685 F.2d 870 (3rd Cir. 1982), 81-2407, Williams Electronics, Inc. v. Artic Intern., Inc.

Docket Nº:81-2407.
Citation:685 F.2d 870
Party Name:1982 Copr.L.Dec. P 25,432 WILLIAMS ELECTRONICS, INC. v. ARTIC INTERNATIONAL, INC., Appellant.
Case Date:August 02, 1982
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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685 F.2d 870 (3rd Cir. 1982)

1982 Copr.L.Dec. P 25,432

WILLIAMS ELECTRONICS, INC.

v.

ARTIC INTERNATIONAL, INC., Appellant.

No. 81-2407.

United States Court of Appeals, Third Circuit

August 2, 1982

Argued May 25, 1982.

Rehearing Denied Aug. 24, 1982.

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Melvin M. Goldenberg (Argued), Thomas C. Elliott, Jr., McDougall, Hersh & Scott, Chicago, Ill., for appellee.

Richard G. Kinney (Argued), Kinney & Niblack, Chicago, Ill., Carl Klotz, Jeffer, Hopkinson & Vogel, Hawthorne, N. J., for appellant.

Before SEITZ, Chief Judge, and SLOVITER and BECKER, Circuit Judges.

OPINION

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). 1

Plaintiff-appellee Williams Electronics, Inc. manufactures and sells coin-operated electronic video games. A video game machine

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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", 2 Registration No. PA 97-373, effective date March 3, 1981; and the third covering the audiovisual effects displayed during the game's "play mode", 3 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

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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...

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