Things that can be copyrighted: literary works, films, images, music – general content that is original and appears in a fixed form.
Things that can’t be copyrighted: names, words, dance moves, fashion – things that are considered factual, functional and have no original authorship.
So, what about language?
Well, words themselves do not fall under copyright as they are considered building blocks for further creative expression, very much like the dance moves that make up a choreographed piece or the music notes that make up a composition. You can copyright a dictionary as these can be original in terms of layout and sentence examples given, and words, names and catchphrases that identify brands, like Hoover, Google, Vaseline, can be protected by trademarks which means that they can be used generically by consumers but not their competitors.
So, we know that individual words do not fall under copyright, but what about a language? Language in general is something that develops and changes over centuries and is constantly evolving. It cannot be attributed to a single creator and a certain language can vary depending on individuals and regions. This means that no one person could claim copyright over a living language.
But what about fictional languages like Tolkien’s Elvish, or Star Trek’s Klingon? These languages CAN be attributed to a single creator and are often fixed in some kind of physical form. Can these be copyrighted? Are there any cases of copyright infringement of a fictional language? Copyright around constructed languages, or conlangs, is something that has no real legal precedent.
The best-known case, which was settled out of court, is that of Paramount Studios vs Axanar over copyright violation around using names like Star Trek and Star Fleet, similar uniforms, and using the Klingon Language. Klingon is the fictional language of a fictional race of aliens in the Star Trek Universe, which was originally created by linguist Marc Okrand, the rights of which are owned by Hollywood film studio Paramount Pictures. Over the years, Paramount has turned a blind eye to the countless Star Trek fan fictions which have been created, and even officially licensed Klingon Language Institute to facilitate the scholarly exploration of the language. However in 2015, when Axanar Productions raised over $1 million via crowdfunding to produce a professional Star Trek fan film, Paramount filed a lawsuit against them. This was ultimately settled out of court, but many people were surprised by Paramount’s decision to pursue this case, as Klingon is generally seen as a living language and a tool for fans to communicate and express ideas.
When we spoke to the Language Creation Society about this case and Joseph Windsor, President of the Language Creation Society, said “At that time, the LCS filed an amicus brief as a friend of the court expressing our opinion that a language cannot be copyrighted, though creative work in a constructed language can be.”
(You can find information about this brief here).
It goes without saying that you can’t take any original work published or produced in a fictional language and pass it off as your own. These works are protected by copyright. But what about if you want to write a poem in Elvish or a short story in High Valyrian? It would be your own work using words from another language where the vocabulary and grammar is available for you to use. You can even actively learn these languages like you would learn French or Spanish through the language learning platform Duolingo. Volunteers fluent in conlangs helped create the Duolingo courses that include Klingon, Esperanto and High Valyrian, but they have also been licensed by the rights holders. This highlights the fact that the rights holders of these languages are aware that there is active interest in learning and using these languages, and so they should be prepared for fans to put their new language skills into practice.
In order to find out more about conlangs and copyright ownership, we spoke to David J. Peterson, the language creator behind fictional languages created for highly popular television shows and films with huge fanbases that include Game of Thrones and Thor: The Dark World, to find out what he thought:
Who owns the copyright to the languages you have created?
“All the work I do is work-for-hire, so if a language can be copyrighted, the various parent companies (HBO, Syfy, Showtime, etc.) own the copyrights. It is my opinion and the opinion of the Language Creation Society that a language cannot be copyrighted, created or otherwise, and so those elements of the contract are, again, in my opinion, entirely unenforceable.”
What would happen is someone were to publish a poem or produce a film using a language you have created (e.g. Dothraki)?
It's already happened, and the answer is...nothing. These works exist, and life goes on. There's been nothing created that is so popular or lucrative that it has drawn the attention of the rightsholder, so there haven't even been any legal challenges. Theoretically, anyone can publish anything using any language I created, and, in my opinion, neither I nor anyone else should be able to do anything about it. They could even publish a grammar of the language. Naturally, if they did so, the rightsholder would sue, but I'm honestly not sure they would win the day. The best they could hope is to force the person to settle because they simply don't have enough money to see it through. There are, of course, copyrightable elements within the languages I create (like the name Dothraki, and perhaps some character names, and maybe the name of a key item like an arakh), but the language itself should not be copyrightable. Furthermore, there's no real way to say that what they produce will be the same language. If they change the word for "apple", for example, is it the same language? If they misunderstand the grammar and produce something that I would call ungrammatical, is it the same language? Is it even ungrammatical? After all, if they're using the language and using it successfully, then what they're doing is grammatical—it's just different from what I'd do. Imagine where someone published a grammar of Klingon and they changed several of the words and totally misunderstood how the grammar was supposed to work. Star Trek fans and Klingon fans might know and object, but what if it sells well, and thousands of people start learning that "incorrect" grammar and then start using it with each other? What could one say except that it's a dialect—or a remix?
As you start to dig into some of these issues, I think it should become clear rather quickly that the idea of copyrighting a language is absolutely a non-starter. It doesn't even make sense at any level.
Without any clear-cut examples or precedents, it seems that that even though there are copyright holders of fictional languages, but copyright is only ever really enforced in instances of monetary gain. As Peterson said, it’s almost impossible to stop fans using and developing these languages as part of their own creative expression and it would be a shame to stop people engaging with content in this way as long as they are not directly copying excerpts of published content.
On the whole, the idea of copyrighting a fictional language is still a grey area. Perhaps the question we should be asking is "should the creator/owner of the language enforce the copyright?" rather than "is the language itself under copyright?"
What do you think?
If you find the topic of copyright and conlangs interesting, here are some other articles we found interesting when doing research:
- LCS Memorandum concerning IP Protections for Constructed Languages: http://conlang.org/cms/wp-content/uploads/Dentons-Conlang-Memo-public-version.pdf
- To boldly go where no copyright holder has gone before: http://ipkitten.blogspot.com/2016/05/to-boldly-go-where-no-copyright-holder.html
- If you are a ‘Game of Thrones’ fan, this app will teach you how to speak in High Valyrian: https://www.cnbc.com/2019/04/14/game-of-thrones-fans-this-app-teaches-you-to-speak-in-high-valyrian.html
- Basics of Copyrighting Conlangs: https://artistiklicense.wordpress.com/2017/08/17/basics-copyrighting-conlangs/
- the Loglan-Lojban Dispute: https://mw.lojban.org/papri/the_Loglan-Lojban_Dispute
Disclaimer: Please note that this blog post should not be considered as legal advice and should not be relied on when determining whether a particular use of work or fictional language would infringe copyright, nor is it the advice or stance of CLA. It is always best practice to seek the permission of the intellectual property owner.
This blog was originally published on our Further Education blog here: cla.co.uk/blog/further-education/fictional-language-copyright