Atari, Inc. v. Amusement World, Inc.

• Citation: 547 F. Supp. 222
• Decision Date: 27 November 1981
• Docket Number: Civ. No. Y-81-803.
• Parties: ATARI, INC. v. AMUSEMENT WORLD, INC., et al.
• Court: U.S. District Court — District of Maryland

547 F. Supp. 222

ATARI, INC. v. AMUSEMENT WORLD, INC., et al.

Civ. No. Y-81-803.

United States District Court, D. Maryland.

November 27, 1981.

John J. Sweeney, Jr., Baltimore, Md., and Elliot B. Aronson, San Francisco, Cal., for plaintiff.

Benjamin Lipsitz, Baltimore, Md., and Arthur J. Levine, Washington, D. C., for defendant.

MEMORANDUM OPINION AND ORDER

JOSEPH H. YOUNG, District Judge.

Atari, Inc., holder of a copyright on the electronic video game "Asteroids," seeks to enjoin defendants Amusement World, Inc., and its president Stephen Holniker, from manufacturing or distributing any product in violation of plaintiff's copyright.

In October, 1979, plaintiff Atari, introduced "Asteroids," a video game in which the player commands a spaceship through a barrage of space rocks and enemy spaceships. Plaintiff has sold 70,000 copyrighted "Asteroids" games for a total of $125,000,000, making "Asteroids" the largest-selling video game ever (not counting sales in Japan).

Defendant Amusement World, Inc., is a small closely-held corporation employing a total of five people. Its business has consisted largely of repair work on coin-operated games, but recently it has attempted to enter the lucrative video business by producing and distributing a video game called "Meteors."

On March 13, 1981, plaintiff first became aware that defendants were selling "Meteors," which plaintiff alleges is substantially similar to "Asteroids." On March 18, 1981, plaintiff sent defendants a cease and desist letter, which defendants have ignored. Plaintiff then filed suit and now seeks injunctive relief.

THE GAMES

Each of the two video games is contained in a cabinet with a display screen and a control panel for the player. The course of the game is controlled by a computer program, which has been chemically implanted in printed circuit boards inside the cabinet. When no one is playing the game, the machine is in the so-called "attract mode," in which there appears on the display screen an explanation of the game and/or a short simulated game sequence, which is intended to attract customers. Placing a coin in the machine causes it to go into "play mode," in which the computer program generates scenes of dangerous situations, to which the player responds by pressing various buttons on the control panel.

The principle of the two games is basically the same. The player commands a spaceship, represented by a small symbol that appears in the center of the screen. During the course of the game, symbols representing various sized rocks drift across the screen, and, at certain intervals, symbols representing enemy spaceships enter and move around the screen and attempt to shoot the player's spaceship. Four control buttons allow the player to rotate his ship clockwise or counterclockwise, to move the ship forward, and to fire a weapon. A variety of appropriate sounds accompany the firing of weapons and the destruction of rocks and spaceships.

Many of the design features of the two games are similar or identical. In both games:

(1) There are three sizes of rocks.

(2) The rocks appear in waves, each wave being composed initially of larger rocks.

(3) Larger rocks move more slowly than smaller ones.

(4) When hit, a large rock splits into two medium rocks, a medium rock splits into two small ones, and a small rock disappears.

(5) When a rock hits the player's spaceship, the ship is destroyed.

(6) There are two sizes of enemy spaceships.

(7) The larger enemy spaceship is an easier target than the smaller one.

(8) The player's ship and enemy ships shoot projectiles.

(9) When a spaceship's projectiles hit a rock or another ship, the latter is destroyed immediately.

(10) The destruction of any rock or spaceship is accompanied by a symbol of an explosion.

(11) When an enemy spaceship is on the screen, the player hears a beeping tone.

(12) There is a two-tone beeping noise in the background throughout the game, and the tempo of this noise increases as the game progresses.

(13) The player gets several spaceships for his quarter. The number of ships remaining is displayed with the player's score.

(14) The score is displayed in the upper left corner for one player and the upper right and left corners for two players.

(15) The control panels are painted in red, white, and blue.

(16) Four control buttons from left to right, rotate the player's spaceship counter-clockwise, rotate it clockwise, move it forward, and fire the weapon.

(17) When a player presses the "thrust" button, his spaceship moves forward and when he releases the button the ship begins to slow down gradually (although it stops more quickly in "Meteors").

(18) The player gets an extra spaceship if he scores 10,000 points.

(19) Points are awarded on an increasing scale for shooting (a) large rock, (b) medium rock, (c) small rock, (d) large alien craft, (e) small alien craft.

(20) When all rocks are destroyed a new wave of large rocks appears.

(21) Each new wave of rocks has progressively more large rocks than the previous waves to increase the challenge of the game.

(22) A general overhead view of the battle field is presented.

There are also a number of differences between the games:

(1) "Meteors" is in color, while "Asteroids" is in black and white.

(2) The symbols for rocks and spaceships in "Meteors" are shaded to appear three-dimensional, unlike the flat, schematic figures in "Asteroids."

(3) The rocks in "Meteors" appear to tumble as they move across the screen.

(4) "Meteors" has a background that looks like distant stars.

(5) At the beginning of "Meteors," the player's spaceship is shown blasting off the earth, whereas "Asteroids" begins with the player's spaceship in outer space.

(6) The player's spaceship in "Meteors" rotates faster.

(7) The player's spaceship in "Meteors" fires faster and can fire continuously, unlike the player's spaceship in "Asteroids," which can fire only bursts of projectiles.

(8) The pace of the "Meteors" game is faster at all stages.

(9) In "Meteors," after the player's spaceship is destroyed, when the new spaceship appears on the screen, the game resumes at the same pace as immediately before the last ship was destroyed; in "Asteroids" the game resumes at a slower pace.

The necessary elements for copyright infringement have been stated succinctly in 3 Nimmer, The Law of Copyright, § 13.01:

Reduced to most fundamental terms, there are only two elements necessary to the plaintiff's case in an infringement action: ownership of the copyright by the plaintiff, and copying by the defendant.

OWNERSHIP OF THE COPYRIGHT

As stated by Nimmer, supra, § 13.01(A):

Plaintiff's ownership in turn breaks down into the following constituent parts: (1) Originality in the author, (2) copyrightability of the subject matter, (3) citizenship status of the author such as to permit a claim of copyright, (4) compliance with applicable statutory formalities, and (5) (if the plaintiff is not the author) a transfer of rights or other relationship between the author and the plaintiff so as to constitute the plaintiff the valid copyright claimant.

The copyright registration certificate provides prima facie evidence of the above elements of the claim of ownership:

In any judicial proceedings, the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate....

17 U.S.C. § 410(c). Plaintiff entered into evidence its certificate of copyright registration, and defendants challenge only the second and fourth elements of copyright ownership. Therefore, the Court finds for the plaintiff on the remaining elements and addresses only the two challenged elements.

Defendants challenge the copyrightability of plaintiff's video game. However, the "Asteroids" game clearly fits the Act's definitions of copyrightable material. The Act includes among the types of works of authorship that may be copyrighted "motion pictures and other audiovisual works." 17 U.S.C. § 102(a)(6). The Act, 17 U.S.C. § 101, defines "audiovisual works" as:

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.

"Motion pictures" are defined as:

audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with any accompanying sounds, if any.

Id.

Defendant contends that plaintiff has not properly copyrighted the "Asteroids" game, arguing that the original work of authorship is the computer program, as embodied in the printed circuit board.¹ Plaintiff filed a video-tape of what appeared on the display screen during one of an infinite number of possible game sequences with the copyright office, rather than the printed circuit board. Defendant argues that this registration affords no protection for the underlying computer program/printed circuit board.

Defendants' analysis is faulty, because it fails to distinguish between the work and the medium in which it is fixed. In order to receive a copyright, a work must be both copyrightable (that is, it must fit one of the definitions of a copyrightable work) and fixed in a tangible medium of expression. 17 U.S.C. § 102(a). Plaintiff's "work," the thing that plaintiff has created and desires to protect, is the visual presentation of the "Asteroids" game. That work is copyrightable as an audiovisual work and as a motion picture. 17 U.S.C. § 101; Stern Electronics, Inc. v. Kaufman, et al., 523 F.Supp. 635 (E.D.N.Y., 1981) (rejecting defendant's claims that the video game's presentation was not an original work and that only the computer program could be considered an original work);...