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I am preparing world for my novel. One of the races in my world is elves. To make my world believable I would like to incorporate the Elvish language. I am big fan of Tolkien or Sapkowski's Elvish language. However as their work is copyrighted I believe I cannot use these. Is there something like an Elvish language that can be freely used in other works?

EDIT: To clarify my intents: I personally think it would be cool if there were conlangs for such commonly used races as elves (or others). If there is something that can be shared across multiple universes, it might be a good factor for geeks to maybe even learn that language. I am not speaking only about Tolkien's Elvish, although that is probably the most complete one.

This is why I am talking about open source rather than free. I am a software developer so these terms seem pretty descriptive for me. It doesn't even have to be always the same language - there may be different dialects and anyone can make slight customizations (in open source terminology forks). These customizations can be incorporated under certain conditions in the main "branch" helping to make the language even more developed - for example, expanding vocabullary.

I don't want to "bypass" copyright. I think it is fair for authors to protect their work if they want to do so. But if something like this already exists, I am willing to use it and help to add new words to the vocabulary etc.

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    $\begingroup$ If you are interested in constructed languages you might want to check out our sister site ConLang.SE, who specialise in this topic. $\endgroup$
    – Secespitus
    Commented Apr 25, 2018 at 10:15
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    $\begingroup$ I don't think so but I'm not a language expert. However, if you are not creating the language yourself does that not mean you can just cheat and get away with 'translating' your elvish into English or whatever language you are writing in? Occassionally using an elvish term/expletive that just doesn't translate :) $\endgroup$
    – EveryBitHelps
    Commented Apr 25, 2018 at 10:16
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    $\begingroup$ You might want to look at the Vulgar conlang constructor. $\endgroup$
    – user
    Commented Apr 25, 2018 at 10:50
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    $\begingroup$ Hi. It is a custom here not to accept an answer before 24 hours. Especially if current answers are of "not possible" kind. That way, people from all over the world can have a shot at answering. What if someone, somewhere, has what you want and won't even open your question seeing you are satisfied with current answer? You may miss answers you would prefer, they may be there, but may not be posted. $\endgroup$
    – Mołot
    Commented Apr 25, 2018 at 13:33
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    $\begingroup$ Mentioning dialects reminds me of my idea that it would be nifty if the Society for Creative Anachronism had its own family of ceremonial languages, which would drift independently in each kingdom. $\endgroup$
    – Anton Sherwood
    Commented Apr 26, 2018 at 1:19

7 Answers 7

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All Elvish is (probably) open source (in the US)

There is a real legal history of battles over open source languages, two threads of which are relevant here. The first is that the US court system has definitively ruled that it is not a violation of a constructed computer programming language's copyright to write a new computer program using the same language and grammar. Although there have been no definitive cases regarding 'conlangs' (constructed languages), the other thread is the situation of the legal battle over Prelude to Axanar.

General background information

There was a journal of Tolkien's linguistics titled Tyalië Tyelelliéva, originally hosted on GeoCities and now gone. This journal published original works in Tolkien's languages in addition to other analysis, but evidently ran afoul of Tolkien's estate which in 1999 took the stance that Quenya and Sindarin in particular (and presumably all Tolkien's languages in general) were copyrighted.

The journal publishers sought the legal advice of the General Counsel of the National Endowment of the Arts who sent back a legal opinion. Here is the only link I could find of this opinion; much of the hard evidence of this whole situation is shrouded in the mists of lost GeoCities. The main points of the opinion were these:

  • Words, short phrases, names, symbols, typefaces, and variations of lettering are not subject to copyright protection by 37 C.F.R. 202.1 (1974) [that is the title of a US Congressional act]

  • "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." (17 U.S.C. 102(b)).

  • Tolkien's languages, by his own self-admission, derive significantly from extant or extinct world languages, which are of course not copyright-able. The fact that many proper nouns like 'Osgiliath,'Theoden', and 'Celebrian' have an origin in real, historical languages makes claims of 'originality,' which is a necessary pre-requisite of copyright, difficult to establish.

  • "...the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." (Title 17 U.S.C. 107) The author of the legal opinion thinks that a journal with original poetry constitutes fair use.

The journal in question here evidently folded around 2001, and no court proceedings (so far as I can determine) were filed on either side, so this is just background information and not legally binding.

For more background information, a more exhausting study was made by Harvard Law Review in 2014. A longer read, this summarized existing conlang legal actions (there have been none that actually went to court), and comes to the conclusion that copyright law is ill-suited to regulation of a constructed language, although it stops sort of giving an opinion on the legality of third-party usage of a constructed language.

The case of computer programming languages

In general, the grammatical principles of a computer language are not copyrightable. If a Python 'Hello World' program looks like 

print("Hello World")

there is nothing preventing me from writing a programming language and/or compiler that uses the exact same syntax to create the exact same effect. This is the decision of Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 720-21 (2d Cir.1992). Following the Supreme Court decision Baker vs. Selden which "denies copyright protection to expression necessarily incidental to the idea being expressed", this case settled on the 'merger doctrine' which states that

[C]opyrighted language may be copied without infringing when there is but a limited number of ways to express a given idea.... In the computer context, this means that when specific instructions, even though previously copyrighted, are the only and essential means of accomplishing a given task, their later use by another will not amount to infringement.

So if my programming language wants to use the exact syntax 

print("Hello World")

there are only a limited number of way to express this idea, and I can copy a copyrighted work (such as a copyrighted Python program that uses that exact line of code) without infringing on the copyright.

By this logic, if a court would apply it to conlangs, which has not yet been done, I could copy Sindarin sentance structure, even if Sindarin has a valid copyright, without infringing; thereby allowing me to generate original works.

The case of Prelude to Axanar

There have long been Star Trek fan films, mostly (in my opinion) terrible. Evidently, Axanar was to be a fan film with a budget of over $1 million, some serious production values, support of Important Star Trek People like George Takei, and even some actors who had appeared in other Star Trek movies. Paramount, which had hitherto been relatively tolerant of fan films, sued for copyright infringement. Paramount had a pretty strong case, since characters like Garth of Izar and fictional races like Vulcans and Klingons are pretty clearly copyright-able. Eventually, the case was settled in 2017.

However, in the course of the lawsuit, Paramount asserted a claim to control over the fictional languages. Sort of. This was probably never a claim that Paramount really wanted to make, but was just involved in the legal claptrap. The Language Creation Society (LCS) filed an amicus brief stating that conlangs were not copyrightable, and the defendants (the producers of Axanar) filed a motion that also said in part that the Klingon language could not be copyrighted. The defendent's motion was accepted by the court, so the copyright issue over the constructed language was excluded; the LCS's amicus brief was then rejected by the court as not applicable.

Ultimately, this case decided nothing. Paramount had a strong case with characters and races and organizations and probably wasn't willing to risk a negative opinion on constructed languages. If anyone is going to file a lawsuit to get open use of a constructed language, it won't be about Klingon since Paramount is a lot richer than the inventor of any other conlangs. But it is relevant that the judge was willing to accept the defendant's reasoning which referenced the same Baker vs Selden which provided the precedent with computer programming languages.

Conclusion

There is no official court decision on whether the grammar and vocabulary of a constructed language, being utilitarian in nature, can be copyrighted. However, there is some good evidence and legal opinions that, in the US at least, such copyright laws would not apply.

Of course someone has to test this in court. Maybe it could be you? If Tolkien's estate comes knocking, you could fire up a GoFundMe and appeal to all the language nerds out there. Your Name vs Tolkien would get its own Wikipedia page and article in the Harvard Law Review...you'd be famous!

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    $\begingroup$ "Your Name vs Tolkien would get its own Wikipedia page and article in the Harvard Law Review...you'd be famous!"...famous but probably broke :) $\endgroup$
    – EveryBitHelps
    Commented Apr 25, 2018 at 13:54
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    $\begingroup$ @EveryBitHelps That's why it is good to have a wife and separate assets. just make sure your wife is the owner of everything valuable, and go bankrupt if case is lost ;) $\endgroup$
    – Mołot
    Commented Apr 25, 2018 at 13:57
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    $\begingroup$ I doubt a case on the language use alone would have merit, as it would open up many loopholes - the incorporation of words from said fictional languages into everyday speech would become illegal, and that's been tested where genuinely copyrighted trademarks (Kleenex, Google, Selotape) have passed into common vernacular as nouns and verbs, then used in works. Unless you're trading/profiting on the use of language of Tolkien's elves, rather than it being an incidental, you're probably fine. I would assume that particular case would rest on whether your work would be equally good without it. $\endgroup$
    – toonarmycaptain
    Commented Apr 25, 2018 at 14:33
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    $\begingroup$ @toonarmycaptain The particular case would be selling a work using Sindarin, but not using any of Tolkien's characters or placenames, without paying royalties to Tolkien's estate. That is what I discuss in this answer, and that, I argue, would be legal. The reasoning is that the first person to copyright a for loop cannot sue someone else using a for loop for copyright violation. The utilitarian mechanics of grammar are not copyrightable. $\endgroup$
    – kingledion
    Commented Apr 25, 2018 at 14:37
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    $\begingroup$ I would assume calling it Sindarin might be a different case to simply using the language, though. If I make a new language using syntax from another programming language, that's different to calling it "toonarmy Java", to tangentially refer to the case currently headed SCOTUS (although that's a little different). $\endgroup$
    – toonarmycaptain
    Commented Apr 25, 2018 at 15:05
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You could also use an extinct language that no one speaks anymore. There are hundreds to choose from.
Being a real language removes any legal issues, gives you all kinds of real grammar and everyday words instead of just the ones that are needed for the story. And best of all, if your work becomes popular and people start learning it, you could be helping to raise a language from the dead.

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    $\begingroup$ Is it possible to find grammar or vocabulary of an extinct language? $\endgroup$
    – Shawn V. Wilson
    Commented Apr 25, 2018 at 23:49
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    $\begingroup$ @ShawnV.Wilson Some. Depends on how long ago they went extinct. Klallam went extinct in 2014 when the last native speaker died, and has a dictionary available. The wiki page lists ones that went extinct recently, and the ones I looked at had basic grammar rules and the like. There are probably other resources out there too. $\endgroup$
    – AndyD273
    Commented Apr 26, 2018 at 12:32
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    $\begingroup$ I think you should tread cautiously in having your elves use the real language of a real people who still exist. (You describe Klallam as extinct -- and OK, no one speaks it as a first language anymore -- but some Klallam still speak it as a second language, and there are several thousand Klallam who very likely still view the language as part of their heritage even if they themselves no longer speak it.) $\endgroup$
    – ruakh
    Commented Apr 28, 2018 at 0:29
  • $\begingroup$ You could try an ancient language that is dead or extinct. Preferably you should avoid Latin, Ancient Greek, and Biblical Hebrew, as those (technically dead but not extinct) languages are quite widely known. You could pick Sumerian (some have written modern songs in this language), Ancient Egyptian, Ge'ez, Aramaic, or Tocharian. Enough is known about those languages that you could probably get things going with minimal improvisation. $\endgroup$
    – Robert Columbia
    Commented Apr 28, 2018 at 3:41
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    $\begingroup$ @ruakh it was just one example pulled from many that do have grammars available. The thing is a lot of these recently extinct languages are trying to be revived. It's possible that they'd welcome the exposure. Maybe go to the community and say that you like to use it, you will keep the name, and you'd love help with translation. Point out how many people have learned Klingon and Dothraki, and ask if they'd like help spreading the language. It's kind of a no lose situation really. Or just go further back to one with no speakers left. $\endgroup$
    – AndyD273
    Commented Apr 28, 2018 at 18:50
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Most conlangs are the work of one person. Whatever the legalities, it would be odd to borrow them for a new work. However, there are ongoing efforts in many conlanging communities (such as Reddit’s /r/conlangs), to construct conlangs within the community, with no one owner, open for use by anyone. There are a couple of active projects on Reddit, and no doubt also a few elsewhere.

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    $\begingroup$ This answer delivers some information but nothing about an open source elvish. $\endgroup$
    – NoDataDumpNoContribution
    Commented Apr 26, 2018 at 13:12
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    $\begingroup$ Well, it's a pointer to open source conlangs. I don't know what might make a language specifically "Elvish", though. $\endgroup$
    – TRiG
    Commented Apr 26, 2018 at 13:40
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    $\begingroup$ "...what might make a language specifically "Elvish"" Good question. I guess orcs should not be able to speak it, as a starter, beyond that it should be looking really cool when printed and muss less sharp-edged than dwarfish. :) Good point. $\endgroup$
    – NoDataDumpNoContribution
    Commented Apr 26, 2018 at 14:13
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    $\begingroup$ For characteristics of "Elvish" languages, look at this question and its answers on Constructed Languages: conlang.stackexchange.com/questions/589/… $\endgroup$
    – Sir Cornflakes
    Commented May 13, 2019 at 15:30
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Taking the legal problems aside, another problem is to find a conlang that really satisfies your needs in terms of vocabulary and grammar available. Answers to this question on conlang.se suggest that the account of Tolkien's Elvish languages is too sparse to be really useful. Even for the Lord of the Rings films and the Hobbit films, new Elvish words were created by the linguist David Salo.

So there are currently two options left: Design an Elvish language on your own or let someone else create a conlang for you.

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  • $\begingroup$ Could one use the existing Tolkien's Elvish word base and just add some needed bits? $\endgroup$
    – NoDataDumpNoContribution
    Commented Apr 26, 2018 at 13:14
  • $\begingroup$ That's really difficult, and the nature of the word base with its permanent revisions doesn't make the task easier. $\endgroup$
    – Sir Cornflakes
    Commented Apr 26, 2018 at 13:51
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Apparently not

I have been searching and the only answers I have found are already mentioned in this reddit-thread.

Quenya, Sindarin, and all other languages by J. R. R. Tolkien are copyrighted until January 1st, 2074.

Everything appears to be "copyrighted".

Just a few might not be. I have not checked all the details of Láadan and Divinian yet, but I have not quickly found anything about those being copyrighted or not.

Most authors do not go the full path of creating an entire language and those that do tend to copyright it. Can't really blame them, it's a huge effort.

EDIT:
To my knowledge you can not just copyright a language. You can copyright publications of any sort, but the a language is nothing you can publish or copy in that sense.

However, using a fictional language of someone else (in copyrighted material) could probably get you in legal trouble anyway. Just like copying the entire storyline and scenario of The Hunger Games and changing all the names of people, locations, parties, technologies, etc. would probably get you into trouble.

If there is a legal expert on this to clarify whether taking such a significant, recognisable part of copyrighted material and just using it for your own publications gets you into trouble, listen to them.
But I definitely see a possibility of this getting you into trouble, so I would advise against it.

EDIT2:
User jeffronicus just found something and posted it as a comment, but since it is relevant I will add it here.

Relevant Tolkien-related post by someone familiar with copyright law: "Know Your Rights: Copyright Law for the Creator of Fan Works," theodoramichaels.com/articles/fan-fic.php: "Cathleen Blackburn replied to me as follows: 'In relation to Quenya and other Elvish languages, the Tolkien Estate takes the position that these are copyright works and, accordingly, a licence is required for any uses of them which would otherwise amount to copyright infringement.'" It's unlikely a publishing house would take the risk.

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    $\begingroup$ Are you seriously quoting Reddit as authoritative? I don't even understand what the phrase "Quenya and other languages are copyrighted". Copyright by definition applies to a work, such as a book, and definitely not to the ideas expressed in the book. A specific word sequence is protected by copyright, ideas by a patent, names by a trademark. Yes, the copyright on a specific book on the grammar of Sindarin could belog to the Tolkien estate; but I cannot see how the estate could hold copyright on the idea of Sindarin grammar. What they might have is a patent of invention or a trademark. $\endgroup$
    – AlexP
    Commented Apr 25, 2018 at 10:50
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    $\begingroup$ @AlexP: I did not quote Reddit as an authority. I just said that all the other stuff i found was also mentioned in this thread. I do not know the exact details of copyright to the extend that you can copyright a language, but in my opinion i can see a very likely possibility of getting into legal trouble if you blatantly copy core elements of copyrighted material. Like you were copying the entire concept of the hunger games story and scenario and only changed names of everything and everyone. I never stated to be a legal expert, i was just forwarding answers other people gave to this question. $\endgroup$
    – ArtificialSoul
    Commented Apr 25, 2018 at 11:04
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    $\begingroup$ Do you really want to use the language from a completely different world in your own? Seems like quite an immersion breaker to me. I know everyone rips off the 4 standard fantasy races from Tolkien (Dwarfs, Elves, Orcs, Humans) but usually you fill in your own cultural details to tell your world apart from that of other authors. $\endgroup$
    – Philipp
    Commented Apr 25, 2018 at 14:14
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    $\begingroup$ Relevant Tolkien-related post by someone familiar with copyright law: "Know Your Rights: Copyright Law for the Creator of Fan Works," theodoramichaels.com/articles/fan-fic.php: "Cathleen Blackburn replied to me as follows: 'In relation to Quenya and other Elvish languages, the Tolkien Estate takes the position that these are copyright works and, accordingly, a licence is required for any uses of them which would otherwise amount to copyright infringement.'" It's unlikely a publishing house would take the risk. $\endgroup$
    – jeffronicus
    Commented Apr 25, 2018 at 21:15
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    $\begingroup$ @jeffronicus: It is worth reading the whole talk by Theodora Michaels, she dos not agree with the quoted statement. $\endgroup$
    – Sir Cornflakes
    Commented Apr 26, 2018 at 15:08
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The question of copyright on synthetic languages is an interesting one, on one hand concepts and names aren't generally subject to copyright but on the other hand there is a reasonable argument that a constructed language as a whole is an original creative work and would seem to fall at least within the intent of copyright law.

One possibility is to choose a real language find a systematic way to modify it for example by substituting certain vowels, consonants or word endings. This tends to happen naturally in language development anyway and so should work reasonably well.

A good starting point is the Norther European language family of which Old English and Old Norse are members. In fact Tolkien was a professor of Anglo-Saxon and a lot of his constructed languages are at least inspired by this family.

A good candidate is modern Icelandic as this is probably the closest to Old Norse which is still spoken so there are plenty of resources for it easily available. To me Icelandic sounds a bit smoother and more elf-like than say Norwegian and doesn't has the same pronounced up and down cadence.

For example you could modify it by replacing the k with (soft) c the tt with l or ll and the leading H with D or S just to make it look a bit different on paper and mellow the pronunciation a bit.

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The first thing that came to mind were constructed languages, the wiki on it is a great thing to read.

Suggested constructed languages to use:

The second idea is languages from a different language group then the writers. As this is in English, use a Celtic language, or better yet, a language isolate.

Suggested languages from different groups:

Thirdly, elvish uses a different script. That helps a lot with making it foreign to the reader. Now, the Bangime language does have different letters then the Latin (adapted) script used to write English. I would like to suggest to use at least a different font for your 'elvish' language.

A variation to that, as unknown scripts are very hard to read, is to write your 'elvish' phoneticly. That way the reader gets a sense for how it sounds.

As to copy rights, most (natural) languages do not have one on them. They are in the public domain. And other answers go into details on 'Tolkien elvish".

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    $\begingroup$ This is very true. Having a foreign language in old English books was ok because the educated folk could read German, Greek and French. Having bits of Elvish (any sect) would be pretty much like something in code, interesting but distracting. However in an e-book with annotations it could show translation on hover, that would be cool. $\endgroup$
    – KalleMP
    Commented Apr 26, 2018 at 19:10

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