Allen v. Academic Games League of America, Inc.

• Citation: 89 F.3d 614
• Decision Date: 09 April 1996
• Docket Number: No. 94-56593,94-56593
• Parties: 1996 Copr.L.Dec. P 27,540, 39 U.S.P.Q.2d 1470, 96 Cal. Daily Op. Serv. 5183, 96 Daily Journal D.A.R. 8379 Robert W. ALLEN, individually and d/b/a National Academic Games Project, Plaintiff-Appellant, v. ACADEMIC GAMES LEAGUE OF AMERICA, INC., a corporation, R. Lawrence Liss, an individual, Neal Golden, an individual, James Davis, an individual, Stuart E. White, an individual, Jean Skomra, an individual, and Does 1 through 25, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 614

89 F.3d 614

1996 Copr.L.Dec. P 27,540, 39 U.S.P.Q.2d 1470,

96 Cal. Daily Op. Serv. 5183,

96 Daily Journal D.A.R. 8379

Robert W. ALLEN, individually and d/b/a National Academic Games Project, Plaintiff-Appellant, v. ACADEMIC GAMES LEAGUE OF AMERICA, INC., a corporation, R Lawrence Liss, an individual, Neal Golden, an individual James Davis, an individual, Stuart E. White, an individual Jean Skomra, an individual, and Does 1 through 25 Defendants-Appellees.

No. 94-56593.

United States Court of Appeals, Ninth Circuit.

Submitted April 9, 1996. ^*

Decided July 12, 1996.

Donald G. Norris and Debra K. Butler, Burton & Norris, Pasadena, California, for plaintiff-appellant.

Charles H. Carpenter, Glendale, California, for defendants-appellees James Davis and Stuart White.

Joseph R. Zamora, Liebman, Reiner & Walsh, Los Angeles, California, for defendant-appellee Neal Golden.

Appeal from the United States District Court for the Central District of California.

Before: SCHROEDER and LEAVY, Circuit Judges, and TRIMBLE, ^** District Judge.

TRIMBLE, District Judge:

Due to a controversy over the use of academic games in a tournament setting, Robert W. Allen (Allen) individually and d/b/a National Academic Games Project (NAGP) filed suit against Academic Games Leagues of America, Inc., R. Lawrence Liss, Neal Golden, James Davis, Stuart E. White, and Jean Skomra (collectively referred to as AGLOA) alleging copyright, trademark, and tradename infringement. AGLOA filed a motion for summary judgment against Allen's claims for copyright infringement. The district court granted the motion and Allen timely appealed.

I. FACTS

Since the 1960's, Robert W. Allen has been involved in the development of academic games, including the games at issue in this appeal, A MAN CALLED MR. PRESIDENT, ¹ EURO-CARD or WORLD CARD, ² linguiSHTIK, ³ and PROPAGANDA. ⁴ Allen has been employed in various capacities for schools and school districts for the purpose of integrating the subject games, as well as other academic games, into classroom settings and student competitions. For several years, middle and high school level students from six states have participated in national tournaments that Allen conducted under the name of National Academic Games Project (NAGP), a sole proprietorship of Allen. The highest number of students attending a NAGP tournament was 900 in the mid 1980's and approximately 800 students attended the tournament in 1991.

In 1992, a non-profit corporation, Academic Games League of America (AGLOA) was formed to conduct a national tournament that used some of Allen's academic games as a culmination to local and regional student competitions that also used the subject games during the school year. Prior to forming AGLOA, the individual respondents had significant roles in the NAGP national tournaments for many years. However, while each of the individual respondents was principally involved in AGLOA activities, Allen was not included. In fact, AGLOA was formed due to a personality conflict that developed between Allen and the individual respondents and because of disagreements on how to conduct and develop the national tournament.

Beginning in April, 1992, AGLOA conducted annual tournaments that coincided with Allen's NAGP national tournament. The tournaments occurred at the same time because of a need to wait for the completion of local and regional competitions and to accommodate the activities of graduating high school seniors. The subject games used at the AGLOA tournaments were purchased and brought to the tournaments by the participating students and schools. To date, three AGLOA tournaments have been conducted involving approximately 500 students, in 1992, to 900 students, in 1994.

At each AGLOA tournament, the subject games were played under rulebooks developed by an AGLOA committee that continuously revised the rules to enable students to play each game under tournament conditions while enhancing student educational value and interest in the games. Tournament rulebooks used at NAGP tournaments were not copyrighted by Allen and were actually developed and revised by a committee of persons that consisted primarily of the individual respondents. While each of the subject games contains a game manual, AGLOA tournament rulebooks do not repeat the rules found in the game manuals, but refer to the rules and elaborate on how each game is to be played in a tournament setting.

Allen derives income from the sale of each of the subject academic games. AGLOA buys games from Allen to sell directly to participating schools at cost and does not copy any of Allen's copyrighted materials in their tournaments. The only players in AGLOA's leagues are students. Allen has never objected to the playing or use of his academic games by students, who have played Allen's games in regional leagues for over twenty years.

II. DISCUSSION

A. Public Performance

The Copyright Act of 1976 confers upon copyright holders the exclusive right to perform and authorize others to perform their copyrighted works publicly. See 17 U.S.C. § 106(4). "Perform" and "publicly" are defined in the Copyright Act as, respectively, "to recite, render, play, dance, or act it, either directly or by means of any device or progress ..." and "to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered...." 17 U.S.C. § 101. In applying these statutory definitions to the playing of Allen's games in a tournament setting, we conclude that the playing of a game is not a "performance" within the meaning of the Copyright Act.

Allen maintains that the language of Section 106(4) precludes AGLOA from conducting their national tournament because it constitutes a public performance of his protected literary works, the subject copyrighted games. Allen contends that a purchaser of a board game only obtains the right to play the board game in settings that are not "public" because playing or performing the games publicly is a right held exclusively by the copyright holder under § 106(4). However, the interpretation of "play," as used to define "perform" in § 101 of the Copyright Act, has generally been limited to instances of playing music or records. See Polygram Intern. Pub., Inc. v. Nevada/TIG, Inc., 855 F.Supp. 1314, 1321 (D.Mass.1994); Hickory Grove Music v. Andrew Andrews, 749 F.Supp. 1031, 1036 (D.Mont.1990), but cf. Red Baron-Franklin Park, Inc. v. Taito Corp., 883 F.2d 275, 278-79 (4th Cir.1989), cert. denied, 493 U.S. 1058, 110 S.Ct. 869, 107 L.Ed.2d 952 (1990), (holding that a video arcade owner's use of copyrighted circuit boards in coin-operated video machines available to the public for a fee constituted public performance of the copyrighted work under § 106(4)). The term "play" has not been extended to the playing of games. To do so would mean interpreting the Copyright Act in a manner that would allow the owner of a copyright in a game to control when and where purchasers of games may play the games and this court will not place such an undue restraint on consumers.

Whether privately in one's home or publicly in a park, it is understood that games are meant to be "played." In this situation, the games are being played by students who come together for the purpose of friendly academic competition. There is no indication that this nonprofit corporation, AGLOA, and the individual respondents are making the subject games available to the public for a fee. The students, schools, and school districts use their own games, purchased from Allen, in the tournaments, and respondents are merely organizers of this event. Moreover, AGLOA's tournaments are limited to students who participated in regional competitions which also involved the playing of Allen's games.

Even if the playing of games could constitute a performance, we would have to recognize the applicability of the fair use doctrine under Section 107 of the Copyright Act. This section allows the fair use of a copyrighted work in such instances as for...