979 F.2d 242 (D.C. Cir. 1992), 91-5326, Atari Games Corp. v. Oman

Docket Nº:91-5326.
Citation:979 F.2d 242
Party Name:ATARI GAMES CORPORATION, Appellant, v. Ralph OMAN, Register of Copyrights, Appellee.
Case Date:November 20, 1992
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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979 F.2d 242 (D.C. Cir. 1992)



Ralph OMAN, Register of Copyrights, Appellee.

No. 91-5326.

United States Court of Appeals, District of Columbia Circuit.

November 20, 1992

Argued Oct. 20, 1992.

Appeal from the United States District Court for the District of Columbia (Civ. Action No. 88-0021).

A. Sidney Katz, with whom James P. White and Laurie A. Haynie, Chicago, Ill., were on the brief, for appellant.

Fred E. Haynes, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., Dorothy Schrader, Gen. Counsel, U.S. Copyright Office, William J. Roberts, Atty. Adviser, U.S. Copyright Office, John D. Bates, R. Craig Lawrence, and Michael J. Ryan, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.


Opinion for the court filed by Circuit Judge RUTH BADER GINSBURG.

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This is the replay of the match refereed by this court in Atari Games Corp. v. Oman, 888 F.2d 878 (D.C.Cir.1989) (Atari I), reversing 693 F.Supp. 1204 (D.D.C.1988) (summary judgment that Register of Copyright's refusal to register video game BREAKOUT as an audiovisual work was not an abuse of discretion). In Atari I, this court remanded the matter because we were unable to determine what standard the Copyright Office in fact used to deny registration to the audiovisual work before it, i.e., the video game BREAKOUT. See Atari I, 888 F.2d at 879 (court's opinion); id. at 887 (Silberman, J., concurring in the judgment). The court found the Register's letter refusing registration opaque in four key areas: the standard of creativity; the consideration of the work as a complex whole; the use of the idea/expression dichotomy; and the relevance of the scenes a faire doctrine to the issue of copyrightability.

After remand, the Register again refused registration. Reconsideration of "Breakout," Letter Ruling, April 30, 1990 (Letter). The district court again granted summary judgment to the Register. Memorandum Opinion and Order, Atari Games Corp. v. Oman, No. 88-21 (D.D.C. Aug. 13, 1991). Testing the Register's disposition only for "abuse of discretion," see OddzOn Products, Inc. v. Oman, 924 F.2d 346, 347 (D.C.Cir.1991) (applying the standard set out in 5 U.S.C. § 706(2)(A)), we hold that the rejection of BREAKOUT was unreasonable when measured against the Supreme Court's instruction that "the requisite level of creativity [for copyrightability] is extremely low." Feist Publications v. Rural Tel. Serv. Co., --- U.S. ----, ----, 111 S.Ct. 1282, 1287, 113 L.Ed.2d 358, 369 (1991).


BREAKOUT is a relatively early video game of comparative simplicity. The sound accompaniment is four basic tones. The screen shows the two players' scores at the top. The players move a "paddle" to hit a "ball" against a "wall." The wall is built of eight rows of rectangles arranged in four monochromatic stripes (red, amber, green, yellow). When the square blue ball hits a rectangle, the rectangle vanishes. When the ball breaks through the wall of rectangles to the empty space beyond, it ricochets at greatly increased speed until it reemerges. Both the ball's speed and the size of the rectangular paddle change during play. The ball's movement does not follow the laws of physics; instead, the angle of the ball's rebound depends solely on where it impacts the paddle.

In his second refusal to register BREAKOUT, the Register characterized the representations of the wall, ball, and paddle as "simple geometric shapes and coloring" which "per se are not copyrightable." Letter at 3 (citing 37 C.F.R. § 202.1 (1988)). 1 Viewing BREAKOUT "as a whole," the Register found "no original authorship in either the selection or arrangement of the images or their components." Id. at 3-4. He therefore refused registration, stating in conclusion that "the display screens both individually and as a whole simply lack[ ] sufficient creativity to make them registerable as audiovisual works." Letter at 5.


To be copyrightable, a work must be fixed, original (i.e., not copied), and a "work

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of authorship." 17 U.S.C. § 102; see Feist, --- U.S. at ---- - ----, 111 S.Ct. at 1287-88 (requirements for copyrightability). The only dispute now presented concerns BREAKOUT's qualification as a "work of authorship," which on statutory and constitutional grounds necessitates a modicum of creativity. See Feist, --- U.S. at ---- - ----, ---- - ----, 111 S.Ct. at 1287-88, 1296-97. 2

BREAKOUT was presented to the Register as an audiovisual work:

"Audiovisual works" are 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. § 101. In Atari I, we inquired whether the Register considered video games, although fitting within the "audiovisual works" category, to require a different level of creativity than other works. See Atari I, 888 F.2d at 888 (Silberman, J., concurring). The Register has disclaimed any such approach. He stated that

[t]he Copyright Office is applying the same creativity standard to the videogame "Breakout" as it would to any other type of work, be it a pictorial, graphic, dramatic, musical, or literary work, etc.

Letter at 2; see also id. at 1 ("We have applied the generally accepted modest degree of creativity standard[.]").

In Feist, decided eleven months after the Register reconsidered BREAKOUT, 3 the Supreme Court extensively discussed and elucidated the creativity standard; the Court left no doubt that the requirement is indeed modest:

[T]he requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, "no matter how crude, humble or obvious" it might be.

Id., --- U.S. at ----, 111 S.Ct. at 1287 (quoting M. Nimmer & D. Nimmer (Nimmer), COPYRIGHT § 1.08[C]. 4 While enunciating the copyright creativity standard for all works, Feist deals with a compilation of facts:

A "compilation" is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.

17 U.S.C. § 101.

An audiovisual work is, among other requirements, "a series of related images." Id. Therefore, as this court pointed out in Atari I, 888 F.2d at 883, the interrelationship of the successive BREAKOUT screens is crucial. We can accept the Register's assertion that the individual graphic elements of each screen are not copyrightable. Even so, BREAKOUT would be copyrightable if the requisite level of creativity is met by either the individual screens or the relationship of each screen to the others and/or the accompanying sound effects. See Stillman v. Leo Burnett Co., 720 F.Supp. 1353, 1361 (N.D.Ill.1989) ("synergy of ... nonprotectible elements in [television] commercial creates a whole that is greater than the sum of its parts"); cf. Roth Greeting Cards v. United Card Co., 429 F.2d 1106, 1109 (9th Cir.1970) (greeting cards held copyrightable though text standing alone was not; "all elements of each card, including

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text, arrangement of text, art work, and association between art work and text, [must] be considered as a whole"). An audiovisual work is analogous to the compilation of facts discussed in Feist in this critical respect: both involve a choice and ordering of elements that, in themselves, may not qualify for copyright protection; the author's selection and arrangement, however, may "entail [the] minimal degree of creativity" needed to bring the work within the protection of the copyright laws. See Feist, --- U.S. at ----, 111 S.Ct. at 1289.

Feist concerned a white-page telephone directory. The publisher of the directory had taken the names, telephone numbers, and addresses of all persons using its telephone service and arranged the material alphabetically by subscriber's name. This manner of selecting and presenting facts was held not to involve "the modicum of creativity" necessary for copyright protection because the...

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