Atari Games Corp. v. Oman

• Citation: 693 F. Supp. 1204
• Decision Date: 25 May 1988
• Docket Number: Civ. A. No. 88-0021 JHP.
• Parties: ATARI GAMES CORPORATION, Plaintiff, v. Ralph OMAN, United States Register of Copyrights, Defendant.
• Court: U.S. District Court — District of Columbia

693 F. Supp. 1204

ATARI GAMES CORPORATION, Plaintiff, v. Ralph OMAN, United States Register of Copyrights, Defendant.

Civ. A. No. 88-0021 JHP.

United States District Court, District of Columbia.

May 25, 1988.

Robert S. Budoff, Howrey & Simon, Washington, D.C., for plaintiff.

Nathan Dodell, Asst. U.S. Atty., Washington, D.C., for defendant.

MEMORANDUM ORDER

JOHN H. PRATT, District Judge.

The narrow question presented by this action is whether the United States Register of Copyrights ("Register") abused his discretion in denying plaintiff's application to register a claim to copyright in a video game entitled "BREAKOUT." Plaintiff Atari Games Corporation ("Atari") created BREAKOUT in 1975,¹ and introduced and began marketing the game the following year with immediate and immense success. More than a decade later, on February 6, 1987, Atari sought registration by the Register of a copyright to BREAKOUT.² On February 13, 1987, and again upon reconsideration on May 22, 1987, the Copyright Office refused to register the copyright on the basis that the work "did not contain at least a minimum amount of original pictorial or graphic authorship, or authorship in sounds." Feb. 13, 1987 letter at 1, included in Administrative Record. Finally, by letter dated December 7, 1987, the Copyright Office issued its final agency action, again refusing to register the copyright in BREAKOUT.

Plaintiff filed the instant action on January 6, 1988, challenging the agency's final action. The parties promptly filed cross-motions for summary judgment, which have been fully briefed. In its initial application for copyright, Atari submitted a terse but accurate description of BREAKOUT's operation:

The player commands a paddle which is movable across the screen. A horizontal band or wall formed by layers of bricks (i.e., rectangles) divides the screen above the paddle. A ball bounces back and forth between the wall and the paddle, rebounding off of each and removing a section of the wall each time it is hit by the ball. Each time a section or "brick" is removed the player scores points. When the player misses the ball with the paddle, the ball is replaced.

Synopsis of Deposit for Copyright Registration at 1. This characterization makes clear that BREAKOUT is a form of ball-and-paddle game, not entirely dissimilar to a solitary ping pong or tennis game. It is the audiovisual display and accompanying sounds of BREAKOUT — i.e., the "audiovisual work" — that Atari seeks to have registered for copyright protection.

There can be no doubt that video games, like other audiovisual works, are entitled to copyright protection provided they satisfy the prerequisites for copyrightability under the Copyright Act ("Act"), 17 U.S.C. § 101 et seq.³ Section 102 of the Act provides for the copyright of "original works of authorship." 17 U.S.C. § 102. This language isolates two watermarks of a copyrightable work: it must be "original" — i.e., a work of independent creation — and it must be a "work of authorship" — i.e., the fruit of artistic expression and intellectual labor. Reader's Digest Assoc. v. Conservative Digest, Inc., 821 F.2d 800, 806 (D.C.Cir.1987) (identifying originality and creativity elements of copyrightable materials); Baltimore Orioles, Inc. v. Major League Baseball Players Assoc., 805 F.2d 663, 668 (7th Cir.1986), cert. denied, ___ U.S. ___, 107 S.Ct. 1593, 94 L.Ed.2d 782 (1987) (same). There is no dispute in this case, and the Register expressly recognized, that BREAKOUT originated with or was independently created by Atari. May 22, 1987 letter at 2. The question for the Register, then, was whether the video game is a "work of authorship," that is, whether it is the result of the minimally required amount of creative expression.

The question of whether a particular work reflects a sufficient quantum of creativity to satisfy the copyright laws is not susceptible to bright line rules or broad principles. John Muller & Co., Inc. v. New York Arrows Soccer Team, 802 F.2d 989, 990 (8th Cir.1986) ("there is no simple way to draw the line between `some creative authorship' and not enough creative authorship"). It is in part for this reason that the Register is entrusted in the first instance with determining whether a work is copyrightable. Such a decision necessarily requires the exercise of informed discretion, and the Register, in part due to having to make such determinations on a daily basis, is generally recognized to possess considerable expertise over such matters. Norris Industries, Inc. v. International Tel. & Tel. Corp., 696 F.2d 918, 922 (11th Cir.), cert. denied, 464 U.S. 818, 104 S.Ct. 78, 78 L.Ed.2d 89 (1983) (recognizing "considerable expertise of the Register" where determinations at issue "are routinely made by the Register and are unquestionably related to the substantive area of the agency's business"); Esquire, Inc. v. Ringer, 591 F.2d 796, 801-02 (D.C.Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1217, 59 L.Ed.2d 456 (1979) (recognizing certain areas in which the Register "has considerable expertise"); cf. Bouve v. Twentieth Century-Fox Film Corp., 122 F.2d 51, 53 (D.C. Cir.1941) (Copyright Act "establishes a wide range of selection within which discretion must be exercised by the Register ..."). For this reason courts accord deference to the Register's decisions to refuse or accede to copyright registration, and overturn such decisions only if they reflect an abuse of discretion. Esquire, 591 F.2d at 805-06; John Muller & Co., 802 F.2d at 990; Norris Industries, 696 F.2d at 922.

The court's task, then, is to determine whether the Register abused his discretion in refusing to register Atari's copyright claim in BREAKOUT. The administrative record consists of not one but three independent decisions rendered by the Copyright Office in consideration of Atari's application for copyright status. As noted above, the copyright examiners assigned to evaluate Atari's application first refused to register Atari's claim by letter issued on February 13, 1987, and later reaffirmed the decision on reconsideration by letter dated May 22, 1987. The third and most important authoritative statement issued from the Register's office on December 17, 1987, this letter constituting the final agency action on Atari's claim. The cumulative impression left by these opinions — totalling some seven single-spaced pages — is that of a thoughtful and well-orchestrated effort to set forth the applicable statutory and regulatory framework, examine the relevant case law, and assess plaintiff's application in light of these pertinent considerations.

The crux of the Register's⁴ position is that the audiovisual work presented by Atari "does not contain at least a minimum amount of original pictorial or graphic authorship, or authorship in sounds," and thus does not warrant copyright status. Feb. 13, 1987 letter at 1; see also Dec. 7, 1987 letter at 1 (requiring "some non-trivial amount of creative authorship"); May 22, 1987 letter at 2 ("the present work, although independently created, does not contain enough original authorship to be registered as an audiovisual work"). The letters noted that the BREAKOUT display consists of common geometric shapes, four bands of colored rectangles, and three tones heard when the "ball" strikes various objects on the screen. The Register concluded that these features, whether viewed independently or in terms of "the arrangement of these few items on the screen," did not establish a basis on which to premise copyright registration. Dec. 7, 1987 letter at 2.⁵ This conclusion rested in part on an interpretation of Copyright Office regulations which preclude copyright registration of "words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring...." 37 C.F.R. § 202.1(a) (1987). Finally, the Register reviewed and distinguished cases referenced by Atari which upheld the copyrightability of other video games.⁶

The Register's analysis and conclusion were well within the bounds of his discretion, and reflected a reasonable application of controlling law and copyright regulations to the facts before him. Courts and commentators alike have recognized that there are instances, albeit rare, in which "admittedly independent efforts are deemed too trivial or insignificant to support copyright." 1 M. Nimmer, Nimmer on Copyright ("Nimmer") § 2.01B at 2-13 (1982); see also Magic Marketing, Inc. v. Mailing Services of Pittsburgh, Inc., 634 F.Supp. 769, 772 (W.D.Pa.1986) (holding that envelopes with lettering "do not exhibit a sufficient degree of creativity to be copyrightable"). It is no less true in the context of video games that a "sequence of images ... might contain so little in the way of particularized form of expression as to be only an abstract idea portrayed in noncopyrightable form." Stern Electronics, Inc. v. Kaufman, 669 F.2d at 857 (dictum). It simply is not the case, in short, that video games are per se copyrightable, or by definition more expressive and creative than other artistic mediums. The Register cited the above-quoted passages, and apparently concluded that BREAKOUT is one of those uncommon instances in which any expressive value contained therein is de minimis, and thus not sufficient for copyright purposes.

This conclusion does not constitute an abuse of discretion, whether BREAKOUT is viewed in a vacuum or in comparison to video games which have been copyrighted. In reaching its conclusion, the Register construed both the Copyright Act, which it is entrusted to administer, and the Act's implementing regulations. In this context judicial review is particularly limited. Esquire, 591 F.2d at 800-02 (according considerable weight to Register's interpretation of copyright implementing regulation); Chemical Mfrs. Assoc. v. N.R.D.C., 470 U.S. 116, 125, 105 S.Ct. 1102, 1107, 84 L.Ed.2d 90 (1985) (judicial...