862 F.2d 204 (9th Cir. 1988).
In July 1984, Data East USA, Inc. began distributing in Japan a video game titled “Karate Champ,” and later in October 1985, began distributing the game in the United States. In November 1985, Epyx began distributing a similar video game in the United States titled “World Karate Championship.” Data East subsequently brought a suit against Epyx, alleging that Epyx’s game infringes Data East’s copyright for “Karate Champ.” The district court agreed with Data East, granting a permanent injunction that enjoined Epyx from distributing “World Karate Championship. Epyx appealed.
The Ninth Circuit first discussed an evidentiary issue involving whether photographs constituted sufficient evidence for the contents of a video game’s audiovisual work. The court found that “still photographs which depict all images and all moves that occur when the game sequences through the various skill levels, along with testimony,” was sufficient to make a fair comparison between the two games.
The court then directed its attention to the copyright infringement claim. Because there was no direct evidence of copying, the court employed the test for establishing copying by circumstantial evidence, which requires evidence of (1) the defendant having access to the copyrighted work, and (2) “substantial similarity of both the general ideas and expression between the copyrighted work and the defendant’s work.” Because the court found the works were not substantially similar, it declined to consider whether the defendant had access.
World Karate Championship:
After setting forth the “axiom of copyright law that copyright protects only an author’s expression of an idea, not the idea itself,” the court explained the two-step test for determining substantial similarity. The first step is an objective test asking whether the two ideas are substantially similar. Finding that the ideas were substantially similar, if not identical, the court immediately moved to the second step, which is a subjective test asking whether the forms of expression are substantially similar from the perspective of the ordinary reasonable person.
The court established that the proper analysis requires a comparison of the similarities, while avoiding comparison of dissimilarities or forms of expression that necessarily flow from an idea, i.e., scenes a faire. The court found that both games encompassed the idea of a karate video game in fifteen respects, including the number of different moves available, one player or two player options, a number of the same type of moves, the ability to change the background scenes, the length of the rounds, and having a referee for each round. The court recognized that there are constraints inherent to the sport of karate, such as the types of moves and the use of a referee, and also inherent to the computer, such as the use of sprites to create the graphical images and the limited access to color. Because of these constraints, the court held that the aforementioned similarities necessarily flowed from the idea of a karate video game.
The Ninth Circuit therefore held that the district court erred by not limiting the scope of Data East’s copyright protection to the author’s contribution, i.e., the scoreboard and the background scenes. Because the backgrounds were dissimilar and the method of scorekeeping was similar but inconsequential, the court found that a typical purchaser of the game, a 17.5 year old boy, would not regard the works as substantially similar. Therefore, the court held that Data East’s copyright was not infringed and remanded to the lower court to lift the injunction.
Thanks to Brandon Rash for this assistance with the preparation of this Case Summary.