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Williams Elecs., Inc. v. Artic Int'l, Inc., 1981 WL 1287 (D.N.J. June 24, 1981), aff'd and remanded, 685 F.2d 870 (3d Cir. 1982) (full-text).

Factual Background[]

Plaintiff, Williams Electronics, Inc. (Williams), manufactures and sells coin-operated electronic video games. In October 1979, Williams began to design a new video game called DEFENDER, which incorporated various original and unique audiovisual features. The DEFENDER game was introduced to the industry at a trade show in 1980 and has since achieved great success in the marketplace. In the DEFENDER game, there are symbols of a spaceship and aliens who do battle with symbols of human figures. Williams obtained three copyright registrations in relation to its DEFENDER game: one covering the computer program, the second covering the audiovisual effects displayed during the game’s "attract mode," and the third covering the audiovisual effects displayed during the game’s "play mode." Visible copyright notices were placed on the game cabinet, appeared on the screen during the attract mode and the beginning of the play mode, and were placed on labels which were attached to the outer case of each memory device.

Defendant, Artic International, Inc. (Artic), sells electronic components for video games in competition with Williams. 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 was virtually identical to Williams' program for the DEFFENDER game. The result was a circuit board "kit" which was sold by Artic to others and which, when connected to a cathode ray tube, produced 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," was virtually identical to that of the Williams’ game, i.e., the characters displayed on the cathode ray tube including the player's spaceship were 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.

Trial Court Proceedings[]

The trial court found that Artic had infringed Williams’ computer program copyright for the DEFENDER game by selling kits which contain a computer program which was a copy of Williams’ computer program, and that Artic had infringed both of Williams’ audiovisual copyrights for the DEFENDER game by selling copies of those audiovisual works. The trial court issued a permanent injunction, which restrained and enjoined Artic from infringing Williams’ copyrights on audiovisual works and the computer program relating to the DEFENDER game.

The trial court severed Williams’ demand for monetary damages, and further severed Williams’ claims of copyright infringement from its claims of trademark infringement and unfair competition.

Appellate Court Proceedings[]

The principal issue on appeal was whether the audiovisual aspects of a video game were sufficiently "fixed" to receive copyright protection under the 1976 Copyright Act. The appellate court held that the video game DEFENDER was sufficiently fixed in ROM regardless of the fact that game play may differ slightly each time the game is played, since 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 appellate 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 appellate court also noted the unsuccessful 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 was 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 repeatedly without change.

The court also rejected Artic's additional arguments, 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 appellate court did, however, reverse the finding of willful copyright infringement and remanded for further proceedings on that issue.