Posted By: Jensen Nevitt
Video games are inexorably linked to computers, and as technology advances in the field of computers, so to does the technology of gaming. Originally, gaming was done on arcade machines. Gaming today is done mostly through the use of a gaming console or personal computer. Until Atari, Inc. v. North American Philips Consumer Electronic Corp. was decided by the 7th Circuit Court of Appeals in 1982, it was unclear whether the Copyright Act would apply in the realm of video games. Unlike computer software, which is protected as a literary work under the Copyright Act, video games are protected as audiovisual works. Including video games in the protection under the act has had a profound influence on the gaming industry.
The facts of Atari grant us some interesting insights into the battle between early console developers for at-home gaming supremacy. Those and show exactly what was at stake in that battle. Midway Games released the arcade version of PAC-MAN in 1980. In one year, video game players inserted one billion quarters into PAC-MAN machines in arcades across America. Because of the success of the arcade version of PAC-MAN, video game console developers rushed to obtain the licensing rights to produce the game for at-home play. Atari won that race, and the right to develop PAC-MAN for its at-home console. Atari spent a large sum of money to develop the console version, and because it did so, had a huge incentive to try to ward off competition from would-be competitors.
Another company that had tried to obtain the license for PAC-MAN was Magnavox, who had its own console, the Odyssey². During the rush to obtain the license, Magnavox contracted Ed Averett to develop a console version of PAC-MAN. When Atari won the race for the license, Magnavox was forced to change its plans. Magnavox instructed Averett to make some changes to the game so that it would not infringe on the copyright and license that Atari now owned. He did so, and the result was K.C. Munchkin.
K.C. Munchkin hit the market in 1981 and was the Odyssey²’s best-selling game of all time. It actually hit the market the year before PAC-MAN was ever released on the Atari, and it was not the only imitator. Other companies released games such as Snoggle, Jawbreaker, and Gobbler to try to emulate the experience of the popular maze-chase game. Atari even went after Jawbreaker in court, but was forced to settle after a judge denied the injunction requested by Atari against Jawbreaker. At the time, there was not really any precedent on the issue.
When Atari took Magnavox to court over K.C. Munchkin, the district court sided with Magnavox, denying the injunction that Atari requested. The district court focused on the differences between the two titles, rather than on the similarities, and found that the two were not substantially similar.
When Atari appealed to the circuit court, Magnavox did not pay much attention to the appeal. Magnavox had just won at the trial level, and believed that it had a strong case. Magnavox would live to rue the day it made that decision. For reasons that are discussed below in more detail, Magnavox lost the appeal because K.C. Munchkin was too similar to PAC-MAN in appearance. Magnavox appealed to the Supreme Court, but certiorari was denied, and the injunction granted by the circuit court stood.
Magnavox was forced to take K.C. Munchkin off the market. The same month that Magnavox took its game off the market, Atari released its console version of PAC-MAN to the public. It would go on to become the best-selling video game of all time to that point. In an odd twist of fate, the console version of PAC-MAN looked nothing like the arcade version (even less so than K.C. Munchkin). Interestingly enough, Magnavox would go on to develop a sequel to K.C. Munchkin, called K.C.’s Krazy Chase, in which K.C. chases a caterpillar around a maze. Some people have even surmised that the game was an attempt to mock PAC-MAN, since the head of the caterpillar looks somewhat like the PAC-MAN character.
The Copyright Act protects works that fall into specific categories. Some of those categories are literary works, musical works, and audiovisual works (there are various others). Among other things, a rightful copyright holder has the right to “reproduce the copyrighted work . . . prepare derivative works . . . [and] distribute copies . . . to the public by sale . . . .” In the early computer software copyright cases, courts determined that copyright protection extended to software as literary works. In the video game context, and specifically in this case, the court ruled that video games were also entitled to some protection as audiovisual works. In the lawsuit, Atari sought to enjoin Magnavox from being able to distribute K.C. Munchkin because the game infringed on Atari’s rightful copyright of PAC-MAN.
In determining if Magnavox violated Atari’s copyright, the court undertakes an ocular comparison of the two works. The comparison is very fact-intensive, and the opinion describes the games in great detail, but for the reader’s sake, it is easier to just watch a video of the two games. A video of PAC-MAN can be found here, and one of K.C. Munchkin can be found here.
As anyone can see, the games are very similar, though not identical. Though there are some differences in color, shape, and gameplay, there are also striking similarities between the two games. Both games were maze-chase games. Both had a “gobbler” as well as “ghost monsters” that the gobbler pursued. The gobbler in both games consumed “dots” and “power capsules”. In both games the maze was rectangular with tunnel exits and a corral in the center. As far as gameplay, both games contained a “role reversal” when the gobbler consumed a power capsule.
The main task that the court undertook was to determine if the K.C. Munchkin game was “substantially similar” to PAC-MAN. The court looked to determine if Magnavox copied Atari’s work and whether or not that copying constituted an “improper appropriation”, which was determined from the standard of an ordinary observer. As in other copyright cases, the court noted that copyright protects certain expressions of ideas, but not the ideas themselves.
In this case, the court found that there were some parts of PAC-MAN that were protectable, and some parts that were not. The court held that the form in which the game was expressed (the shapes, colors, sequences, arrangements, and sounds compiled together) was something “new or additional over the idea.” However, the court also held that some expressive matter is “scenes a faire” (and is essentially only protectable from exact copying). Parts of the game that fell in this category were the maze, the score table, the wraparound tunnel exits, and the dots.
In the end, the court found that K.C. Munchkin was substantially similar to PAC-MAN. The district court had focused too much on the slight differences between the games without noting the substantial similarities. The interesting result of the case is that the Copyright Act now protects video games, but only as far as they contain a unique form of expression. Appropriating ideas from copyrighted video games is still allowed.
What was the result of the Atari decision? In the short term, it led to Atari dominating in the arena of at-home video game consoles. It was able to do so piggybacking off the success of the PAC-MAN game. It is probably not a coincidence that I had never heard of the Magnavox Odyssey game console before I looked into this case, but I had heard of Atari.
In the long term, I think that the Atari decision impacted the video game industry in a positive way. I think that it helped contribute to the increased competition in video game consoles. That competition is evident today. All you have to do is watch some of the E3 conference and see how Microsoft and Sony compete with each other. They do this by coming out with as much new and original content as possible to attract buyers to their respective console.
I think that another result is the video game developers have to be less obvious in their copying. What do I mean by this? The court said that appropriating ideas from copyrighted works is allowed, while appropriating unique forms of expression is not. This is not too hard to find in video games. One need not look further than the recent craze, Fortnite. The first time that I saw Fortnite, I thought that it was a cheap knockoff of the game PlayerUnknown’s Battlegrounds, or PUBG. But upon closer examination, and thinking about the games in the context of the Atari decision, I realized there are small differences in the games. Fortnite is a “battle royale” style game, just like PUBG. In both games, players jump from an airship traveling over the map, parachute to the ground, look for weapons and armor, and proceed to duke it out until there is only one player standing. They games are similar, but Fortnite also contains some additional elements. Fortnite contains a building element in its gameplay that isn’t present in PUBG. When a player dies in Fornite, his loot is dispersed on the ground. In PUBG, the loot stays on the player’s body. Also, Fortnite varies in appearance. The graphics are not as realistic in Fortnite as they are in PUBG. I think that Fortnite is a good example of appropriating an uncopyrightable idea, but not the expression.
Another example of appropriating the idea but not the expression is first-person shooters. I could not tell you what the first first-person shooter was, but I know that there have been countless first-person shooters developed since then. I equate first-person shooters to the maze in PAC-MAN. The court even said in the case that Atari could not copyright the maze-chase genre, and that was evidenced afterward when Magnavox went ahead and released a sequel to K.C. Munchkin.
The other result that I see is that games have gotten better because of the case. Even though an idea can be appropriated, a game developer still must come up with new and original content and/or stories to make the form of expression of the developer’s game unique. I think that this has helped contribute to improved storytelling and ever-improving features in games.
Overall, I think that this was a good result that helps to protect the investment of game developers while simultaneously causing other developers to come up with original content.