The law isn’t always as dry and boring as a layperson may imagine, especially in Amicus briefs. Take, for example, this Amicus brief for Paramount v. Axanar
Written by Marc Randazza of Randazza Legal Group, PLLC, the brief contains both headings and entire phrases written in Klingon script. This is not simple novelty – the case itself concerns, in part, ownership of the copyright for the Klingon language.
While a longer history of the language can be found in the brief and its cited references, the two-sentence version is that Klingon was invented for the movie Star Trek III: The Search for Spock by the linguist Marc Okrand. The language has since grown and expanded, aided in no small part by both the dedicated fandom and by the 1985 Klingon Dictionary published shortly after the release of Stark Trek III. Today, the language is probably the best-known fictional constructed language – even people who don’t car for Star Trek almost certainly know the language exists.
Paramount’s complaint claims more than just the language, but the Randazza brief focuses on an interesting copyright issue: namely, whether a constructed language can be copyrighted in its entirety. This isn’t just a novelty case for fans of Sindarin, Dothraki, or even Esperanto fans – computer programming languages are constructed languages, too, and a broad ruling could affect the way that future programming languages are developed (imagine a world where Bell Labs claims that all programs in C are infringing derivative works, or where Mozilla asserted the right to sue for any unauthorized use of javascript). Even a narrow ruling could chill the future development of science fiction or fantasy constructed languages, especially fan works.
The question hinges on the idea/expression dichotomy in copyright law. In broad terms, an expression may be copyrighted, but an idea may not. Compare, for example, the expression “For never was a story of more woe Than this of Juliet and her Romeo” to the idea “Boy and a girl fall in love, only to die in an improbably tragic manner.” The latter is an idea which anyone is free to use, while the former is an expression of that idea which could be protected. That’s easy enough to understand when separating story concepts from written passages, but in the case of the Klingon language, the entire Klingon Dictionary is an original work – and thus, any later works in the Klingon language are a derivative of that work.
Randazza’s argument really deserves to be seen in its entirety, but the short version is that the language is a “procedure, process, or system for communication” rather than an expression in and of itself. This would mean that the language’s vocabulary and grammar are facts or ideas rather than protectable expressions in and of themselves. A similar rule applies to computer source code; the work (i.e. the source code) is technically an original literary work under U.S. copyright law, but the core idea of the code (in other words, its function) can only be expressed by using certain functional phrases which are not protectable. In practice, infringement of computer code has to involve a lot of unnecessary copy-pasting before a case could be viable.
Despite Paramount’s assertions, it seems unlikely that an entire language could be protected, even an artistic, constructed language like Klingon which has its own dictionary. The individual components of the language, its words, are too narrow to be protected. For example, it would not be infringement to state that the Klingon word Qapla’ means “success” or “victory”, even though the entire word was reproduced. That statement is merely a fact, not an expression, no different from explaining the meanings of other fictional words and phrases like grok, fyunch(click), or lok’tar ogar. Further, a work is only created when it is fixed in a copy or phonorecord for the first time, per 17 U.S.C. 101. A language composed of these individual constructed words and a set of grammar rules does not have a fixed expression in its entirety, only in its published forms.
Nevertheless, the Klingon Dictionary as a whole is an expression, even though the expression comes from the manner in which its authors list and express the factual definition of each constructed word. One possible argument would then be that any work in the Klingon language would be a derivative work of that dictionary. This would have the same practical effect as copyrighting constructed languages themselves, so long as the authors of the language wrote a corresponding dictionary. However, this seems unlikely to succeed. It suggests a much broader definition of “derivative work” than copyright law ordinarily uses, one that encompasses even the purely functional, non-expressive aspects of the work (the use and meanings of the vocabulary and grammar) rather than the expressive content (the sample sentences and expression of definitions in a dictionary).
In any event, it’s a case worth following whether you’re an aspiring writer or just an avid fan of speculative fiction.