Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607 (7th Cir. 1982)

In this early case regarding copyright protection of video games, the court addresses the issue of determining the scope of copyright protection in an audiovisual work such as a video game. The question here: Did North American Phillips’ game K.C.MUNCHKIN infringe Atari’s copyright in the game PAC-MAN? The court, noting that a game is not protectible by copyright “as such,” stated that video games are protectible “at least to a limited extent [insofar as] the particular form in which it is expressed provides something new or additional over the idea.” The court went on to conclude that Atari had a likelihood of success on the merits of copyright infringement, and granted a preliminary injunction preventing North American Phillips from infringing Atari’s copyright by producing the K.C.MUNCHKIN game.

The court noted many differences and similarities between PAC-MAN and K.C. Munchkin, which are reproduced in their entireties below. However, what is interesting in this case is that K.C.MUNCHKIN is a clear improvement over PAC-MAN, providing additional strategic aspects that make game play much more dynamic and difficult to master. The court does not ignore these differences, but instead reminds us that “it is enough that substantial parts were lifted; no plagiarist can excuse the wrong by showing how much of his work he did not pirate” (citing Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2nd Cir.)). The court went on to state that “[t]he sine qua non of the ordinary observer test … is the overall similarities rather than the minute differences between the two works. … When analyzing two works to determine whether they are substantially similar, courts should be careful not to lose sight of the forest for the trees.”

Indicating that video games “appeal to an audience that is fairly undiscriminating insofar as their concern about more subtle differences in artistic expression,” this case is useful in that it indicates that infringement can occur when the similarity between two works relates to matter which constitutes a substantial portion of copyright holder’s work, i.e., matter which is of value to the copyright holder, regardless of the amount of the alleged infringing work that is similar (hmmm, sounds similar to a fair use factor). Once that determination was made, the court had no trouble concluding that Atari had a good chance of success on the merits in their copyright infringement claim. The fact that North American Phillips advertised K.C.MUNHKIN as a PAC-MAN-type game probably didn’t hurt either.

The court’s summary of PAC-MAN:

(Play Pac Man Now: Click Here.)
The copyrighted version of PAC-MAN is an electronic arcade maze-chase game. Very basically, the game “board,” which appears on a television-like screen, consists of a fixed maze, a central character (expressed as a “gobbler”), four pursuit characters (expressed as “ghost monsters”), several hundred evenly spaced pink dots which line the pathways of the maze, four enlarged pink dots (“power capsules”) approximately located in each of the maze’s four corners, and various colored fruit symbols which appear near the middle of the maze during the play of the game.

Using a “joy stick,” the player guides the gobbler through the maze, consuming pink dots along the way. The monsters, which roam independently within the maze, chase the gobbler. Each play ends when a monster catches the gobbler, and after three plays, the game is over. If the gobbler consumes a power capsule, the roles reverse temporarily: the gobbler turns into the hunter, and the monsters become vulnerable. The object of the game is to score as many points as possible by gobbling dots, power capsules, fruit symbols, and monsters.

The PAC-MAN maze has a slightly vertical rectangular shape, and its geometric configuration is drawn in bright blue double lines. Centrally located on the left and right sides of the maze is a tunnel opening. To evade capture by a pursuing monster, the player can cause the central character to exit through one opening and re-enter through the other on the opposite side. In video game parlance this concept is called a “wraparound.” In the middle is a rectangular box (“corral”) which has a small opening on the upper side. A scoring table, located across the top of the maze, displays in white the first player’s score on the left, the high score to date in the middle, and the second player’s score on the right. If a player successfully consumes all of the dots, the entire maze flashes alternately blue and white in victory, and a new maze, replenished with dots, appears on the screen. When the game ends a bright red “game over” sign appears below the corral.

At the start of the game, the gobbler character is located centrally near the bottom of the maze. That figure is expressed as a simple yellow dot, somewhat larger than the power capsules, with a V-shaped aperture which opens and closes in mechanical fashion like a mouth as it travels the maze. Distinctive “gobbling” noises accompany this action. If fate (or a slight miscalculation) causes the gobbler to fall prey to one of the monsters, the action freezes, and the gobbler is deflated, folding back on itself, making a sympathetic whining sound, and disappearing with a star-burst.

The four monster characters are identical except that one is red, one blue, one turquoise, and one orange. They are about equal in size to the gobbler, but are shaped like bell jars. The bottom of each figure is contoured to stimulate three short appendages which move as the monster travels about the maze. Their most distinctive feature is their highly animated eyes, which appear as large white circles with blue irises and which “look” in the direction the monster is moving. At the start of each play, the monsters are located side-by-side in the corral, bouncing back and forth until each leaves through the opening. Unlike the gobbler, they do not consume the dots, but move in a prearranged pattern about the maze at a speed approximately equal to that of the gobbler. When the gobbler consumes a power capsule and the roles reverse, the monsters panic: a siren-like alarm sounds, they turn blue, their eyes contract into small pink dots, a wrinkled “mouth” appears, and they immediately reverse direction (moving at a reduced speed). When this period of vulnerability is about to end, the monsters warn the player by flashing alternately blue and white before returning to their original colors. But if a monster is caught during this time, its body disappears, and its original eyes reappear and race back to the corral. Once in the corral, the monster quickly regenerates and reenters the maze to resume its pursuit of the gobbler.

Throughout the play of PAC-MAN, a variety of distinctive musical sounds comprise the audio component of the game. Those sounds coincide with the various character movements and events occurring during the game and add to the excitement of the play.

The court’s summary of K.C.MUNCHKIN:

North American’s K. C. Munchkin is also a maze-chase game that employs a player-controlled central character (also expressed as a “gobbler”), pursuit characters (also expressed as “ghost monsters”), dots, and power capsules. The basic play of K. C. Munchkin parallels that of PAC-MAN: the player directs the gobbler through the maze consuming dots and avoiding capture by the monsters; by gobbling a power capsule, the player can reverse the roles; and the ultimate goal is to accumulate the most points by gobbling dots and monsters.

K. C. Munchkin’s maze also is rectangular, has two tunnel exits and a centrally located corral, and flashes different colors after the gobbler consumes all of the dots. But the maze, drawn in single, subdued purple lines, is more simple in overall appearance. Because it appears on a home television screen, the maze looks broader than it is tall. Unlike that in PAC-MAN, the maze has one dead-end passageway, which adds an element of risk and strategy. [FN1] The corral is square rather than rectangular *612 and rotates ninety degrees every two or three seconds, but serves the same purpose as the corral in PAC-MAN. The scoring table is located below the maze and, as in PAC-MAN, has places on the left and right for scores for two players.[FN2] But instead of simply registering the high score in the middle, the K. C. Munchkin game displays in flashing pink and orange a row of question marks where the high scorer can register his or her name.

FN1. The K. C. Munchkin home video game has several modes with an almost indefinite variety of mazes. One mode, for example, employs a constantly changing configuration, in another, the player can build his or her own maze, and in yet another, the maze disappears when the gobbler moves.

FN2. Before any player registers points, the PAC-MAN scoring table displays in white “1 UP” and “2 UP” where the scores will appear. The K. C. Munchkin game simply displays “0000” in orange for the first player and in white for the second.

The gobbler in K. C. Munchkin initially faces the viewer and appears as a round blue-green figure with horns and eyes. The gobbler normally has an impish smile, but when a monster attacks it, its smile appropriately turns to a frown. As it moves about the maze, the gobbler shows a somewhat diamond-shaped profile with a V-shaped mouth which rapidly opens and closes in a manner similar to PAC-MAN’s gobbler. A distinctive “gobbling” noise also accompanies this movement. When the gobbler stops, it turns around to face the viewer with another grin. If captured by a monster, the gobbler also folds back and disappears in a star-burst. At the start of each play, this character is located immediately above the corral. If successful in consuming the last dot, the munchkin turns to the viewer and chuckles.[FN3]

FN3. The district court stated that “the central character is made to have a personality which the central character in ‘PAC-MAN’ does not have.”

K. C. Munchkin’s three ghost monsters appear similar in shape and movement to their PAC-MAN counterparts.[FN4] They have round bodies (approximately equal in size to the gobbler) with two short horns or antennae, eyes, and three appendages on the bottom. The eyes are not as detailed as those of the PAC-MAN monsters, but they are uniquely similar in that they also “look” in the direction in which the monster is moving. Although slightly longer, the “legs” also move in a centipede-like manner as the monster roams about the maze. The similarity becomes even more pronounced when the monsters move vertically because their antennae disappear and their bodies assume the more bell jar-like shape of the PAC-MAN monsters. Moreover, the monsters are initially stationed inside the corral (albeit in a piggyback rather than a side-by-side arrangement) and exit into the maze as soon as play commences.

FN4. The district court, however, characterized the K. C. Munchkin monsters as much “spookier.”

K. C. Munchkin’s expression of the role reversal also parallels that in PAC-MAN. When the gobbler consumes one of the power capsules, the vulnerable monsters turn purple and reverse direction, moving at a slightly slower speed. If caught by the gobbler, a monster “vanishes”: its body disappears and only white “eyes” and “feet” remain to indicate its presence. Instead of returning directly to the corral to regenerate, the ghost-like figure continues to wander about the maze, but does not affect the play.[FN5] Only if the rotating corral happens to open up toward the monster as it travels one of the adjacent passageways will the monster re-enter the corral to be regenerated. This delay in regeneration allows the gobbler more time to clear the maze of dots. When the period of vulnerability is about to end, each monster flashes its original color as a warning.

FN5. During this time, the white eyes disappear and reappear in alternating sequence with the reappearance and disappearance of the monster’s body silhouetted in white.

There are only twelve dots in K. C. Munchkin as opposed to over two hundred dots in PAC-MAN. Eight of those dots are white; the other four are power capsules, distinguished by their constantly changing color and the manner in which they blink. In K. C. Munchkin, the dots are randomly spaced, whereas in PAC-MAN, the dots are uniformly spaced. Furthermore, in K. C. *613 Munchkin, the dots are rectangular and are always moving. As the gobbler munches more dots, the speed of the remaining dots progressively increases, and the last dot moves at the same speed as the gobbler. In the words of the district court, “the last dot … cannot be caught by overtaking it; it must be munched by strategy.” At least initially, one power capsule is located in each of the maze’s four corners, as in PAC-MAN.

Finally, K. C. Munchkin has a set of sounds accompanying it which are distinctive to the whole line of Odyssey home video games. Many of these sounds are dissimilar to the sounds which are played in the arcade form of PAC-MAN.