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CONLANG Home

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CONLANG  September 2009, Week 4

CONLANG September 2009, Week 4

Subject:

Re: Conlang copyright

From:

Paul Hartzer <[log in to unmask]>

Reply-To:

Constructed Languages List <[log in to unmask]>

Date:

Tue, 22 Sep 2009 05:13:02 -0700

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (29 lines)

> From: "<deinx nxtxr>" <[log in to unmask]>
> Trademarks wouldn't do it either.  That's for protecting brand names, logos and 
> the like.

If the language is intended to be used for a series of works, then the language's name and possibly certain key, exemplifying words could arguably be trademarked, in the same way that many story-franchise character names are trademarked. See http://www.fredlaw.com/areas/trademark/trade_0703_jcp.html for discussion.

However, in my comment from last night, I forgot that the notion of "derivative works" is in at least some countries' copyright law. This is what has been used to block sequels involving significant literary characters (as in, e.g., a recent suit by J. D. Salinger to block a sequel of Catcher in the Rye); see http://law.marquette.edu/facultyblog/2009/08/17/the-windmills-reply/ for discussion.

Another possible issue is that of "unfair competition." See http://www.publaw.com/fiction.html for a discussion of how copyright, trademark, and unfair competition law apply to fictional characters; this is written with regards to specific characters (e.g., James Bond), but it seems to me that certain creators have at least attempted to protect general creations (e.g., Lucas's various Star Wars species, such as Wookiees and Twi'leks), and if there's any precedence there, it might also be extensible to artlangs (or certain defining characteristics thereof) on the grounds that the artlang is a crucial part of a commodifiable universe. A lot of ifs, but some publishers have mighty strong lawyers, and more than one "little guy" author has been left agog and victimized at the verbal calesthenics performed by those lawyers.

Specifically, how I could see it being played out:
-- Joe has a prized exolang, Trixlamadia. He has been working on it for six years as part of his own creative endeavors.
-- Jane, an author friend of Joe's, asks for a few exotic sounding phrases for her new book involving aliens, the Maximian Gambit.
-- Thinking this might be a good time to generate interest on Trixlamadia, or just being too lazy to create a new exolang, Joe gives her a few sentences in that language.
-- Jane's work winds up being a breakthrough novel. As a result, there's a TriStar movie deal, and she's commissioned to write three more Maximian books. Per the publisher's contract, one of these is to delve deeply into the background of the aliens, including much more dialogue in Trixlamadia.
-- Joe publishes a short story involving Trixlamadian dialogue, although the characters and species are completely unrelated to Maximians.
-- Jane's publisher sues him for intellectual property infringement on the grounds that he's trying to take unfair advantage of Trixlamadia's fame, which fame happened largely through their efforts as publishers, and also on the grounds that he's diluting potential commercial value of Trixlamadia by recontextualizing it, because it's important to the publishers that Trixlamadia be seen as "the language of the Maximians," not just as some random exolang.

Could they *win* that suit? I honestly don't know. I do think they'd have a legitimate point, though. What implicit rights would Joe be ceding by apparently donating those words and phrases to Jane? Perhaps the publisher has the good faith belief that Jane created those initial phrases, along with the rest of her work, by herself; it would therefore be a reasonable assumption that, since Jane is under contract with them, they own certain rights over the language. From their perspective, I think it *would* be reasonable to conclude that Joe is taking advantage of Jane's (and the publisher's) literary success to launch his own story series, to the commercial detriment of the publisher. Whether they could win the suit or not is probably immaterial to most of the authors haunting this list: What's material to those authors is that the lawsuit could take years, tying up Trixlamadia in legal limbo for Joe (but not for Jane!) and destroying what had been a
 great friendship between Joe and Jane.

Until there's clear legal precedent (and I don't believe there is), it's best to avoid that road altogether and to instead provide friends who are authors with conlangs we don't intend to use ourselves.

-- Paul



      

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