Page:Atari v. North American Philips Consumer Electronics.pdf/12

 personality. The game as such, however, does not dictate the use of a “gobbler” and “ghost monsters.” Those characters are wholly fanciful creations, without reference to the real world. See Krofft; Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978) (Cummings, J., sitting by designation), ''cert. denied'', 439 U.S. 1132, 99 S.Ct. 1054, 59 L.Ed.2d 94 (1979).

North American not only adopted the same basic characters but also portrayed them in a manner which made K. C. Munchkin appear substantially similar to PAC–MAN. The K. C. Munchkin gobbler has several blatantly similar features, including the relative size and shape of the “body,” the V-shaped “mouth,” its distinctive gobbling action (with appropriate sounds), and especially the way in which it disappears upon being captured. An examination of the K. C. Munchkin ghost monsters reveals even more significant visual similarities. In size, shape, and manner of movement, they are virtually identical to their PAC–MAN counterparts. K. C. Munchkin’s monsters, for example, exhibit the same peculiar “eye” and “leg” movement. Both games, moreover, express the role reversal and “regeneration” process with such great similarity that an ordinary observer could conclude only that North American copied plaintiffs’ PAC–MAN.

Defendants point to a laundry list of specific differences—particularly the concept of moving dots, the variations in mazes, and certain changes in facial features and colors of the characters—which they contend, and the district court apparently agreed, shows lack of substantial similarity. Although numerous differences may influence the impressions of the ordinary observer, “slight differences between a protected work and an accused work will not preclude a finding of infringement” where the works are substantially similar in other respects. Durham, 630 F.2d at 913; see Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir.), ''cert. denied'', 298 U.S. 669, 56 S.Ct. 835, 80 L.Ed. 1392 (1936). Exact reproduction or near identity is not necessary to establish infringement. “[A]n infringement … includes also the various modes in which the matter of any work may be adopted, imitated, transferred, or reproduced, with more or less colorable alterations to disguise the piracy.” Universal Pictures Co., Inc. v. Harold Lloyd Corp., 162 F.2d 354, 360 (9th Cir. 1947). In comparing the two works, the district court focused on certain differences in detail and seemingly ignored (or at least failed to articulate) the more obvious similarities. The sine qua non of the ordinary observer test, however, is the overall similarities rather than the minute differences between the two works. Peter Pan Fabrics, 274 F.2d at 489; cf. Warner Brothers, 654 F.2d at 209–11 (“Judge Motley’s opinion indicates that she properly focused upon ‘the similarities not the differences’ ”). The nature of the alterations on which North American relies only tends to emphasize the extent to which it deliberately copied from the plaintiffs’ work. Concord Fabrics, Inc. v. Marcus Brothers Textile Corp., 409 F.2d 1315, 1316 (2d Cir. 1969). 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. Hoehling, 618 F.2d at 979–80.