Federal Copyright Law in the Computer Era: Protection for the Authors of Video Games

• Publication year: 1983

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 7, No. 2WINTER 1984

Federal Copyright Law in the Computer Era: Protection for the Authors of Video Games

The quest for novel leisure time activity, augmented by new technologies, has created a computer video game mania(fn1) in the United States. Understandably, piracy claims have accompanied the marketplace popularity of such games. Confronted with a flurry of copyright infringement claims over the last several years, courts have uniformly indicated that the audiovisual display of a video game merits federal copyright protection.(fn2) That protection, however, is far from complete. If the rival display varies in even a minor detail, courts may find no copyright infringement. Under the aegis of a "substantial similarity" test,(fn3) courts have determined that minor variations in details of the game pieces can result in no actionable appropriation of the copyrighted work.(fn4)

Thus far, courts ignore similarities between the games' underlying computer programs. By ignoring these similarities, courts are not adequately recognizing and protecting the significant expenditures of intellectual and economic effort required in the development of video games. The effort of authorship can be sufficiently protected only by linking protection to the full extent of the author's intellectual effort. Focusing on the final product solely in the form of the audiovisual display fails to recognize the unique intellectual effort required to arrive at this final display. It ignores the central and significant contributions added by using a computer program to generate a game's graphics and activities. Only by extending copyright protection to the underlying computer program contained in the game's circuitry can the efforts of authorship be fully protected.

This Comment will analyze both the manner and scope of copyright protection currently afforded computer video games. It will then discuss the means available under federal copyright laws to protect the underlying computer program and conclude that the game should be regarded as a unit. The effect of treating the game as a unit of audiovisual and computer elements-as opposed to considering only the audiovisual display-will be to raise certain appropriations to the level of copyright infringement.

The United States Constitution authorizes long-term private copyright monopolies.(fn5) This authorization is predicated upon dual principles: that economic incentives are a valuable means of personal motivation, and that such incentives must necessarily be limited for the benefit of the public at large.(fn6) The major public concern is for the free dissemination and development of information within our society.(fn7) On a certain level, the public is afforded maximum access to information when an artist or author can preserve his interest in a work and still present it publicly without fearing piracy.(fn8) Otherwise, an author might be tempted to sell his work to wealthy private collectors rather than have it printed for mass distribution.

Progress in the arts, however, is a process of accretion through influence by prior works. Providing too much protection for very simple game themes and graphics might forestall the development of more complex works.(fn9) Thus, in the normal course of most infringement claims involving simple works, it makes sense to deny protection and thereby increase the basic information available within the public domain.

Although denying protection for simple graphics in traditional gameboards may serve the public interest by fostering continued development, limiting protection for computer-generated games may serve the opposite result. The adaptation of computer programming and computer technology to traditional game concepts has significantly altered the intellectual efforts required for game authorship.(fn10) Moreover, computer-generated games require significant capital investments. Thus, an author venturing into the video game marketplace may copy, in large part, a popular game rather than expend the efforts and monies required to develop and promote a new work. The balance between economic incentive and freedom of information may become too heavily weighted in the latter's favor. The incentive may be to copy rather than to create.

Computer video games, however, are amenable to protection under federal copyright law by means other than simply copyrighting the images displayed upon the screen. For a work to be copyrightable, the Constitution simply requires an "author" and a "writing."(fn11) Congress codified the requirements for authorship and writing in section 102 of the 1976 Copyright Act ("1976 Act").(fn12) Section 102 protects "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."(fn13) Although section 102 does not expressly include video games or computer programs in its list of mediums of authorship,(fn14) the list is not exclusive.(fn15)

The requirements for authorship and originality are easily satisfied in a video game work. The courts define "author" to mean "originator, he to whom anything owes its origin."(fn16) "Originality," in the copyright sense, means "little more than a prohibition of actual copying."(fn17) Imagination is not a requirement for authorship, as the common understanding might indicate; mere diligence in the compilation of mundane facts satisfies this requirement.(fn18)

The courts have no difficulty in concluding that the audiovisual display, which is fixed in a tangible medium by the game's Read Only Memory ("ROM"),(fn19) meets the section 102 requirements for copyright protection.(fn20) Although variations in any given display result from the participation and interaction of the person playing the game, a sufficient recurrence of related images exists for viable protection.(fn21)

Although the audiovisual display acquires copyright protection under section 102, the scope of that protection may be extremely limited under judicially created principles determining when one work infringes upon the protected area of another work. The majority of video game cases deal with nearly identical copying.(fn22) Several decisions, however, address the limited scope of protection afforded a valid copyright in the audiovisual display.(fn23) In one such case, Atari, Inc. v. North American Phillips Consumer Electronics Corp.,(fn24) the court articulated the limited scope afforded video game audiovisual displays. The Atari court ruled that the use of a figure in pursuit, a corral, and a maze pattern in the "Pac Man" game were not protected because they are unprotectable ideas(fn25) and readily available game themes(fn26) that are part of the public domain. Only the game characters-the "gobbler," a round yellow figure with a "V"-shaped mouth, and the pursuing "ghosts" which have animated eyes and change color-were deemed fanciful enough to warrant copyright protection.(fn27) This case indicates, in effect, that a potential duplicator of a Pac Man-like game need only alter a few essential game pieces to avert copyright protection.

A Maryland district court employed substantially the same analysis in Atari, Inc. v. Amusement World, Inc.,(fn28) which concerned infringement of the game "Asteroids." Both games in Amusement World consisted of spacecraft in a field of rock-like figures and enemy spacecraft which must be shot down or avoided. In Amusement World, the court ruled that the plot of maneuvering spacecraft in an asteroid field was a scene a faire(fn29) and therefore not protected.(fn30) Furthermore, the court deemed the images of spacecraft to be insufficient expressive elements for copyright protection because they were not separable from the mere idea of spacecraft.(fn31) "Defendants used plaintiffs idea and those portions of plaintiffs expression that were inextricably linked to that idea. . . . The remainder of defendants' expression is different from plaintiffs expression."(fn32)

Another case, Atari, Inc. v. Ken Williams,(fn33) also involved the "Pac Man" game. The disputed work, "Jawbreakers," consisted of a game visually similar to the "Pac Man" game. The appearance of the central figure in Jawbreakers differed from the "Pac Man" characters by having serrated teeth, and the pursuing figures had different colors and faces. The court found no actionable copying because the similarities were based upon common game themes, including the rules, strategy, and progress of the game's play-all unprotectable ideas.(fn34)

Federal copyright law authorizes means of protecting the game other than relying solely upon the resultant display. Copyright law can be used to protect the game's computer program when expressed in textual format,(fn35) i.e., a source program.(fn36) The source program is the first level of program development and is both written and readable by humans. The requirements for copyright protection-original authorship and a writing fixed in a tangible medium-are easily met by a computer program in the source stage.(fn37) With video games, and many other computer uses, however, the source program is compiled or transformed into a language, the object code, which can only be read by a machine. This code is then chemically encoded onto microchips, creating ROMs or...