and prosper,” Ranahan writes that Vulcans have indeed lived long. “In Roman mythology, Vulcan is the god of fire and metalworking,” she writes. “The first known use of ‘Vulcan' was in 1513.”
In other words, the defendants are arguing this element belongs in the public domain. It's reminiscent of the time that the producer of a mockbuster titled Age of the Hobbits unsuccessfully tried to point out that “Hobbits” was a reference to a real-life human subspecies, Homo Floresiensis, discovered in Indonesia.
No matter. Axanar Productions also says that the Vulcans' appearance — specifically the “pointy ears” — “is not original to Star Trek, and has appeared in many fictional fantasy works depicting imaginary humanoid species predating Star Trek, including, but not limited to, vampires, elves, fairies, and werewolves, as well as in many animals in nature.”
The motion to dismiss attempts to knock other elements as unprotectable. Here are some examples of the arguments: The gold shirts worn by Starfleet officers can't be copyrightable because they fall under the “useful article” doctrine. (See our discussion of Power Rangers costumes.) Triangular medals fail as a protectable element because common geometric shapes can't be copyrighted. The “Starship Enterprise” is too short a phrase to be protected. The Federation logo is adapted from the United Nations flag. Transporters have existed in science fiction since 1877, warp drive since 1945, phasers since H.G. Wells' War of the Worlds in 1898.
And, of course, all this (see the full motion here) wouldn't be complete without some retort on whether the Klingon language is subject to copyright. For this, the defendants manage to cite a Supreme Court case that dates back to 1879 (!), Baker v. Selden, which presented the question of “whether the exclusive property in a system of book-keeping can be claimed, under the law of copyright, by means of a book in which that system is explained.”
According to the defendants, “The Klingon language itself is an idea or a system, and is not copyrightable. As the Supreme Court held in the context of a system of bookkeeping, although copyright protects the author’s expression of the system, it does not prevent others from using the system. Baker v. Selden, 101 U.S. 99, 101 (1879). The mere allegation that Defendants used the Klingon language, without any allegation that Defendants copied Plaintiffs’ particular expression of that language, is therefore insufficient to state a claim for copyright infringement as to any protected element.”