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Midway Manufacturing Co. v. Artic International, Inc.

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Midway Manufacturing Co. v. Artic International, Inc.
CourtUnited States Court of Appeals for the Seventh Circuit
Full case name Midway Manufacturing Co. v. Artic International, Inc.
ArguedNovember 29, 1982
DecidedApril 11, 1983
Citation704 F.2d 1009
Case history
Prior history547 F. Supp. 999 (N.D. Ill. 1982)
Court membership
Judges sittingWalter J. Cummings Jr., Richard Posner, Luther Merritt Swygert
Case opinions
MajorityCummings, joined by a unanimous court

Midway Manufacturing Co. v. Artic International, Inc., 704 F.2d 1009 (7th Cir. 1983), is a court case in which the United States District Court for the Northern District of Illinois held that aspects of a video arcade game were copyrightable even though the images that appeared on the screen were transient.[1] The case was affirmed by the United States Court of Appeals for the Seventh Circuit.[2]

Facts

In the late 1970s, arcade game industry was growing in Japan, leading Namco to enter the market.[3][4] In 1979, Namco published the hit video game Galaxian, one of the first arcade games to incorporate RGB color graphics, score bonuses, and a tilemap hardware model.[5][6] That year, Galaxian became the second highest-earning arcade game in Japan.[7] It was re-released in North America by Midway Manufacturing, where it became one of its best-selling titles and formed a relationship between Namco and Midway.[8]

Namco built on this success with the release of Pac-Man in 1980, which was once again licensed to Midway Manufacturing for a North American re-release.[9] The year ended with Pac-Man as highest earning game in Japan, with Galaxian close behind.[10] The game generated $150 million in sales between October 1980 and December 1981,[11] and overtook Atari's Asteroids as the best-selling arcade game in the America in 1981.[12] Pac-Man was also America's highest-grossing arcade game of 1981,[13][14] eventually surpassing the film Star Wars: A New Hope (1977) with more than $1 billion in revenue.[15][16] The game became a mass market success, leading to game sequels, merchandising, and a cartoon.[9]

Artic International began selling circuit boards that could be used inside other game machines, including one that would accelerate the speed of play for Galaxian, and another that was identical to Pac-Man.[17][18] Midway filed suit against Artic for copyright infringement in both games.[18] Artic responded by filing a motion for summary judgment against Midway, on the basis that Midway did not hold a valid copyright,[18] and that Artic had neither copied nor induced others to copy Midway's work.[19] Although Midway registered their copyrights submitting video recordings of their games being played,[20] Artic argued that the games themselves are transitory and not fixed.[17]

Ruling

District Judge Bernard Decker granted an injunction against Artic,[1] denying their motion for summary judgement, and preventing them manufacturing or distributing circuit boards that infringed both Pac-Man and Galaxian.[18] Artic appealed the injunction to the United States Court of Appeals for the Seventh Circuit, but Chief Judge Walter J. Cummings Jr. affirmed the lower court decision.[2]

Artic argued that the games cannot be proteted as audiovisual works as they are not fixed.[17] The court acknowledged that the framers of the Copyright Act did not anticipate the issues raised by electronic games,[20] but rejected Artic's arguments.[19] According to the court, Midway's video games meet the Copyright Act's definition of an audiovisual work as a "series of related images", because there is sufficient repetition of images between playthroughs.[18] The court also accepted that the inventor of the game was the creator of the audiovisual work, and not the player, thus allowing Midway to register the copyright.[18]

Galaxian created further issues, as Artic argued that their hardware speeding the rate of play did not infringe Midway's copyright.[18] However, the court held that Artic violated Midway's exclusive right to create derivative works of Galaxian, as Artic's speed-up kit incorporated copyrighted material from the game, and supplanted demand for Midway's game.[21]

Having established that Midway owned a valid copyright in both games,[22] the court found that Artic infringed Pac-Man by producing a near identical copy,[20] and infringed Galaxian by creating an unauthorized derivative work.[22] The court denied Artic's motion for summary judgement against Midway, and instead enjoined Artic from infringing Pac-Man and Galaxian.[18]

Impact

Midway v. Artic established that a near identical clone of a game will usually be considered copyright infringement.[20] It also established that video games are eligible for copyright protection as audiovisual works,[22] and that a copyright holder can register a video game as an audiovisual work by submitting a video tape of gameplay.[20] (Later, the U.S. Copyright Office stopped allowing videogame manufacturers to register the display as an "audiovisual work" and the computer program as a "literary work." Now the registrant must choose which of the two aspects of the game are most prominent and only file as one type of work.)[23]

The decision was also notable for going beyond an ordinary observer test for similarity, relying on expert testimony to parse similarities in source code between the games, including an identical error in the two circuit boards.[24]

This also case illustrates a challenge for understanding the concept of "fixation" in copyright law. Midway v. Artic is one of the first cases to establish that computer programs stored in hardware memory count as a fixed creative work, for the purposes of copyright.[17][21] Even though the combinations of images change between playthroughs, most of the images are fixed in memory of the printed circuit boards.[21] Along with early cases Stern Electronics, Inc. v. Kaufman and Atari, Inc. v. North American Philips Consumer Electronics Corp., courts accepted that the image sequences were the creations of the author, and not an algorithm or a player. In Play/Write, Scott Nelson argues that this has implications for procedurally generated games such as Diablo, Dwarf Fortress, and Minecraft.[17]

The Galaxian ruling around derivative works has been criticized by commentators.[25] Midway v. Artic established that creating a circuit board designed to speed up another video game would violate that copyright owner's exclusive right to prepare derivative works.[21] However, this decision was distinguished in 1992 with the ruling in Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.,[26] where the court decided that there was no copyright infringement in attaching Game Genie hardware to a Nintendo cartridge to alter a game's mechanics.[25][27] The court distinigushed the two game-altering devices, with Artic's Galaxian speed-up hardware incorporating a portion of the original Galaxian, while the Game Genie did not incorporate any copyright content.[22] Commentators have also highlighted the court's opinion that the Galaxian speed-up kit would supplant demand for Galaxian, while a later court found that the Game Genie would not have the same commercial impact.[22][26] In the University of Pennsylvania Law Review, Thomas Hemnes criticized the Midway v. Artic decision that the speed-up kit would harm sales of Galaxian, since the speed-up kit could not function without first owning a working version of the original game.[19]

References

  1. ^ a b Midway Manufacturing Co. v. Artic International, Inc., 547 F. Supp. 999 (N.D. Ill. 1982).
  2. ^ a b Midway Manufacturing Co. v. Artic International, Inc., 704 F.2d 1009 (7th Cir. 1983).
  3. ^ Kurokawa, Fumio (March 17, 2018). "ビデオゲームの語り部たち 第4部：石村繁一氏が語るナムコの歴史と創業者・中村雅哉氏の魅力" [Video game storytellers Part 4: The history of Namco and the charm of its founder, Masaya Nakamura, talked about by Shigekazu Ishimura]. 4Gamer (in Japanese). Archived from the original on August 1, 2019. Retrieved August 2, 2019.
  4. ^ Koyama, Nobuyuki (June 9, 2005). 遊びのチカラ ナムコの高付加価値戦略 [The Power of Play: Namco's High Value-Added Strategy] (in Japanese). Tokyo: Nikkei BP Planning. ISBN 978-4-8613-0101-8.
  5. ^ "Arcade Games". JoyStik. Vol. 1, no. 1. Publications International. September 1982. p. 10. Retrieved July 14, 2019.
  6. ^ Mark J. P. Wolf (June 15, 2012). Before the Crash: Early Video Game History. Detroit: Wayne State University Press. p. 173. ISBN 978-0-8143-3722-6.
  7. ^ "ベストスリー 本紙調査" [Best 3 Paper Survey] (PDF). Game Machine (in Japanese). No. 136. Amusement Press, Inc. February 1980. p. 2.
  8. ^ Kent, Steven L. (2002). The Ultimate History of Video Games: The Story Behind the Craze that Touched our Lives and Changed the World. New York: Random House International. pp. 137–138. ISBN 978-0-7615-3643-7.
  9. ^ a b Graham, Lawrence D. (1999). Legal Battles that Shaped the Computer Industry. Greenwood Publishing Group. ISBN 978-1-56720-178-9.
  10. ^ "ベストスリー 本紙調査 (調査対象1980年) 〜 アーケードゲーム機" [Best Three Book Survey (Survey Target 1980) ~ Arcade Game Machines] (PDF). Game Machine (in Japanese). No. 159. Amusement Press, Inc. 15 February 1981. p. 2.
  11. ^ Hemnes, Thomas M. S. (1982). "The Adaptation of Copyright Law to Video Games". University of Pennsylvania Law Review. 131 (1): 171–233. doi:10.2307/3311832. JSTOR 3311832.
  12. ^ Mark J. P. Wolf (2001). The medium of the video game. University of Texas Press. p. 44. ISBN 0-292-79150-X. Archived from the original on April 18, 2016. Retrieved April 9, 2011.
  13. ^ "1981 Jukebox/Games Route Survey". Cash Box. Cash Box Pub. Co. 31 October 1981. p. C-18.
  14. ^ "Authoritative Industry Sources Acclaim: Pac-Man Top Video Game of the Year". Cash Box. Cash Box Pub. Co. 26 December 1981. p. 91.
  15. ^ Haddon, L. (1988). "Electronic and Computer Games: The History of an Interactive Medium". Screen. 29 (2): 52–73 [53]. doi:10.1093/screen/29.2.52. Revenue from the game Pac-Man alone was estimated to exceed that from the cinema box-office success Star Wars.
  16. ^ Kevin "Fragmaster" Bowen (2001). "Game of the Week: Pac-Man". GameSpy. Archived from the original on October 1, 2011. Retrieved April 9, 2011.
  17. ^ a b c d e Eyman, Douglas; Davis, Andréa D. (2016-04-06). Play/Write: Digital Rhetoric, Writing Games. Parlor Press LLC. ISBN 978-1-60235-734-1.
  18. ^ a b c d e f g h Caretto, Barbara B. (January 1985). "Copyright Infringement of Video Games: When the Chips Are Down". Loyola of Los Angeles Entertainment Law Review. 5 (1): 132–147.
  19. ^ a b c Hemnes, Thomas M. S. (1982). "The Adaptation of Copyright Law to Video Games". University of Pennsylvania Law Review. 131 (1): 171–233. doi:10.2307/3311832. JSTOR 3311832.
  20. ^ a b c d e McKnight, Steven G. (October 1983). "Substantial Similarity Between Video Games: An Old Copyright Problem in a New Medium". Vanderbilt Law ReviewVanderbilt. 6 (5).
  21. ^ a b c d Jensen, Mary Brandt (May 1984). "Softright: A Legislative Solution to the Problem of Users' and Producers' Rights in Computer Software". Louisiana Law Review. 44 (5): 1413–1483.
  22. ^ a b c d e Schlinsog, Melinda J. (2013). "Endermen, Creepers, and Copyright". Tulane Journal of Technology and Intellectual Property. 16: 185–206.
  23. ^ Craig Joyce et al., Copyright Law 77 (7th ed. 2006). See also Copyright Office Notice of Registration Decision, Docket No. 87-4, 53 Fed. Reg. 21817, June 10, 1988.
  24. ^ Sundholm, Carl (January 1987). "Computer Copyright Infringement: Beyond the Limits of the Iterative Test" (PDF). Santa Clara High Technology Law Journal. 3 (2): 378.
  25. ^ a b Samuelson, Pamela (October 2013). "The quest for a sound conception of copyright's derivative work right" (PDF). Georgetown Law Journal. 101 (6): 1–77.
  26. ^ a b Rothberg, Joseph. "Cheating In Gaming: Will Copyright Laws Level Up?". Forbes. Retrieved 2022-07-17.
  27. ^ Woo, Jisuk (2014-06-03). Copyright Law and Computer Programs: The Role of Communication in Legal Structure. Routledge. p. 107. ISBN 978-1-135-69482-1.
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