The 8th Circuit Court of Appeals in St. Louis will hear arguments at 9 a.m. today in this case that may decide how the Digital Millennium Copyright Act, or DMCA, applies to computer software and the important practice of reverse engineering. As you may recall, the charges center on “bnetd,” free software developed to allow individuals to run servers for hosting online versions of popular Blizzard games such as “Diablo II” and “StarCraft.” Blizzard runs its own online service, Battle.net, for those games, but many people have claimed the service is erratic, buggy, and riddled with players who cheat.
965 F.Supp 1134 (N.D. Ill 1997)
(Order on Motion for Summary Judgment)
I always look forward to reading a video game case that starts with “Plaintiff Philip Ahn is a fourth degree black belt in Tae Kwon Do and has practiced martial arts for approximately twenty years. Plaintiff Elizabeth Malecki holds a degree in ballet and modern dance and is a professional dancer, actress, and aerobics instructor. Plaintiff Katalin Zamiar is a first degree black belt in Karate and has twelve years of experience.” (emphasis added) This is also an interesting case in that it is one of the few that deals with preemption of state law by the federal Copyright Act of 1976 (here, state law rights of publicity get preempted).
The games at issue are Mortal Kombat (MK) and Mortal Kombat II (MKII), and the defendants are Midway (copyright owner in MK and MKII), Williams Electronics (makes the coin-operated versions of MK and MKII), Acclaim Entertainment (developed version of MK and MKII for Nintendo and Sega game consoles), Nintendo of America (game console mfr and game publisher), and Sega of America (then a game console mfr and game publisher), each of which is well known in the industry.
Each plaintiff alleges that, on separate occasions between 1992 and 1993, they were approached by Midway’s agents about the possibility of using their images, names and performances for various characters in the coin-operated arcade format of MK and MKII. Plaintiff Malecki modeled the character Sonja Blade for MK (see above screenshot). Plaintiff Ahn modeled the character Shang Tsung in the coin-operated version of MKII, while plaintiff Zamiar modeled for three characters, Kitana, Mileena, and Jade, all of whom appeared in MKII. Midway videotaped each plaintiff’s movements, digitized the images, and incorporated the digitization into the coin-operated arcade games. The games were successful, and Sega and Nintendo soon released game console versions of MK and MKII.
Mortal Kombat (Elizabeth Malecki as Sonya Blade):
Mortal Kombat II (Katalin Zamiar as Kitana):
As is generally the case, each plaintiff signed a release form with Midway at the time of the videotaping. This agreement authorized Midway to film each plaintiff in a martial arts performance in order to use that plaintiff’s name or likeness in connection with the manufacture, design, advertising, promotion, sale, and use of the coin-operated video games. The agreement also made Midway the sole and exclusive owner of all of plaintiffs’ copyrightable expression, defining any such expression as “works for hire,” and permitted Midway, at its sole discretion, to use plaintiffs’ likeness in any copyright obtained in connection with the coin-operated arcade games.
At this juncture in the case, the remaining issues are common law right of publicity, copyright infringement, and common law quantum meruit. The court initially dealt with the common law right of publicity, finding that the right of publicity claim was preempted by federal copyright law. A state law is preempted when 1) the work in which the right is asserted is fixed in a tangible form and falls within the subject matter of copyright under § 102 of the Copyright Act, and 2) the right asserted is equivalent to any of the rights specified in § 106 of the Copyright Act. In this case, plaintiffs’ images were videotaped and, as a result, became fixed in a tangible form (because plaintiffs’ consented to the videotaping, the definition of ‘fixed’ is satisfied). Further, the choreographic works were all original works of authorship, and choreographic works fall within the subject matter of copyright. Finally, applying the § 106 test, the right of publicity is equivalent to one of the rights in § 106 because it is infringed by the act of distributing, performing or preparing derivative works. The right of publicity claim was therefore preempted.
The crux of the plaintiffs’ argument with respect to copyright infringement was that each plaintiff was a joint author of both MK and MKII, and defendants therefore owed an accounting to each plaintiff. Under 17 U.S.C. § 104, a joint work is defined as “a work prepared by two or more authors with the intention that their contribution be merged into inseparable or interdependent parts of the unitary whole.” However, There was never any intent for the plaintiffs to be joint authors, as evidenced by the “work make for hire” clause in the contract, and Midway at all times had control and final authority over what was used in MK and MKII. In addition, the court applied the copyrightable subject matter test, where in addition to the presence of intent, a collaborative contribution will not produce a joint work, and a contribution will not obtain a co-ownership interest, unless the contribution represents original expression that could stand on its own as the subject matter of copyright.
In analyzing the plaintiffs contributions, the court stated that “it is apparent to the court, in viewing videotapes of the actual games, that the superhuman gyrations and leaps high into the air of the characters, including plaintiffs’ characters, are fanciful products of the imaginations of the creators of the source codes.” Thus, while the plaintiffs contributed their images and movements to the creation of the games, it was Midway alone that translated the ideas into a fixed, tangible expression entitled to copyright protection. The court thus denied the claim of copyright infringement.
Lastly, the court swept aside the remaining quantum meruit claim, noting that in Illinois a claim for quantum meruit cannot succeed where there is a valid, enforceable agreement between the parties, which there was in this case.
1990 WL 180239 (N.D.Cal. 1990)
Accolade was seeking a preliminary injunction again Distinctive Software, which makes this case intriguing because Distinctive is a developer for whom Accolade sometimes acts as the publisher. It’s also intriguing because, unlike early video game copyright infringement cases, it primarily dealt not with the overall look and feel of video games, but rather with the underlying source code.
The Duel: Test Drive II
Distinctive developed the game The Duel—Test Drive II for Accolade, and Distinctive later developed the game Outrun (for publisher Sega) using some of the same underlying “computer codes” as were used in The Duel. There is no dispute as to whether the look and feel of the games were similar—they’re not. The issue was whether Distinctive’s re-use of computer code in Outrun was an infringement of the Accolade’s copyright in The Duel. As part of the contract between Accolade and Distinctive, Distinctive assigned certain copyrights to Accolade, as further discussed below.
There was no question that certain subroutines and computer code, originally used in The Duel, were reused in Outrun. Distinctive argued, however, that only standard libraries and routines were re-used to perform basic functions. Distinctive argued that similar codes are contained in many computer games, since they are necessary to perform functions such as “clearing the screen or operating the joystick.” Distinctive further asserted that these library codes are not game-specific, but were routinely transferred from one computer game to another so the program writer need not duplicate the task of developing them. Distinctive also asserted a fallback position that its licensing agreement with Accolade never contemplated the transfer of copyright in the library codes and, even if it did, the computer codes were mere mechanical devices rather than copyrightable expression, and thus not subject to copyright protection in the first place.
The court noted that, when seeking a preliminary injunction, a showing of a likelihood of success on the merits in a copyright case raises a presumption of irreparable harm. To succeed in showing copyright infringement, Accolade must show that it owned a valid copyright in The Duel, and that Distinctive infringed that copyright by copying protectable material into Outrun. The court cites back to Apple Computers Inc. v. Formula Int’l Inc. for the proposition that all portions of computer programs are the proper subject matter for copyright, even those that communicated only with the machine (computer) itself and not with human users. The underlying subroutines and functions are therefore proper statutory subject matter for copyrights, and are not merely mechanical devices.
Next the court analyzed what, if any, copyrights Distinctive transferred to Accolade. The court determined that the scope of copyright assigned to Accolade by Distinctive depended on the contract language. Specifically, the contract stated, at para. 5.5, that Accolade owns the copyright to the licensed product. “Licensed product” was defined, at para. 1.1, as “the concepts to be designed and implemented by the developer.” The final piece of the puzzle was para. 4.7 of the licensing agreement, which required Distinctive to deliver to Accolade the computer codes underlying the video game. Accolade argued that para. 4.7, in conjunction with paras. 5.5 and 1.1, operated to confer copyright to Accolade of all source code delivered by Distinctive to Accolade. The court disagreed, stating that “our reading of ¶ 4.7 at the present juncture, however, is that it requires [Distinctive] to deliver the underlying codes in addition to the licensed product. Thus, we believe that the licensing agreement transfers to Accolade the copyright to the concept and design of the video game but not the underlying source code.” (emphasis added).
In a last ditch effort, and with a little circular reasoning thrown in for good measure, Accolade argued that Outrun still infringed Accolade’s copyright in The Duel based on the theory that the two games were substantially similar because—yes, you guessed it—Distinctive used the same underlying subroutines and functions in Outrun as were used in The Duel (the same subroutines and functions for which the court just declined to find that Accolade owned the copyright). Needless to say, the court didn’t buy it, and denied Accolade’s motion for a preliminary injunction.
Nota Bene: This case came down to the contract language. While Distinctive won its day in court, had there been a more clearly written contract in the first place, Distinctive might have avoided this conflict altogether, or Accolade could have secured its rights up-front.
543 F. Supp 466 (D. Neb. 1981)
In one of the earliest decisions in a video game infringement case, the court issues a preliminary injunction in favor of Midway, to enjoin the defendants from infringing Midway’s copyrights in its coin-operated Pac-Man, Rally-X, and Galaxian electronic video games. The court also ruled in Midway’s favor with respect to Trademark and other Lanham Act claims.
Midway is a designer and manufacturer of coin-operated electronic video games. In the United States, Midway sells its video games to regional distributors who sell the video games to operators. The operators place the machines in arcades and other places for public use. Among other games, Midway owns the U.S. rights to Pac-Man, Rally-X, and Galaxian, which it acquired from Namco. As per the findings of fact in the decision, over 40,000 Galaxian games had been sold since February 1980, generating royalties of over $3.5M to Namco. Similarly, over 25,000 Pac-Man games and 2,500 Rally-X games have generated another $1M in royalties to Namco.
Each defendant makes or sells conversion kits for one or more of the Galactic Invader, Kamikaze III, Mighty Mouth or Rally-X games. Galactic Invader and Kamikaze III are nearly identical to Glaxian. Mighty Mouth is nearly identical to Pac-Man, and the defendants’ version of Rally-X is nearly identical to Midway’s version of Rally-X, and also uses the same name.
The court went through the usual analysis to determine whether a preliminary injunction was proper: 1) Probable success on the merits, 2) Irreparable harm and balancing of equities, and 3) The public interest. In determining success on the merits, the court analyzed, for each game, the validity of the copyright, and copying of protectable material. The court provided a thorough analysis in its determination that the copyrights are valid, especically in view of the fact that the court has no previous video game case law, controlling or otherwise, to draw from.
At the end of the day, Midway got its preliminary injunction. The case was finally decided by the District of Nebraska in Midway Mfg. Co. v. Dirkschneider, 571 F. Supp. 282 (D.C. Neb. 1983). A sample flyer for one of the defendants’ games is shown below, albeit from another country:
Midway Mfg. Co. v. Artic. Int’l, Inc., 704 F.2d 1009 (7th Cir. 1983), cert. denied, 464 U.S. 823 (1983).
Galaxian is a video that is something of a cross between Space Invaders and Galaga:
Artic manufactured a computer chip to speed up the game play in Midway’s Galaxian video games. The Court of Appeals for the Seventh Circuit ruled this infringed on Midway’s copyright. The court ruled that the speeded up version of the video game constituted a derivative work. While Artic argued that speeding up the video game was like speeding up a phonograph record and so should not be considered a derivative work, the court rejected the argument based on the fact that there is a market for speeded up video games while there is no market for speeded up phonograph records. The court did acknowledge that the definition of derivative work had to be stretched to reach this result.
(Sorry this case summary is short, we will supplement later as time permits)
Williams Electronics, Inc. v. Artic International, Inc., 685 F.2d 870, 215 USPQ 405 (3rd Cir. 1982)
The game is Williams’ arcade game Defender, which many of us remember with fondness:
Artic sold circuit boards, manufactured by others, which contain electronic circuits including a microprocessor and memory devices (ROMs). These memory devices incorporate a computer program which is virtually identical to Williams’ program for the Defender game. The result is a circuit board “kit” which is sold by Artic to others and which, when connected to a cathode ray tube, produces audiovisual effects and a game almost identical to the Williams’ Defender game, including both the attract mode and the play mode. The play mode and actual play of Artic’s game, entitled “DEFENSE COMMAND,” is virtually identical to that of the Williams game, i.e., the characters displayed on the cathode ray tube including the player’s spaceship are identical in shape, size, color, manner of movement and interaction with other symbols. Also, the attract mode of the Artic game is substantially identical to that of Williams’ game, with minor exceptions such as the absence of the Williams name and the substitution of the terms “DEFENSE” and/or “DEFENSE COMMAND” for the term “DEFENDER” in its display.
The principal dispute in this case was whether the audiovisual aspects of a video game are sufficiently “fixed” to obtain copyright protection under the 1976 Copyright Act. The court held that the video game Defender was sufficiently fixed in ROM regardless of the fact that game play may differ slightly each game, and also regardless of the fact that a human player causes the video game to change slightly with each”performance.”
Specifically, Artic argued that there is a lack of “fixation” because the video game generates or creates “new” images each time the attract mode or play mode is displayed, notwithstanding the fact that the new images are identical or substantially identical to the earlier ones. The court gave little weight to this argument, stating that the fixation requirement is met whenever the work is “sufficiently permanent or stable to permit it to be * * * reproduced, or otherwise communicated” for more than a transitory period, and that the original audiovisual features of the DEFENDER game repeat themselves over and over. The court also noted the unnsuccessful results of Artic’s same argument in other cases.
Artic also argued that the player’s participation withdraws the game’s audiovisual work from copyright eligibility because there is no set or fixed performance, and the player becomes a co-author of what appears on the screen. The court rejected this argument as well, noting that although there is player interaction with the machine during the play mode which causes the audiovisual presentation to change in some respects from one game to the next in response to the player’s varying participation, there is always a repetitive sequence of a substantial portion of the sights and sounds of the game, and many aspects of the display remain constant from game to game regardless of how the player operates the controls. In addition, there is no player participation in the attract mode which is displayed repetitively without change.
The court went on to reject Artic’s additional arguments in its defense, namely that Williams was trying to copyright a utilitarian object, and that copyright infringement only occurs when the source code is copied, not when the object code is copied. The court did, however, reverse the finding of willful infringement and remanded for further proceedings on that issue.
MARVEL ENTERPRISES, INC., et al.
NCSOFT CORPORATION, et al.
No. CV 04-9253RGKPLAX.
March 9, 2005.
The case is in the early stages, and the present ruling is on a motion to strike and motion to dismiss various claims. Marvel contends that NCSoft marketed, distributed and hosted a computer game that allows players to play online and create characters that are virtually identical in name, appearance, and characteristics to characters owned by Marvel. Marvels allegations include (1) direct, (2) contributory, and (3) vicarious copyright infringement under 17 U.S.C. § § 101, et seq., (4) direct, (5) contributory, and (6) vicarious registered trademark infringement under 15 U.S.C. § 1114, (7) direct, (8) contributory, and (9) vicarious common-law trademark infringement under 15 U.S.C. § 1125, (10) intentional interference with actual and prospective economic advantage, and (11) declaratory relief.
The motion to strike was granted-in-part, because the allegedly infringing works depicted in the exhibits and referred to in the pleadings were created by Plaintiffs themselves.
The motion to dismiss was granted as to Plaintiffs’ 4th, 5th, 6th, 8th, 9th, and 11th causes of action (the trademark-related issues, as well as the DJ claim).
Even though the trademark claims were dismissed, this will be a case to watch on the copyright side of the aisle, given that the scope of protection in copyrightable characters with respect to video games will inevitably be an issue. The specific Marvel characters involved inclue Captain America, Wolverine, Incredible Hulk, Magneto, The Thing, Phoenix, and Iron Man.
We’ll keep you posted as this case progresses.
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.
ATARI, INC. v. AMUSEMENT WORLD, INC., 547 F.Supp. 222 (D. Md. Nov. 27, 1981).
In one of the earliest video game cases, Atari, the holder of copyright in the arcade game “Asteroids,” sued Amusement World for copyright infringement based on Amusement World’s video game “Meteors.” This early case reaffirms that while video games are protectable as audiovisual works (incidentally, the court also indicates the video game is protectable as a motion picture), copyright protection does not extend to the underlying idea behind the video game, but rather protects only the specific expression of that idea.
At the outset, the court noted a variety of similaries between the games:
(1) There are three sizes of rocks.
(2) The rocks appear in waves, each wave being composed initially of larger rocks.
(3) Larger rocks move more slowly than smaller ones.
(4) When hit, a large rock splits into two medium rocks, a medium rock splits into two small ones, and a small rock disappears.
(5) When a rock hits the player’s spaceship, the ship is destroyed.
(6) There are two sizes of enemy spaceships.
(7) The larger enemy spaceship is an easier target than the smaller one.
(8) The player’s ship and enemy ships shoot projectiles.
(9) When a spaceship’s projectiles hit a rock or another ship, the latter is destroyed immediately.
(10) The destruction of any rock or spaceship is accompanied by a symbol of an explosion.
(11) When an enemy spaceship is on the screen, the player hears a beeping tone.
(12) There is a two-tone beeping noise in the background throughout the game, and the tempo of this noise increases as the game progresses.
(13) The player gets several spaceships for his quarter. The number of ships remaining is displayed with the player’s score.
(14) The score is displayed in the upper left corner for one player and the upper right and left corners for two players.
(15) The control panels are painted in red, white, and blue.
(16) Four control buttons from left to right, rotate the player’s spaceship counter-clockwise, rotate it clockwise, move it forward, and fire the weapon.
(17) When a player presses the “thrust” button, his spaceship moves forward and when he releases the button the ship begins to slow down gradually (although it stops more quickly in “Meteors”).
(18) The player gets an extra spaceship if he scores 10,000 points.
(19) Points are awarded on an increasing scale for shooting (a) large rock, (b) medium rock, (c) small rock, (d) large alien craft, (e) small alien craft.
(20) When all rocks are destroyed a new wave of large rocks appears.
(21) Each new wave of rocks has progressively more large rocks than the previous waves to increase the challenge of the game.
(22) A general overhead view of the battle field is presented.
The court also noted several differences between the games:
(1) “Meteors” is in color, while “Asteroids” is in black and white.
(2) The symbols for rocks and spaceships in “Meteors” are shaded to appear three-dimensional, unlike the flat, schematic figures in “Asteroids.”
(3) The rocks in “Meteors” appear to tumble as they move across the screen.
(4) “Meteors” has a background that looks like distant stars.
(5) At the beginning of “Meteors,” the player’s spaceship is shown blasting off the earth, whereas “Asteroids” begins with the player’s spaceship in outer space.
(6) The player’s spaceship in “Meteors” rotates faster.
(7) The player’s spaceship in “Meteors” fires faster and can fire continuously, unlike the player’s spaceship in “Asteroids,” which can fire only bursts of projectiles.
(8) The pace of the “Meteors” game is faster at all stages.
(9) In “Meteors,” after the player’s spaceship is destroyed, when the new spaceship appears on the screen, the game resumes at the same pace as immediately before the last ship was destroyed; in “Asteroids” the game resumes at a slower pace.
To prove copyright infringement, a plaintiff must prove the existence of a valid copyright, and copying of protectable expression by the defendant. Amusement World first challenged the validity of Atari’s copyright on the grounds that “Asteroids” was not the proper subject matter of copyright, as well as based on Atari’s alleged noncompliance with applicable statuory formalities.
Atari registered a copyright in “Asteroids” as an audiovisual work, not in the computer program as a literary work, by submitting a video tape of one game sequence out of an infinite number of possible game sequences. Amusement World argued that the computer program would have been the proper subject matter of copyright, not the audiovisual portion. In rejecting Amusement World’s arguments on this point, the court stated “Plaintiff’s “work,” the thing that plaintiff has created and desires to protect, is the visual presentation of the “Asteroids” game. That work is copyrightable as an audiovisual work…” The court went on to state that the audiovisual work is sufficiently fixed in the ROM chips under which the video game operates.
Amusement World next argued that Atari was attempting to monopolize the use of the idea of a video game in which the player fights his way through asteroids and spaceships, which is an uncopyrightable idea. The court again sided with Atari, stating “when [Atari] copyrighted his particular expression of the game, he did not prevent others from using the idea of a game with asteroids. He prevented only the copying of the arbitrary design features that makes plaintiff’s expression of this idea unique. These design features consist of the symbols that appear on the display screen, the ways in which those symbols move around the screen, and the sounds emanating from the game cabinet.”
Regarding compliance with statutory formalities, the court indicated that submission of a videotape of a single game out of an infinite number of possible games, is sufficient “alternative identifying material” as required by the Copyright Office.
Atari attempted to demonstrate copying by showing access to its work “Asteroids” by Amusement World, plus substantial similarity of the two works (i.e., “Asteroids” and “Meteors”). The court provided the usual analysis of protectable material, and indicated that the court “must be careful not to interpret plaintiff’s copyright as granting plaintiff a monopoly over those forms of expression that are inextricably associated with the idea of such a video game. Therefore, it is not enough to observe that there are a great number of similarities in expression between the two games. It is necessary to determine whether the similar forms of expression are forms of expressiongrhat simply cannot be avoided in any version of the basic idea of a video game involving space rocks.” Based on the lists of similarities and differences, the court concluded that Meteors was not substantially similar to Asteroids, stating that most of the similarities “were inevitable, given the requirements of the idea of a game involving a spaceship combatting space rocks and given the technical demands of the medium of a video game…. All these requirements of a video game in which the player combats space rocks and spaceships combine to dictate certain forms of expression that must appear in any version of such a game. In fact, these requirements account for most of the similarities between ‘Meteors’ and ‘Asteroids.’ Similarities so accounted for do not constitute copyright infringement, because they are part of plaintiff’s idea and are not protected by plaintiff’s copyright.” Without substantial similarity of protectable expression, there can be no copyright infringement. While Amusement World based their game on Atari’s Asteroids, Amusement World only copied the idea, and not the protectable aspects of the game.