The game is Williams' arcade game Defender, which many of us remember with fondness:
Artic sold circuit boards, manufactured by others, which contain electronic circuits including a microprocessor and memory devices (ROMs). These memory devices incorporate a computer program which is virtually identical to Williams' program for the Defender game. The result is a circuit board "kit" which is sold by Artic to others and which, when connected to a cathode ray tube, produces audiovisual effects and a game almost identical to the Williams' Defender game, including both the attract mode and the play mode. The play mode and actual play of Artic's game, entitled "DEFENSE COMMAND," is virtually identical to that of the Williams game, i.e., the characters displayed on the cathode ray tube including the player's spaceship are identical in shape, size, color, manner of movement and interaction with other symbols. Also, the attract mode of the Artic game is substantially identical to that of Williams' game, with minor exceptions such as the absence of the Williams name and the substitution of the terms "DEFENSE" and/or "DEFENSE COMMAND" for the term "DEFENDER" in its display.
The principal dispute in this case was whether the audiovisual aspects of a video game are sufficiently "fixed" to obtain copyright protection under the 1976 Copyright Act. The court held that the video game Defender was sufficiently fixed in ROM regardless of the fact that game play may differ slightly each game, and also regardless of the fact that a human player causes the video game to change slightly with each"performance."
Specifically, Artic argued that there is a lack of "fixation" because the video game generates or creates "new" images each time the attract mode or play mode is displayed, notwithstanding the fact that the new images are identical or substantially identical to the earlier ones. The court gave little weight to this argument, stating that the fixation requirement is met whenever the work is "sufficiently permanent or stable to permit it to be * * * reproduced, or otherwise communicated" for more than a transitory period, and that the original audiovisual features of the DEFENDER game repeat themselves over and over. The court also noted the unnsuccessful results of Artic's same argument in other cases.
Artic also argued that the player's participation withdraws the game's audiovisual work from copyright eligibility because there is no set or fixed performance, and the player becomes a co-author of what appears on the screen. The court rejected this argument as well, noting that although there is player interaction with the machine during the play mode which causes the audiovisual presentation to change in some respects from one game to the next in response to the player's varying participation, there is always a repetitive sequence of a substantial portion of the sights and sounds of the game, and many aspects of the display remain constant from game to game regardless of how the player operates the controls. In addition, there is no player participation in the attract mode which is displayed repetitively without change.
The court went on to reject Artic's additional arguments in its defense, namely that Williams was trying to copyright a utilitarian object, and that copyright infringement only occurs when the source code is copied, not when the object code is copied. The court did, however, reverse the finding of willful infringement and remanded for further proceedings on that issue.