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BRIEF of AMICUS CURIAE 13 Plaintiffs, Date: May 9, 2016 14 Time: 9:00 AM V Case 2:15-cv-09938-RGK-E Document 35-1 Filed 04/27/16 Page 1 of 26 Page ID #:322 1 RANDAZZA LEGAL GROUP, PLLC Marc J. Randazza (SBN 269535) 2 [email protected] Alex J. Shepard (SBN 295058) 3 [email protected] 4035 S. El Capitan Way 4 Las Vegas, NV 89147 Telephone: 702-420-2001 5 Facsimile: 305-437-7662 [email protected] 6 Attorneys for Amicus, 7 Language Creation Society 8 IN THE UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 PARAMOUNT PICTURES Case No. 2:15-cv-09938-RGK-E CORPORATION, a Delaware 12 corporation; and CBS STUDIOS INC., a Delaware corporation, BRIEF OF AMICUS CURIAE 13 Plaintiffs, Date: May 9, 2016 14 Time: 9:00 AM v. Judge: Hon. R. Gary Klausner 15 Courtroom: 850, 8th Floor AXANAR PRODUCTIONS, INC., 16 a California corporation; ALEC PETERS, an individual, and 17 DOES 1-20, 18 Defendants. 19 20 21 22 23 - i - Brief of Amicus Curiae 2:15-cv-09938-RGK-E Case 2:15-cv-09938-RGK-E Document 35-1 Filed 04/27/16 Page 2 of 26 Page ID #:323 1 TABLE OF CONTENTS 2 3 TABLE OF AUTHORITIES .............................................................................. III 4 MEMORANDUM OF POINTS AND AUTHORITIES ........................................ 1 5 1.0 INTRODUCTION .................................................................................... 1 6 2.0 CREATION AND DEVELOPMENT OF THE KLINGON LANGUAGE ..................... 3 7 3.0 COPYRIGHT LAW DOES NOT PROTECT SPOKEN LANGUAGES ..................... 7 8 4.0 THE INTELLECTUAL PROPERTY CLAUSE WOULD NOT PROTECT A LANGUAGE 14 9 5.0 CONCLUSION ............................................................................... 19 10 11 12 13 14 15 16 17 18 19 20 21 22 23 - ii - Brief of Amicus Curiae 2:15-cv-09938-RGK-E Case 2:15-cv-09938-RGK-E Document 35-1 Filed 04/27/16 Page 3 of 26 Page ID #:324 1 TABLE OF AUTHORITIES CASES 2 3 Adobe Sys. v. Southern Software, Inc., 1998 U.S. Dist. LEXIS 1941 (N.D. Cal. Jan. 30, 1998) ............................ 12 4 5 Arica Inst., Inc. v. Palmer, 970 F.2d 1067 (2d Cir. 1992) ................................................................... 1 6 7 Baker v. Selden, 101 U.S. 99 (1879) ................................................................................... 10 8 CDN Inc. v. Kapes, 9 197 F.3d 1256 (9th Cir. 1999) .................................................................. 9 10 Computer Assocs. Int'l v. Altai, 11 982 F.2d 693 (2d Cir. 1992) ................................................................... 11 12 Dalton v. Robert Jahn Corp., 13 209 Ore. App. 120, 146 P.3d 399 (Or. Ct. App. 2006) .......................... 7 14 ELTRA Corp. v. Ringer, 15 579 F.2d 294 (4th Cir. 1978) .................................................................. 12 16 Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000) ................................................................ 11 17 18 Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) ................................................................................. 15 19 Golan v. Holder, 20 132 S. Ct. 873 (2012) ................................................................................ 9 21 Grosso v. Miramax Film Corp., 22 383 F.3d 965 (9th Cir. 2004) .................................................................. 10 23 - iii - Brief of Amicus Curiae 2:15-cv-09938-RGK-E Case 2:15-cv-09938-RGK-E Document 35-1 Filed 04/27/16 Page 4 of 26 Page ID #:325 Keane v. Fox TV Stations, Inc., 1 297 F.Supp.2d 921 (S.D. Tex. 2004) ...................................................... 10 2 Loglan Inst., Inc. v. Logical Language Group, Inc., 3 962 F.2d 1038 (Fed. Cir. 1992) .............................................................. 13 4 Norwood v. Vance, 5 591 F.3d 1062 (9th Cir. 2010) .................................................................. 8 6 Oracle Am., Inc. v. Google Inc., 7 750 F.3d 1339 (Fed. Cir. 2014) .............................................................. 12 8 Reiss v. National Quotation Bureau, Inc., 276 F. 717 (S.D.N.Y. 1921) ...................................................................... 10 9 10 State v. Hosier, 157 Wn.2d 1, 133 P.3d 936 (Wash. 2006) .............................................. 7 11 Zalewski v. Cicero Builder Dev., Inc., 12 754 F.3d 95 (2d Cir. 2014) ....................................................................... 9 13 14 STATUTES 15 17 U.S.C. § 102 ............................................................................................ 9 16 17 U.S.C. § 101 ............................................................................................ 4 17 18 OTHER AUTHORITIES 19 Clare Hutchison and Shadia Nasralla, “Star Trek fans tie the knot at 20 ‘Klingon wedding,’” REUTERS (Oct. 19, 2012) ................................... 7, 17 21 David Deans, “Welsh ministers were asked for information about UFO 22 sightings . and they replied in KLINGON,” WALESONLINE 23 (July 9, 2015) ............................................................................................ 7 - iv - Brief of Amicus Curiae 2:15-cv-09938-RGK-E Case 2:15-cv-09938-RGK-E Document 35-1 Filed 04/27/16 Page 5 of 26 Page ID #:326 1 Eddie Dean, Klingon as a Second Language, 2 WASHINGTON CITY PAPER (Aug. 9, 1996) .................................................... 2 3 Frasier, “Star Mitzvah” (orig. air Nov. 5, 2002) ......................................... 6 4 Gavin Edwards, Dejpu’bogh Hov rur Qablli!*, 5 WIRED (Aug. 1996) ........................................................................ 4, 16, 17 6 Lebowski, Jeffrey., THE BIG LEBOWSKI, 1998 ............................................... 16 7 Marc Okrand et al., “Wild and Whirling Words: the Invention and Use 8 of Klingon,” in FROM ELVISH TO KLINGON: EXPLORING INVENTED LANGUAGES (Michael Adams ed., 2011) ................................................................... 4 9 10 Marc Okrand, “Klingon for the Galactic Traveler” (1997) ..................... 4 11 Marc Okrand, “The Klingon Way: A Warrior’s Guide” (1996) ................ 4 12 National Commission on New Technological Uses of Copyrighted 13 Works, Final Report 20 (1979) ............................................................... 11 14 Okrand, Marc, The Klingon Dictionary (1985) ..................................... 1, 4 15 Roger Cheesbro, “Gilgamesh: a Klingon Translation” (2003) ............... 6 16 Star Trek: Deep Space Nine, Tacking Into the Wind 17 (orig. air May 12, 1999) (stardate unknown) ...................................... 13 18 Star Trek: The Next Generation, “The Emissary” 19 (orig. air June 29, 1989) (stardate 42901.3) .......................................... 2 20 Tara Bannow, “Local company creates Klingon dictionary,” 21 MINNESOTA DAILY (Nov. 17, 2009) ............................................................ 17 22 William Shakespeare, “Much Ado About Nothing: The Restored 23 Klingon Text” (Nick Nicholas trans., 2003) ............................................. 6 - v - Brief of Amicus Curiae 2:15-cv-09938-RGK-E Case 2:15-cv-09938-RGK-E Document 35-1 Filed 04/27/16 Page 6 of 26 Page ID #:327 1 William Shakespeare, “The Klingon Hamlet” (Nick Nicholas et al. 2 trans., 2000) .............................................................................................. 6 3 4 REGULATIONS 5 37 C.F.R. § 202.1 ................................................................................... 9, 12 6 7 CONSTITUTIONAL PROVISIONS 8 U.S. Const. Art. I, § 8, cl. 8. ....................................................................... 15 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 - vi - Brief of Amicus Curiae 2:15-cv-09938-RGK-E Case 2:15-cv-09938-RGK-E Document 35-1 Filed 04/27/16 Page 7 of 26 Page ID #:328 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 Amicus The Language Creation Society hereby submits its brief 3 as amicus curiae relative to Defendant’s Motion to Dismiss Plaintiffs’ 4 Amended Complaint or Strike Plaintiffs’ Complaint in Part. Hearing 5 on Defendant’s Motion is scheduled for May 9, 2016 at 9:00 a.m. 6 1.0 Introduction − a l nIaq maaI maQa 1 7 In 1984, Marc Okrand invented the Klingon language.2 Before 8 that, when actors played Klingons in Star Trek television programs or 9 movies, they simply uttered guttural sounds or spoke in English 10 (Federation Standard).3 Given that Paramount Pictures 11 commissioned the creation of some of the language, it is 12 understandable that Paramount might feel some sense of ownership 13 over the creation. But, feeling ownership and having ownership are 14 not the same thing. The language has taken on a life of its own. 15 1 16 Latin transliteration: “wa' Dol nIvDaq matay'DI' maQap.” 2 17 Mr. Okrand himself has asserted that the Klingon language, tlhIngan Hol, was received by him from a captured Klingon named 18 Maltz. See Okrand, Marc, The Klingon Dictionary (1985). Thus, Plaintiffs may be estopped from asserting otherwise for the purposes 19 of this litigation. See Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1075 20 (2d Cir. 1992) (author who disavowed inventing enneagrams publicly cannot claim invention inconsistently to improve a litigation 21 position). 3 Klingons also appeared more human, notably missing forehead 22 ridges, which was retconned into a storyline about genetic 23 engineering and viral spread of the change. - 1 - Brief of Amicus Curiae 2:15-cv-09938-RGK-E Case 2:15-cv-09938-RGK-E Document 35-1 Filed 04/27/16 Page 8 of 26 Page ID #:329 1 Thousands of people began studying it, building upon it, and using it 2 to communicate among themselves. As the Klingon proverb says, 3 a l nIaq maaI maQa.4 4 The greater whole
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