No. CV 04-9253RGKPLAX.
C.D. Cal.

March 9, 2005.

The case is in the early stages, and the present ruling is on a motion to strike and motion to dismiss various claims. Marvel contends that NCSoft marketed, distributed and hosted a computer game that allows players to play online and create characters that are virtually identical in name, appearance, and characteristics to characters owned by Marvel. Marvels allegations include (1) direct, (2) contributory, and (3) vicarious copyright infringement under 17 U.S.C. § § 101, et seq., (4) direct, (5) contributory, and (6) vicarious registered trademark infringement under 15 U.S.C. § 1114, (7) direct, (8) contributory, and (9) vicarious common-law trademark infringement under 15 U.S.C. § 1125, (10) intentional interference with actual and prospective economic advantage, and (11) declaratory relief.

The motion to strike was granted-in-part, because the allegedly infringing works depicted in the exhibits and referred to in the pleadings were created by Plaintiffs themselves.

The motion to dismiss was granted as to Plaintiffs' 4th, 5th, 6th, 8th, 9th, and 11th causes of action (the trademark-related issues, as well as the DJ claim).

Even though the trademark claims were dismissed, this will be a case to watch on the copyright side of the aisle, given that the scope of protection in copyrightable characters with respect to video games will inevitably be an issue. The specific Marvel characters involved inclue Captain America, Wolverine, Incredible Hulk, Magneto, The Thing, Phoenix, and Iron Man.

We'll keep you posted as this case progresses.

Ross Dannenberg
(202) 824-3000

Steve Chang

We've received a few emails asking why we don't allow open commenting on posts. The short answer is that, at the end of the day, we're attorneys, and there are all sorts of ethical and professional rules we are required to follow under whichever state bars we are admitted. Thus, we don't allow commenting so that we don't violate any state's ethical rules regarding providing legal advice. However, if you have a comment or question, or a suggestion for content you would like to see, please feel free to contact us as above, or direct media inquiries to Colleen Strasser at or (312) 463-5465.

ATARI, INC., Plaintiff,


JS & A GROUP, INC., Defendant.

597 F.Supp. 5 (N.D. Ill. 1983)

This appears to be the first case to analyze and consider 17 U.S.C. sec. 117, which provides that owners of copies of computer software can make copies of the software for "archival" purposes.

Atari manufactures and sells a home computer video game system, the "2600", and game cartridges such as "CENTIPEDE" and "PAC-MAN" for use in the 2600. In order to play the games at home, the consumer connects the Atari computer to a television set and plugs his controls, or "joysticks", into the computer. A game cartridge, which is usually purchased separately, is then inserted into the computer. The computer program in the cartridge causes the audiovisual aspects of the game to emanate from the television. Atari has copyrighted its video games as audiovisual works. In addition, it is seeking to register a copyright of the computer program for the CENTIPEDE game.

JS&A is a retailer of electronic products. It began to market its PROM BLASTER, a device for the duplication of those video games which are compatible with the Atari 2600 home computer. The PROM BLASTER has two slots, one for a 2600-compatible cartridge and one for a blank cartridge sold by JS&A for $10. In the words of JS&A's advertisements, "[y]ou simply plug in your Atari or Activision cartridge in one slot and a blank cartridge in another, press a button and three minutes later you've created an exact duplicate." JS&A markets the PROM BLASTER primarily as a means of making "back-up" copies of 2600-compatible games.

The court finds that JS&A's PROM BLASTER does not make a backup copy to protect against "mechanical or electrical failure," as is required by section 117, but instead protects against accidental physical dangers due to the nature of the unerasable and nonreprogrammable ROM inside each cartridge. This danger is no different than accidentally shredding a handwritten literary work, and is thus not protected under section 117. JS&A also argued that since they offered a series of 9 games that they permitted to be copied and sold without restriction, the device had substnatial noninfringing use (the court didn't buy it, given the massive number of other games on the market for the Atari 2600 game console). There being no other substantial noninfringing use, the court grants Atari a preliminary injunction enjoining JS&A from selling the PRO BLASTER. Note that the court in Vault v. Quaid (case summary to follow later) declined to follow the reasoning in this case.
The below press release was released yesterday by Gatlin Education Services, which is now offering classes to teach individuals how to hone their skills for use in the video game industry. Citing growth of the billion-dollar video game industry, the press release implies that experienced video game developers will soon be in short supply. While this may be true, it also demonstrates the need for companies to protect their intellectual property in their video games to prevent other companies from simply copying "the good stuff" instead of developing their own material from scratch. Again, while copyright is automatic and provides rudimentary protection, copyright protects very little beyond a pirated copy of your game. Patents, which are much more comprehensive and provide much broader protection, should be sought in all possible cases.

---Press Release Begins Here---
Online Video Game Development, Design Courses Now Available
Expanding industry offers potential job seekers with above average, entry-level salaries.
Fort Worth, Texas (PRWEB via PR Web Direct) April 21, 2005 -- The Game Institute and Gatlin Education Services announced today their partnership in providing online video game development courses to institutions of higher learning across the country.

These video game development courses are designed to give those interested in the rapidly expanding video game industry the skills necessary to seek employment in that, and a number of related professions, including general computing (corporate applications, databases, web applications), entertainment media development (3D computer animation for film and video), engineering applications (computer-aided manufacturing, robotics, simulations), and emerging technologies (artificial intelligence, biotechnology).

“The videogame industry is a multi-billion dollar global business that is growing rapidly,” Joe Meenaghan, president of the Game Institute, said. “Giving students the opportunity to take rigorous coursework through the Game Institute will open doors for them into this emerging industry.”

Prior to its partnership with the Game Institute, Gatlin Education offered the 3ds Max certification program, a course geared towards the design, development, and animation of 3D video game characters.

CEO Stephen Gatlin believes the combination of his current course offerings and the new programs provides interested students with a well-rounded source for video game training.

“We seek to be at the forefront of technology in education,” Gatlin said. “Working in such a rapidly developing industry requires up to date courses, which we are proud to provide.”

According to the Interactive Digital Software Association (IDSA), 45 percent of the American population (145 million people) plays video games, which places those who can develop creative, state of the art concepts at a fast and reliable pace in high demand.

A survey to be published in the April issue of Game Developer magazine states that the average annual salary for entry level videogame programmers is $54,300, much higher than that of most entry level occupations.

Since seventy two percent of users claim they play because games are challenging and stimulating, staying on top of consumer demand is important when training new developers.

“The leap in required knowledge from competent general-purpose coder to games coder has grown significantly,” Alex Tchernychov, independent game developer said in a review of the institute’s programs. “The Game Institute provides a serious advantage with a focused curriculum and an attention to detail.”
Game Institute courses are developed by experts in the fields of computer science and interactive entertainment, many of which have developed successful commercial game titles, authored best-selling industry textbooks, or taught at the graduate or undergraduate level.

Courses are constantly being added to ensure that the latest techniques and product releases are represented. Several academic partners offer college credit for institute courses.

“Game programming is hard work, but if you can program games, you can program anything,” Meenaghan said. “Our courses teach the hard stuff in a fun and engaging way. Our students appreciate the value of challenging coursework. They come away confident that their training is state-of-the-art and industry relevant.”

Gatlin Education Services is the largest provider of asynchronous web-based, instructor-supported training to colleges and universities. GES open-enrollment programs are designed to provide the skills necessary to acquire professional caliber positions for many in-demand occupations.

For more information on Gatlin Education Services, visit Direct media inquiries to Sandy Bell at 972-934-2850 or e-mail protected from spam bots.

Sandy Bell
Gatlin Education Services
Fax: 972.934.2870

Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607 (7th Cir. 1982)

In this early case regarding copyright protection of video games, the court addresses the issue of determining the scope of copyright protection in an audiovisual work such as a video game. The question here: Did North American Phillips' game K.C.MUNCHKIN infringe Atari's copyright in the game PAC-MAN? The court, noting that a game is not protectible by copyright "as such," stated that video games are protectible "at least to a limited extent [insofar as] the particular form in which it is expressed provides something new or additional over the idea." The court went on to conclude that Atari had a likelihood of success on the merits of copyright infringement, and granted a preliminary injunction preventing North American Phillips from infringing Atari's copyright by producing the K.C.MUNCHKIN game.

The court noted many differences and similarities between PAC-MAN and K.C. Munchkin, which are reproduced in their entireties below. However, what is interesting in this case is that K.C.MUNCHKIN is a clear improvement over PAC-MAN, providing additional strategic aspects that make game play much more dynamic and difficult to master. The court does not ignore these differences, but instead reminds us that "it is enough that substantial parts were lifted; no plagiarist can excuse the wrong by showing how much of his work he did not pirate" (citing Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2nd Cir.)). The court went on to state that "[t]he sine qua non of the ordinary observer test ... is the overall similarities rather than the minute differences between the two works. ... When analyzing two works to determine whether they are substantially similar, courts should be careful not to lose sight of the forest for the trees."

Indicating that video games "appeal to an audience that is fairly undiscriminating insofar as their concern about more subtle differences in artistic expression," this case is useful in that it indicates that infringement can occur when the similarity between two works relates to matter which constitutes a substantial portion of copyright holder's work, i.e., matter which is of value to the copyright holder, regardless of the amount of the alleged infringing work that is similar (hmmm, sounds similar to a fair use factor). Once that determination was made, the court had no trouble concluding that Atari had a good chance of success on the merits in their copyright infringement claim. The fact that North American Phillips advertised K.C.MUNHKIN as a PAC-MAN-type game probably didn't hurt either.

The court's summary of PAC-MAN:

(Play Pac Man Now: Click Here.)
The copyrighted version of PAC-MAN is an electronic arcade maze-chase game. Very basically, the game "board," which appears on a television-like screen, consists of a fixed maze, a central character (expressed as a "gobbler"), four pursuit characters (expressed as "ghost monsters"), several hundred evenly spaced pink dots which line the pathways of the maze, four enlarged pink dots ("power capsules") approximately located in each of the maze's four corners, and various colored fruit symbols which appear near the middle of the maze during the play of the game.

Using a "joy stick," the player guides the gobbler through the maze, consuming pink dots along the way. The monsters, which roam independently within the maze, chase the gobbler. Each play ends when a monster catches the gobbler, and after three plays, the game is over. If the gobbler consumes a power capsule, the roles reverse temporarily: the gobbler turns into the hunter, and the monsters become vulnerable. The object of the game is to score as many points as possible by gobbling dots, power capsules, fruit symbols, and monsters.

The PAC-MAN maze has a slightly vertical rectangular shape, and its geometric configuration is drawn in bright blue double lines. Centrally located on the left and right sides of the maze is a tunnel opening. To evade capture by a pursuing monster, the player can cause the central character to exit through one opening and re-enter through the other on the opposite side. In video game parlance this concept is called a "wraparound." In the middle is a rectangular box ("corral") which has a small opening on the upper side. A scoring table, located across the top of the maze, displays in white the first player's score on the left, the high score to date in the middle, and the second player's score on the right. If a player successfully consumes all of the dots, the entire maze flashes alternately blue and white in victory, and a new maze, replenished with dots, appears on the screen. When the game ends a bright red "game over" sign appears below the corral.

At the start of the game, the gobbler character is located centrally near the bottom of the maze. That figure is expressed as a simple yellow dot, somewhat larger than the power capsules, with a V-shaped aperture which opens and closes in mechanical fashion like a mouth as it travels the maze. Distinctive "gobbling" noises accompany this action. If fate (or a slight miscalculation) causes the gobbler to fall prey to one of the monsters, the action freezes, and the gobbler is deflated, folding back on itself, making a sympathetic whining sound, and disappearing with a star-burst.

The four monster characters are identical except that one is red, one blue, one turquoise, and one orange. They are about equal in size to the gobbler, but are shaped like bell jars. The bottom of each figure is contoured to stimulate three short appendages which move as the monster travels about the maze. Their most distinctive feature is their highly animated eyes, which appear as large white circles with blue irises and which "look" in the direction the monster is moving. At the start of each play, the monsters are located side-by-side in the corral, bouncing back and forth until each leaves through the opening. Unlike the gobbler, they do not consume the dots, but move in a prearranged pattern about the maze at a speed approximately equal to that of the gobbler. When the gobbler consumes a power capsule and the roles reverse, the monsters panic: a siren-like alarm sounds, they turn blue, their eyes contract into small pink dots, a wrinkled "mouth" appears, and they immediately reverse direction (moving at a reduced speed). When this period of vulnerability is about to end, the monsters warn the player by flashing alternately blue and white before returning to their original colors. But if a monster is caught during this time, its body disappears, and its original eyes reappear and race back to the corral. Once in the corral, the monster quickly regenerates and reenters the maze to resume its pursuit of the gobbler.

Throughout the play of PAC-MAN, a variety of distinctive musical sounds comprise the audio component of the game. Those sounds coincide with the various character movements and events occurring during the game and add to the excitement of the play.

The court's summary of K.C.MUNCHKIN:

North American's K. C. Munchkin is also a maze-chase game that employs a player-controlled central character (also expressed as a "gobbler"), pursuit characters (also expressed as "ghost monsters"), dots, and power capsules. The basic play of K. C. Munchkin parallels that of PAC-MAN: the player directs the gobbler through the maze consuming dots and avoiding capture by the monsters; by gobbling a power capsule, the player can reverse the roles; and the ultimate goal is to accumulate the most points by gobbling dots and monsters.

K. C. Munchkin's maze also is rectangular, has two tunnel exits and a centrally located corral, and flashes different colors after the gobbler consumes all of the dots. But the maze, drawn in single, subdued purple lines, is more simple in overall appearance. Because it appears on a home television screen, the maze looks broader than it is tall. Unlike that in PAC-MAN, the maze has one dead-end passageway, which adds an element of risk and strategy. [FN1] The corral is square rather than rectangular *612 and rotates ninety degrees every two or three seconds, but serves the same purpose as the corral in PAC-MAN. The scoring table is located below the maze and, as in PAC-MAN, has places on the left and right for scores for two players.[FN2] But instead of simply registering the high score in the middle, the K. C. Munchkin game displays in flashing pink and orange a row of question marks where the high scorer can register his or her name.

FN1. The K. C. Munchkin home video game has several modes with an almost indefinite variety of mazes. One mode, for example, employs a constantly changing configuration, in another, the player can build his or her own maze, and in yet another, the maze disappears when the gobbler moves.

FN2. Before any player registers points, the PAC-MAN scoring table displays in white "1 UP" and "2 UP" where the scores will appear. The K. C. Munchkin game simply displays "0000" in orange for the first player and in white for the second.

The gobbler in K. C. Munchkin initially faces the viewer and appears as a round blue-green figure with horns and eyes. The gobbler normally has an impish smile, but when a monster attacks it, its smile appropriately turns to a frown. As it moves about the maze, the gobbler shows a somewhat diamond-shaped profile with a V-shaped mouth which rapidly opens and closes in a manner similar to PAC-MAN's gobbler. A distinctive "gobbling" noise also accompanies this movement. When the gobbler stops, it turns around to face the viewer with another grin. If captured by a monster, the gobbler also folds back and disappears in a star-burst. At the start of each play, this character is located immediately above the corral. If successful in consuming the last dot, the munchkin turns to the viewer and chuckles.[FN3]

FN3. The district court stated that "the central character is made to have a personality which the central character in 'PAC-MAN' does not have."

K. C. Munchkin's three ghost monsters appear similar in shape and movement to their PAC-MAN counterparts.[FN4] They have round bodies (approximately equal in size to the gobbler) with two short horns or antennae, eyes, and three appendages on the bottom. The eyes are not as detailed as those of the PAC-MAN monsters, but they are uniquely similar in that they also "look" in the direction in which the monster is moving. Although slightly longer, the "legs" also move in a centipede-like manner as the monster roams about the maze. The similarity becomes even more pronounced when the monsters move vertically because their antennae disappear and their bodies assume the more bell jar-like shape of the PAC-MAN monsters. Moreover, the monsters are initially stationed inside the corral (albeit in a piggyback rather than a side-by-side arrangement) and exit into the maze as soon as play commences.

FN4. The district court, however, characterized the K. C. Munchkin monsters as much "spookier."

K. C. Munchkin's expression of the role reversal also parallels that in PAC-MAN. When the gobbler consumes one of the power capsules, the vulnerable monsters turn purple and reverse direction, moving at a slightly slower speed. If caught by the gobbler, a monster "vanishes": its body disappears and only white "eyes" and "feet" remain to indicate its presence. Instead of returning directly to the corral to regenerate, the ghost-like figure continues to wander about the maze, but does not affect the play.[FN5] Only if the rotating corral happens to open up toward the monster as it travels one of the adjacent passageways will the monster re-enter the corral to be regenerated. This delay in regeneration allows the gobbler more time to clear the maze of dots. When the period of vulnerability is about to end, each monster flashes its original color as a warning.

FN5. During this time, the white eyes disappear and reappear in alternating sequence with the reappearance and disappearance of the monster's body silhouetted in white.

There are only twelve dots in K. C. Munchkin as opposed to over two hundred dots in PAC-MAN. Eight of those dots are white; the other four are power capsules, distinguished by their constantly changing color and the manner in which they blink. In K. C. Munchkin, the dots are randomly spaced, whereas in PAC-MAN, the dots are uniformly spaced. Furthermore, in K. C. *613 Munchkin, the dots are rectangular and are always moving. As the gobbler munches more dots, the speed of the remaining dots progressively increases, and the last dot moves at the same speed as the gobbler. In the words of the district court, "the last dot ... cannot be caught by overtaking it; it must be munched by strategy." At least initially, one power capsule is located in each of the maze's four corners, as in PAC-MAN.

Finally, K. C. Munchkin has a set of sounds accompanying it which are distinctive to the whole line of Odyssey home video games. Many of these sounds are dissimilar to the sounds which are played in the arcade form of PAC-MAN.
The following Reuters release provides more evidence that the video game industry continues to increase its market share. A company's intellectual property in its video games can provide critical legal protection to establish a foothold in such a large industry.


U.S. Video Game Sales Up 32 Pct in March: Analysts
Fri Apr 15, 2005 11:52 AM ET

LOS ANGELES (Reuters) - Video game sales rose 32 percent in the United States in March, analysts said on Friday, noting Sony Corp's top-selling "Gran Turismo 4" racing game as well as an improved supply of console hardware.

Citing figures from market researchers NPD Group, analysts also said Sony Corp.'s new PlayStation Portable handheld gaming unit sold 620,000 units of hardware in the month and 1.1 million pieces of software. The PSP was released on March 24.

By comparison, Nintendo Co. Ltd.'s DS dual-screen handheld has sold 428,000 units this year, analysts said, quoting NPD. The DS, which costs $100 less than the PSP, launched last year.

The supply of Sony's PlayStation 2 console continued to improve, analysts said, with 495,000 sold in the month, compared with 227,000 units of Microsoft Corp.'s Xbox and 94,000 units of Nintendo's GameCube.

Microsoft has acknowledged the Xbox is in short supply, which some retailers fear may continue through the year as the company prepares to launch its next-generation console, most likely around the holidays.

"Gran Turismo 4" led game sales in the month, with more than 532,000 units sold, followed by the value-priced "MVP Baseball 2005" from Electronic Arts Inc. at just under 338,000 units.

Most analysts expect U.S. software sales to grow about 5 percent in 2005, driven by growing sales for handheld devices like the PSP and DS.

ATARI, INC. v. AMUSEMENT WORLD, INC., 547 F.Supp. 222 (D. Md. Nov. 27, 1981).

In one of the earliest video game cases, Atari, the holder of copyright in the arcade game "Asteroids," sued Amusement World for copyright infringement based on Amusement World's video game "Meteors." This early case reaffirms that while video games are protectable as audiovisual works (incidentally, the court also indicates the video game is protectable as a motion picture), copyright protection does not extend to the underlying idea behind the video game, but rather protects only the specific expression of that idea.

At the outset, the court noted a variety of similaries between the 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.

The court also noted several 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.

To prove copyright infringement, a plaintiff must prove the existence of a valid copyright, and copying of protectable expression by the defendant. Amusement World first challenged the validity of Atari's copyright on the grounds that "Asteroids" was not the proper subject matter of copyright, as well as based on Atari's alleged noncompliance with applicable statuory formalities.

Atari registered a copyright in "Asteroids" as an audiovisual work, not in the computer program as a literary work, by submitting a video tape of one game sequence out of an infinite number of possible game sequences. Amusement World argued that the computer program would have been the proper subject matter of copyright, not the audiovisual portion. In rejecting Amusement World's arguments on this point, the court stated "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..." The court went on to state that the audiovisual work is sufficiently fixed in the ROM chips under which the video game operates.

Amusement World next argued that Atari was attempting to monopolize the use of the idea of a video game in which the player fights his way through asteroids and spaceships, which is an uncopyrightable idea. The court again sided with Atari, stating "when [Atari] copyrighted his particular expression of the game, he did not prevent others from using the idea of a game with asteroids. He prevented only the copying of the arbitrary design features that makes plaintiff's expression of this idea unique. These design features consist of the symbols that appear on the display screen, the ways in which those symbols move around the screen, and the sounds emanating from the game cabinet."

Regarding compliance with statutory formalities, the court indicated that submission of a videotape of a single game out of an infinite number of possible games, is sufficient "alternative identifying material" as required by the Copyright Office.

Atari attempted to demonstrate copying by showing access to its work "Asteroids" by Amusement World, plus substantial similarity of the two works (i.e., "Asteroids" and "Meteors"). The court provided the usual analysis of protectable material, and indicated that the court "must be careful not to interpret plaintiff's copyright as granting plaintiff a monopoly over those forms of expression that are inextricably associated with the idea of such a video game. Therefore, it is not enough to observe that there are a great number of similarities in expression between the two games. It is necessary to determine whether the similar forms of expression are forms of expressiongrhat simply cannot be avoided in any version of the basic idea of a video game involving space rocks." Based on the lists of similarities and differences, the court concluded that Meteors was not substantially similar to Asteroids, stating that most of the similarities "were inevitable, given the requirements of the idea of a game involving a spaceship combatting space rocks and given the technical demands of the medium of a video game.... All these requirements of a video game in which the player combats space rocks and spaceships combine to dictate certain forms of expression that must appear in any version of such a game. In fact, these requirements account for most of the similarities between 'Meteors' and 'Asteroids.' Similarities so accounted for do not constitute copyright infringement, because they are part of plaintiff's idea and are not protected by plaintiff's copyright." Without substantial similarity of protectable expression, there can be no copyright infringement. While Amusement World based their game on Atari's Asteroids, Amusement World only copied the idea, and not the protectable aspects of the game.
As you may (or may not) be aware, there are well over 30 major cases that deal with intellectual property protection of video games, and that's just patents and copyrights. We have dissected these cases and, over the next few months, will be publishing an analysis of each case. New case analysis posts will be up every Tuesday, and the title will begin with "Case:". You can also subscribe to our Atom/RSS site feed for automatic updates.
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In trying to import some order and contemplated thoughtfulness into this blog, we have decided to use standard formatting in the titles of posts to ease later search. Here is what we have so far, and there is no guarantee that this won't change:

  • Case: These posts provide information and/or analysis about decided cases. The title may include a parenthetical to indicate whether the case is directed to patents (P), Copyrights (C), Trademarks (TM), Trade Secrets (TS), or other (O) forms of video game protection. The title will generally also include the case name and short description of what event occurred prompting the posting. Examples of events include: Trial Court Opinion or Order [TrialCt], Appellate Court Opinion or Order [AppCt], Supreme Court Opinion [SCt].
  • Update: These posts provide information and/or analysis about ongoing cases. The title may include a parenthetical to indicate whether the case is directed to patents (P), Copyrights (C), Trademarks (TM), Trade Secrets (TS), or other (O) forms of video game protection. The title will generally also include the case name and short description of what non-final event occurred prompting the posting. Examples of non-final events include: Temporary Restraining Order (TRO), Preliminary Injunction (PI)
  • TechBit: These posts provide interesting information about video game technology, although not necessarily of a legal nature.
More categories to follow as needed. Email us with any comments or suggestions to
Not exactly of a legal nature, but certainly of interest to our audience:

There will be a half-hour global premiere, with a performance from The Killers, airing exclusively on MTV channels around the world on May 12 and 13.

Full press release can be found here.
Well not exactly a video game... yet, but it might apply sometime in the future. Hasbro sued RADgames in the Southern District of New York back in February for RADgames' add-on to Monopoly. The court initially granted Hasbro a Temporary Restraining Order pending a hearing for a Preliminary Injunction. RADgames developed a modified version of Monopoly which uses a second game board in conjunction with the original. Figure 8 of U.S. Patent 5,810,359 is reproduced below:

On April 7, 2005, United States District Court Judge Hon. Gerard E. Lynch lifted the TRO and deined Hasbro's request for a Preliminary Injunction, stating that "RADgames has added a new, original creation to the market which is designed for use with the plaintiff's product but is distinctive in its own right."

While RADgames patents are primarily directed to board games, the claims (at least on their face) are not all limited to physical creations, and could also apply to versions of the game implemented as a video game or computer game.

The case is Hasbro, Inc. v. Radgames, Inc., case no. 1:05-cv-02324-GEL, U.S. District Court for the Southern District of New York.
Well I received some quick validation for this blog today. Many may be unsure whether to start a blog and/or question their use. For the curious, there is an enlightening article, "Do You Blog?" by Sarah Kellogg, in the April, 2005, issue of Washington Lawyer, the official journal of the District of Columbia bar. It's a very interesting read and gives me hope and motivation to continue development of the Patent Arcade.
...And by cast of characters I don't mean Shadow, Speedy, Bashful and Pokey (or their nicknames of Inky, Pinky, Blinky, and Clyde). We're all typically Xbox types, but Steve allegedly also has a PlayStation. The primary crew is as follows:

Ross Dannenberg, Esq. (Publishing Editor; Editor, Copyrights & Patents). Gamertag: Aviator. Click here for more information about me.
Steve Chang, Esq. (Editor, Patent Litigation). Gamertag: SChang1038. Click here for more information about Steve.
Rob Katz, Esq. (Editor, Design Patents). Gamertag: FlyersCaps. Click here for more information about Rob.

We have invited others to help us out as well, but we maintain a strict requirement that all editors be gamers as well as IP attorneys. Not only that, you specifically have to beat Steve or me at Halo 2 to become an Editor. Rob got lucky... once. We'll update the cast of characters as applicable.

If there are any topics you'd like to see discussed please send us an email and we'll see what we can do.

-Ross Dannenberg (Aviator), Publishing Editor
Hi there,
The time is 9:47 P.M. on April 5, 2005. It seems overdue, as the idea has been in the works for quite some time, but this marks the (unofficial) launch of the Patent Arcade. My name is Ross Dannenberg, and I am the Editor for the Patent Arcade. The Patent Arcade is a venue providing information regarding Intellectual Property Protection of Video Games, We'll cover console games, computer games, arcade games, game consoles, and everything that has to do with VIDEO GAMES. Issues that we expect to cover include copyright protection, trademark protection, trade secrets, and patent protection of video games. I'll introduce the recurring cast of characters you'll meet in the Patent Arcade in a (hopefully) soon to follow post. For now, welcome to the Arcade, and please feel free to email us with any topics you'd like to see discussed.
-Ross Dannenberg, Editor-in-Chief
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