The Requirements for Copyright Protection
In Class 2, we learned that copyright can only protect original works of authorship that are fixed in a tangible medium of expression. We also learned that both originality and fixation are constitutional and statutory requirements for copyright protection.
Originality and fixation are constitutional requirements under the Intellectual Property Clause, which provides that copyright can only protect the "writings" of "authors." U.S. Const. Article I, Section 8, Clause 8. The Supreme Court has held that the term "authors" requires originality, and the term "writings" requires fixation. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).
Originality and fixation are statutory requirements under Section 102(a) of the Copyright Act, which provides:
Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.17 U.S.C. § 102(a). In other words, copyright only protects "original works of authorship" that are "fixed in a tangible medium."
We have already studied the originality requirement. In Class 3, we studied the creation and creativity requirements for originality. In Class 4, we considered derivative works, and asked when they are original. In Class 5, we considered compilations, and asked when they are original. And in Class 6, we studied the idea/expression dichotomy, and asked when it prevents copyright from protecting an element of a work.
In this class, we will study the fixation requirement. We will study the definition of the terms "work of authorship" and "fixation," and ask what qualifies as a "tangible medium of expression."
Fixation
Fixation is a constitutional requirement of copyright, because the Intellectual Property Clause provides that copyright can only protect "writings." U.S. Const. Article I, Section 8, Clause 8. The Supreme Court has held that "writings" means any "physical rendering" of an original work of authorship. "[A]lthough the word "writings" might be limited to script or printed material, it may be interpreted to include any physical rendering of the fruits of creative intellectual or aesthetic labor." Goldstein v. California, 412 U.S. 546 (1973). So, the constitutional fixation requirement is satisfied by the creation of a physical rendering of a work in any medium.
The statutory fixation requirement tracks the constitutional requirement. The Copyright Act provides that works can be "fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. § 102(a). So, the statutory fixation requirement is also satisfied by the creation of a physical rendering of a work in any medium.
Under the 1976 Act, the fixation requirement is especially important, because copyrights are created by fixing original works of authorship in a tangible medium of expression. In other words, copyrights come into existence when the author of an original work writes a word, draws a line, takes a photograph, or records a sound. An author may register a work with the Copyright Office, but registration is not required, and does not create the copyright. 17 U.S.C. § 408.
The Ontology of Copyright
Copyright is a right to control certain uses of a form of intangible property called an original work of authorship. While copyright requires fixation in a tangible medium, it protects the work of authorship, not its physical rendering. As Section 202 of the Copyright Act provides:
Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.17 U.S.C. § 202.
For example, copyright protects literary works, including poems. Assume that Smith is the author of the following poem:
Roses are red,As soon as Smith makes a record of the poem in any medium, it can be protected by copyright. It does not matter whether Smith writes the poem on a piece of paper, types it into a computer, or makes an audio or video recording of someone reading it. The creation of any record of the poem creates a copyright in the poem. But the copyright protects the text of the poem, not the record.
Violets are blue;
All my base,
Are belong to you.
Tangible Medium of Expression
The Constitution and the Copyright Act both require fixation in a tangible medium of expression, but they do not define "tangible medium of expression." Courts have generally held that the fixation requirement is satisfied when a work is recorded in a way that preserves it for a period of time, irrespective of the medium in which it is recorded. So, a work can be fixed in writing, in a computer, on a phonorecord, or in a film. But a fixation requires some kind of recording. Smith cannot satisfy the fixation requirement by reciting his poem aloud, and a musician cannot satisfy the fixation requirement by performing a song. A performance is not fixed unless it is recorded.
While copyright requires fixation, it is ecumenical about the medium in which a work is recorded. A recording in almost any medium will suffice, if it enables the perception or reproduction of the work. Notably, a recording satisfies the fixation requirement whether it enables direct perception of the recorded work, or requires the use of a machine to reproduce the recorded work.
However, the fixation of a work creates a copyright only if it is authorized by the author of the work. For example, if Smith recites the poem, and Jones records the poem without permission, Smith cannot claim a copyright based on Jones's recording, because it was not authorized. As a consequence, Jones can use the recording of the poem without restriction, and the recording cannot be protected by copyright.
Questions:
- In 1876, Caroline Shaw Brooks of Helena, Arkansas presented Dreaming Iolanthe, a bas-relief bust of a woman modeled in butter, at the Centennial International Exhibition in Philadelphia, Pennsylvania. Brooks preserved the sculpture by keeping it cold with a system of layered bowls and frequent ice changes. Was Dreaming Iolanthe fixed in a tangible medium?
Caroline Shaw Brooks, Dreaming Iolanthe (1876) - Nicole Falzone created an Etch-a-Sketch portrait of Andy Warhol. Is it fixed in a tangible medium?
Nicole Falzone, Andy Warhol - Carl Jara created a sand sculpture titled What Lies Beneath?. Sand sculptors use a glue-like adhesive to preserve their sculptures while they work. Are sand sculptures fixed in a tangible medium?
Carl Jara, What Lies Beneath? - In The Ambassador (2011), Mads Brugger poses as a Liberian diplomat and secretly films Liberian and Central African Republic officials engaging in allegedly corrupt activities. Can copyright protect the secretly filmed elements?
Several courts have considered whether digital images, including video games, are fixed in a tangible medium. Digital images are recorded in computer memory as electrical impulses, then decoded and presented on the screen. Moreover, video games incorporate variations caused by human intervention. Does a video game exist before it is played, and is a contingent game fixed in a tangible medium.
Stern Electronics Inc. v. Kaufman, 669 F.2d 852 (2d Cir. 1982)
NEWMAN, Circuit Judge:
This appeal from the grant of a preliminary injunction concerns primarily the availability of copyright protection for the visual images electronically displayed by a coin-operated video game of the sort currently enjoying widespread popularity throughout the country. Omni Video Games, Inc., its distributor, and two of its officers appeal from an order entered May 22, 1981 in the District Court for the Eastern District of New York (Eugene H. Nickerson, Judge), preliminarily enjoining them from infringing the copyright of Stern Electronics, Inc. in the audiovisual work entitled "Scramble" and from making further use of the trademark "SCRAMBLE" in connection with electronic video games. 523 F.Supp. 635. Appellants contend that the visual images and accompanying sounds of the video game fail to satisfy the fixation and originality requirements of the Copyright Act, 17 U.S.C.App. § 102(a) (1976), and that they, rather than appellees, have superior rights to the mark "SCRAMBLE". We reject these contentions and affirm the preliminary injunction.
Video games like "Scramble" can roughly be described as computers programmed to create on a television screen cartoons in which some of the action is controlled by the player. In Stern's "Scramble," for example, the video screen displays a spaceship moving horizontally through six different scenes in which obstacles are encountered. With each scene the player faces increasing difficulty in traversing the course and scoring points. The first scene depicts mountainous terrain, missile bases, and fuel depots. The player controls the altitude and speed of the spaceship, decides when to release the ship's supply of bombs, and fires lasers that can destroy attacking missiles and aircraft. He attempts to bomb the missile bases (scoring points for success), bomb the fuel depots (increasing his own diminishing fuel supply with each hit), avoid the missiles being fired from the ground, and avoid crashing his ship into the mountains. And that is only scene one. In subsequent scenes the hazards include missile-firing enemy aircraft and tunnel-like airspaces. The scenes are in color, and the action is accompanied by battlefield sounds.
The game is built into a cabinet containing a cathode ray tube, a number of electronic circuit boards, a loudspeaker, and hand controls for the player. The electronic circuitry includes memory storage devices called PROMs, an acronym for "programmable read only memory." The PROM stores the instructions and data from a computer program in such a way that when electric current passes through the circuitry, the interaction of the program stored in the PROM with the other components of the game produces the sights and sounds of the audiovisual display that the player sees and hears. The memory devices determine not only the appearance and movement of the images but also the variations in movement in response to the player's operation of the hand controls.
Stern manufactures amusement equipment, including video games, for distribution worldwide. In January 1981 at a London trade exhibit Stern became aware of "Scramble," an electronic video game developed in late 1980 by a Japanese corporation, Konami Industry Co., Ltd. The audiovisual display constituting what Stern alleges is the copyrightable work was first published in Japan on January 8, 1981. Stern secured an exclusive sub-license to distribute the "Scramble" game in North and South America from Konami's exclusive licensee, and began selling the game in the United States on March 17, 1981. Even in the fast-paced world of video games, "Scramble" quickly became a big success. Approximately 10,000 units were sold at about $2,000 each in the first two months for an initial sales volume of about $20 million.
On April 14, 1981, a Certificate of Copyright Registration for the audiovisual work "Scramble" was issued to Konami by the United States Copyright Office, and shortly thereafter documents were filed with the Copyright Office reflecting the license and sub-license to Stern. To satisfy the statutory requirement for deposit of copies of a work to be copyrighted, 17 U.S.C.App. § 408(b) (1976), Konami submitted video tape recordings of the "Scramble" game, both in its "attract mode" and in its "play mode."
Omni alleges that, concurrently with Stern's sales of the "Scramble" game and even earlier, it was endeavoring to sell a line of video game products so constructed that each unit could be equipped for playing different games by substituting a PROM containing the program for a particular game. Omni contends that it planned to market this line of interchangeable games with the label "Scramble" affixed to the headboard of each unit; the name of the particular game was also to be prominently displayed. On December 1, 1980, Omni's president ordered ten silk screen name plates bearing the name "Scramble." Between that date and March 17, 1981, the date of Stern's first sale of its "Scramble" game, Omni sold five units of video games bearing the name "Scramble" on the headboard. In April 1981 Omni began to sell a video game called "Scramble" that not only bears the same name as the "Scramble" game Stern was then marketing, but also is virtually identical in both sight and sound. It sold this copy of Stern's "Scramble" game, known in the trade as a "knock-off," for several hundred dollars less than Stern's game.
1. Copyright Issues
In challenging the preliminary injunction that bars distribution of its "Scramble" game, Omni does not dispute that Konami and its sub-licensee Stern are entitled to secure some copyright protection for their "Scramble" game. Omni contends that Konami was entitled to copyright only the written computer program that determines the sights and sounds of the game's audiovisual display. While that approach would have afforded some degree of protection, it would not have prevented a determined competitor from manufacturing a "knock-off" of "Scramble" that replicates precisely the sights and sounds of the game's audiovisual display. This could be done by writing a new computer program that would interact with the hardware components of a video game to produce on the screen the same images seen in "Scramble," accompanied by the same sounds. Such replication is possible because many different computer programs can produce the same "results," whether those results are an analysis of financial records or a sequence of images and sounds. A program is simply "a set of statements (i.e., data) or instructions to be used directly or indirectly in a computer in order to bring about a certain result," Pub.L.No. 96-517, § 10(a), 94 Stat. 3015, 3028 (1980) (amending 17 U.S.C.App. § 101 (1976)). To take an elementary example, the result of displaying a "4" can be achieved by an instruction to add 2 and 2, subtract 3 from 7, or in a variety of other ways. Obviously, writing a new program to replicate the play of "Scramble" requires a sophisticated effort, but it is a manageable task.
To secure protection against the risk of a "knock-off" of "Scramble" based upon an original program, Konami eschewed registration of its program as a literary work and chose instead to register the sights and sounds of "Scramble" as an audiovisual work. See 17 U.S.C.App. § 102(a)(6) (1976). The Act defines "audiovisual works" as "works that consist of a series of related images which are intrinsically intended to be shown by the use of machines, or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied." 17 U.S.C.App. § 101 (1976). Omni contends that Konami is not entitled to secure a copyright in the sights and sounds of its "Scramble" game because the audiovisual work is neither "fixed in any tangible medium of expression" nor "original" within the meaning of § 102(a). Both contentions arise from the fact that the sequence of some of the images appearing on the screen during each play of the game will vary depending upon the actions taken by the player. For example, if he fails to avoid enemy fire, his spaceship will be destroyed; if he fails to destroy enough fuel depots, his own fuel supply will run out, and his spaceship will crash; if he succeeds in destroying missile sites and enemy planes, those images will disappear from the screen; and the precise course travelled by his spaceship will depend upon his adjustment of the craft's altitude and velocity.
If the content of the audiovisual display were not affected by the participation of the player, there would be no doubt that the display itself, and not merely the written computer program, would be eligible for copyright. The display satisfies the statutory definition of an original "audiovisual work," and the memory devices of the game satisfy the statutory requirement of a "copy" in which the work is "fixed." The Act defines "copies" as "material objects ... in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device" and specifies that a work is "fixed" when "its embodiment in a copy ... is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." 17 U.S.C.App. § 101 (1976). The audiovisual work is permanently embodied in a material object, the memory devices, from which it can be perceived with the aid of the other components of the game.
We agree with the District Court that the player's participation does not withdraw the audiovisual work from copyright eligibility. No doubt the entire sequence of all the sights and sounds of the game are different each time the game is played, depending upon the route and speed the player selects for his spaceship and the timing and accuracy of his release of his craft's bombs and lasers. Nevertheless, many aspects of the sights and the sequence of their appearance remain constant during each play of the game. These include the appearance (shape, color, and size) of the player's spaceship, the enemy craft, the ground missile bases and fuel depots, and the terrain over which (and beneath which) the player's ship flies, as well as the sequence in which the missile bases, fuel depots, and terrain appears. Also constant are the sounds heard whenever the player successfully destroys an enemy craft or installation or fails to avoid an enemy missile or laser. It is true, as appellants contend, that some of these sights and sounds will not be seen and heard during each play of the game in the event that the player's spaceship is destroyed before the entire course is traversed. But the images remain fixed, capable of being seen and heard each time a player succeeds in keeping his spaceship aloft long enough to permit the appearances of all the images and sounds of a complete play of the game. The repetitive sequence of a substantial portion of the sights and sounds of the game qualifies for copyright protection as an audiovisual work.
Appellants' claim that the work lacks originality proceeds along two lines. Repeating their attack on fixation, they assert that each play of the game is an original work because of the player's participation. The videotape of a particular play of the game, they assert, secured protection only for that one "original" display. However, the repeated appearance of the same sequence of numerous sights and sounds in each play of the game defeats this branch of the argument. Attacking from the opposite flank, appellants contend that the audiovisual display contains no originality because all of its reappearing features are determined by the previously created computer program. This argument is also without merit. The visual and aural features of the audiovisual display are plainly original variations sufficient to render the display copyrightable even though the underlying written program has an independent existence and is itself eligible for copyright. Nor is copyright defeated because the audiovisual work and the computer program are both embodied in the same components of the game. The same thing occurs when an audio tape embodies both a musical composition and a sound recording. Moreover, the argument overlooks the sequence of the creative process. Someone first conceived what the audiovisual display would look like and sound like. Originality occurred at that point. Then the program was written. Finally, the program was imprinted into the memory devices so that, in operation with the components of the game, the sights and sounds could be seen and heard. The resulting display satisfies the requirement of an original work.
We need not decide at what point the repeating sequence of images would form too insubstantial a portion of an entire display to warrant a copyright, nor the somewhat related issue of whether a sequence of images (e.g., a spaceship shooting down an attacking plane) might contain so little in the way of particularized form of expression as to be only an abstract idea portrayed in noncopyrightable form, see Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930), cert. denied, 282 U.S. 902, 51 S.Ct. 216, 75 L.Ed. 795 (1931). Assessing the entire effect of the game as it appears and sounds, we conclude that its repetitive sequence of images is copyrightable as an audiovisual display. See Atari, Inc. v. Amusement World, Inc., No. 81-803 (D.Md. Nov. 27, 1981); Midway Manufacturing Co. v. Drikschneider, No. 81-0-243 (D.Neb. July 15, 1981); Williams Electronics, Inc. v. Artic International, Inc., Civ. No. 81-1852 (D.N.J. June 24, 1981); Cinematronics, Inc. v. K. Noma Enterprise Co., Civ. No. 81-439 (D.Ariz. May 22, 1981).
Scramble (Konami 1981)
Questions:
- The court held that Scramble is fixed in a tangible medium because, "The audiovisual work is permanently embodied in a material object, the memory devices, from which it can be perceived with the aid of the other components of the game." In other words, the program is recorded on the ROM chip, and the processor uses the recording to produce the audiovisual work. Do you agree? What is fixed, the program or the audiovisual work?
- Stern claims a copyright in the audiovisual work itself, rather than the program used to produce the audiovisual work. What if a different program could produce the same audiovisual work?
Williams Electronics Inc v. Artic International Inc., 685 F. 2d 870 (3d Cir. 1982)
SLOVITER, Circuit Judge.
Defendant Artic International, Inc. appeals from the district court's entry of a final injunction order permanently restraining and enjoining it from infringing plaintiff's copyrights on audiovisual works and a computer program relating to the electronic video game DEFENDER. The district court severed plaintiff's demand for injunctive relief from its demand for monetary damages, and further severed plaintiff's claims of copyright infringement from its claims of trademark infringement and unfair competition. App. at 210a. These latter claims have not yet been adjudicated. However, because the injunction granted by the district court goes to the merits of the dispute and has "serious, perhaps irreparable, consequences", the order can be considered a "routine interlocutory injunctive order" and appealable under 28 U.S.C. § 1292(a)(1). See Shirey v. Bensalem Township, 663 F.2d 472, 476-77 & n.3 (3d Cir. 1981); Tokarcik v. Forest Hills School District, 665 F.2d 443, 446-47 (3d Cir. 1981).
Plaintiff-appellee Williams Electronics, Inc. manufactures and sells coin-operated electronic video games. A video game machine consists of a cabinet containing, inter alia, a cathode ray tube (CRT), a sound system, hand controls for the player, and electronic circuit boards. The electronic circuitry includes a microprocessor and memory devices, called ROMs (R ead O nly M emory), which are tiny computer "chips" containing thousands of data locations which store the instructions and data of a computer program. The microprocessor executes the computer program to cause the game to operate. Judge Newman of the Second Circuit described a similar type of memory device as follows: "The (ROM) stores the instructions and data from a computer program in such a way that when electric current passes through the circuitry, the interaction of the program stored in the (ROM) with the other components of the game produces the sights and sounds of the audiovisual display that the player sees and hears. The memory devices determine not only the appearance and movement of the (game) images but also the variations in movement in response to the player's operation of the hand controls." Stern Electronics, Inc. v. Kaufman, 669 F.2d 852, 854 (2d Cir. 1982).
In approximately October 1979 Williams began to design a new video game, ultimately called DEFENDER, which incorporated various original and unique audiovisual features. The DEFENDER game was introduced to the industry at a trade show in 1980 and has since achieved great success in the marketplace. One of the attractions of video games contributing to their phenomenal popularity is apparently their use of unrealistic fantasy creatures, a fad also observed in the popularity of certain current films. In the DEFENDER game, there are symbols of a spaceship and aliens who do battle with symbols of human figures. The player operates the flight of and weapons on the spaceship, and has the mission of preventing invading aliens from kidnapping the humans from a ground plane.
Williams obtained three copyright registrations relating to its DEFENDER game: one covering the computer program, Registration No. TX 654-755, effective date December 11, 1980; the second covering the audiovisual effects displayed during the game's "attract mode", Registration No. PA 97-373, effective date March 3, 1981; and the third covering the audiovisual effects displayed during the game's "play mode", Registration No. PA 94-718, effective date March 11, 1981. Readily visible copyright notices for the DEFENDER game were placed on the game cabinet, appeared on the CRT screen during the attract mode and at the beginning of the play mode, and were placed on labels which were attached to the outer case of each memory device (ROM). In addition, the Williams program provided that the words "Copyright 1980-Williams Electronics" in code were to be stored in the memory devices, but were not to be displayed on the CRT at any time.
Defendant-appellant Artic International, Inc. is a seller of electronic components for video games in competition with Williams. The district court made the following relevant findings which are not disputed on this appeal. Artic has 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 its 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. App. at 204a-206a. Based on the evidence before it, the district court found that the defendant Artic had infringed the plaintiff's computer program copyright for the DEFENDER game by selling kits which contain a computer program which is a copy of plaintiff's computer program, and that the defendant had infringed both of the plaintiff's audiovisual copyrights for the DEFENDER game by selling copies of those audiovisual works. App. at 207a-209a.
In the appeal before us, defendant does not dispute the findings with respect to copying but instead challenges the conclusions of the district court with respect to copyright infringement and the validity and scope of plaintiff's copyrights. The recent market interest in electronic audiovisual games has created an active market for original work, and as frequently happens, has also spawned copies, many of which have been the subject of a flurry of recent opinions. See, e.g., Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607 (7th Cir. 1982); Stern Electronics, Inc. v. Kaufman, 669 F.2d 852 (2d Cir. 1982); Midway Manufacturing Co. v. Omni Video Games, Inc., 668 F.2d 70 (1st Cir. 1981); Midway Manufacturing Co. v. Artic International, Inc., No. 80 C 5863 (N.D.Ill. March 10, 1982); Atari, Inc. v. Amusement World, Inc., No. Y-81-803 (D.Md. Nov. 27, 1981); Midway Manufacturing Co. v. Drikschneider, 543 F.Supp. 466, (D.Neb. 1981); In Re Certain Coin-Operated Audiovisual Games and Components Thereof (viz, Pac-Man and Rally-X ), No. 337-TA-105 (International Trade Commission July 1, 1982); In Re Coin-Operated Audio-Visual Games and Components Thereof, No. 337-TA-87 (International Trade Commission June 25, 1981).
In the case before us, the parties agreed at the district court level that the only issues to be decided on the injunction were legal ones. App. at 199a. Essentially, defendant Artic attacks the validity and the scope of the copyrights which it has been found by the district court to have infringed. Plaintiff possesses certificates of registration issued by the Copyright Office. Under the Copyright Act, these certificates constitute prima facie evidence of the validity of plaintiff's copyright. 17 U.S.C. § 410(c). Defendant, therefore, has the burden of overcoming this presumption of validity. See Flick-Reedy Corp. v. Hydro-Line Manufacturing Co., 351 F.2d 546, 549 (7th Cir. 1965), cert. denied, 383 U.S. 958, 86 S.Ct. 1222, 16 L.Ed.2d 301 (1966).
With respect to the plaintiff's two audiovisual copyrights, defendant contends that there can be no copyright protection for the DEFENDER game's attract mode and play mode because these works fail to meet the statutory requirement of "fixation." Section 101 of the 1976 Copyright Act, 17 U.S.C. § 102, provides in part:
(a) Copyright protection subsists ... in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
....
(6) motion pictures and other audiovisual works;
....
(emphasis added). The fixation requirement is defined in section 101 in relevant part as follows:
A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.
Defendant claims that the images in the plaintiff's audiovisual game are transient, and cannot be "fixed." Specifically, it contends 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.
We reject this contention. 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. Here the original audiovisual features of the DEFENDER game repeat themselves over and over. The identical contention was previously made by this defendant and rejected by the court in Midway Manufacturing Co. v. Artic International, Inc., supra, slip op. at 16-18. Moreover, the rejection of a similar contention by the Second Circuit is also applicable here. The court stated:
The (video game's) display satisfies the statutory definition of an original "audiovisual work," and the memory devices of the game satisfy the statutory requirement of a "copy" in which the work is "fixed." The Act defines "copies" as "material objects ... in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device" and specifies that a work is "fixed" when "its embodiment in a copy ... is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." 17 U.S.C.App. § 101 (1976). The audiovisual work is permanently embodied in a material object, the memory devices, from which it can be perceived with the aid of the other components of the game. Stern Electronics, Inc. v. Kaufman, 669 F.2d at 855-56 (footnote omitted; emphasis added). See also Midway Manufacturing Co. v. Drikschneider, supra, at 479-80; Atari, Inc. v. Amusement World, Inc., supra.
Defendant also apparently contends 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. 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. See Stern Electronics, Inc. v. Kaufman, 669 F.2d at 855-56. Furthermore, there is no player participation in the attract mode which is displayed repetitively without change.
Defendant argues that there can be no copyright protection for the ROMs because they are utilitarian objects or machine parts. Defendant's argument in this regard is misdirected. The issue in this case is not whether plaintiff, if it sought, could protect the ROM itself under the copyright laws. Rather, before us is only the plaintiff's effort to protect its artistic expression in original works which have met the statutory fixation requirement through their embodiment in the ROM devices. Defendant Artic's challenge to the validity of a copyright based upon this "utilitarian object" argument was recently raised by Artic and rejected by the district court in Midway Manufacturing Co. v. Artic International, Inc., supra, slip op. at 19-20. In granting a preliminary injunction against Artic's infringement of audiovisual copyrights on similar electronic video games, Judge Decker stated:Artic initially claims that Midway's attempt to copyright the audiovisual aspects of its games was, in reality, an attempt to copyright the ROMs in the games. Because the ROMs are utilitarian objects, they may not be copyrighted .... While the court agrees that utilitarian objects may not be copyrighted, it appears that Artic has misconstrued the copyrights at issue in this case. As noted above, Midway has sought and obtained protection for the audiovisual aspects of its games that appear on the screen. Midway no more restricts the use of ROMs than an author with a valid copyright restricts the use of books. Id. at 19 (citation omitted).
. . .
Defendant argues that the basic question presented is whether the ROMs, which it views as part of a machine, can be considered a "copy" of a copyrighted work within the meaning of the Copyright Act. Defendant argues that a copyright for a computer program is not infringed when the program is loaded into electronic memory devices (ROMs) and used to control the activity of machines. That use, it claims, is a utilitarian one not within the scope of the Copyright Act. We have already rejected defendant's similar argument in the context of the copyrights for the audiovisual works. Defendant makes the further point that when the issue is the copyright on a computer program, a distinction must be drawn between the "source code" version of a computer program, which it would hold can be afforded copyright protection, and the "object code" stage, which it contends cannot be so protected. Its theory is that a "copy" must be intelligible to human beings and must be intended as a medium of communication to human beings.
The answer to defendant's contention is in the words of the statute itself. A "copy" is defined to include a material object in which a work is fixed "by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. § 101 (emphasis added). By this broad language, Congress opted for an expansive interpretation of the terms "fixation" and "copy" which encompass technological advances such as those represented by the electronic devices in this case. We reject any contention that this broad language should nonetheless be interpreted in a manner which would severely limit the copyrightability of computer programs which Congress clearly intended to protect. We cannot accept defendant's suggestion that would afford an unlimited loophole by which infringement of a computer program is limited to copying of the computer program text but not to duplication of a computer program fixed on a silicon chip. This was also the conclusion reached in Tandy Corp. v. Personal Micro Computers, Inc., 524 F.Supp. 171, 175 (N.D.Cal.1981) (Peckham, C. J.), albeit in the context of computers rather than video games.
The only authority upon which defendant relies for its claim that plaintiff is entitled to no copyright protection is the district court's opinion in Data Cash Systems, Inc. v. JS&A Group, Inc., 480 F.Supp. 1063 (N.D.Ill.1979), aff'd on other grounds, 628 F.2d 1038 (7th Cir. 1980). Significantly, the statements of the district court in that case that the copying of ROMs was not actionable under the copyright laws was not the basis of the affirmance by the Court of Appeals which expressly stated that it did not reach the merits of this issue. 628 F.2d at 1041. It has been suggested that the Court of Appeals implicitly reversed the district court on that issue. See 2 Nimmer on Copyright, § 8.08 at 8-106.3 n.18 (1981); Tandy Corp. v. Personal Micro Computers, Inc., 524 F.Supp. at 175. The district court's analysis in Data Cash has been expressly rejected in both the video game audiovisual copyright context, Midway Manufacturing Co. v. Artic International, Inc., supra, slip op. at 27-29, and the computer program copyright context, Tandy Corp. v. Personal Micro Computers, Inc., 524 F.Supp. at 175. Accordingly, we find that defendant has failed to provide any persuasive reason which would overcome the statutory presumption of validity of the copyright registration and we will affirm the district court's grant of an injunction.
. . .
Defender (Williams Electronics, Inc. 1980)
Defense Command (Artic International, Inc. 1981)
Questions:
- The court held that the audiovisual elements of Defender were fixed in a tangible medium because "the original audiovisual features of the DEFENDER game repeat themselves over and over." Do you agree?
- If a videogame is fixed, why isn't a performance fixed? Or rather, if a performance isn't fixed, why is the audiovisual element of a videogame fixed?
- With respect to audio works, copyright distinguishes between compositions and performances. Is that distinction relevant to video games?
No comments:
Post a Comment