Page:Atari v. North American Philips Consumer Electronics.pdf/13

 To assess the impact of certain differences, one factor to consider is the nature of the protected material and the setting in which it appears. Universal Athletic Sales, 511 F.2d at 908. Video games, unlike an artist’s painting or even other audiovisual works, appeal to an audience that is fairly undiscriminating insofar as their concern about more subtle differences in artistic expression. The main attraction of a game such as PAC–MAN lies in the stimulation provided by the intensity of the competition. A person who is entranced by the play of the game “would be disposed to overlook” many of the minor differences in detail and “regard their aesthetic appeal as the same.” Cf. Krofft, 562 F.2d at 1166–67 (children would view accused characters as substantially similar to the protected characters despite differences in detail).

The defendants and the district court order stress that K. C. Munchkin plays differently because of the moving dots and the variety of maze configurations from which the player can choose. The focus in a copyright infringement action, however, is on the similarities in protectible expression. Even to the extent that those differences alter the visual impression of K. C. Munchkin, they are insufficient to preclude a finding of infringement. “[I]t is enough that substantial parts were lifted; no plagiarist can excuse the wrong by showing how much of his work he did not pirate.” Sheldon, 81 F.2d at 56. Infringement may be found where the similarity relates to matter which constitutes a substantial portion of plaintiffs’ work—i.e., matter which is of value to plaintiffs. 3 Nimmer § 13.03[A][2], at 13–31 to –32; see also Universal Pictures, 162 F.2d at 361. It is irrelevant that K. C. Munchkin has other game modes which employ various maze configurations. The only mode that concerns this court is the one that uses a display most similar to the one in PAC–MAN. Other cases similarly have separated the “attract” mode from the “play” mode in comparing two audiovisual games. See, e.g., Dirkschneider, slip op. at 7–9; Stern Electronics, Inc. v. Kaufman, 523 F.Supp. 635 (E.D.N.Y.1981) (preliminary injunction), aff’d, 669 F.2d 852, 857 (2d Cir. 1982). Moreover, PAC–MAN’s distinctive characters alone may constitute material of substantial value. Cf. Walt Disney; Krofft (cartoon characters).

While not necessarily conclusive, other extrinsic evidence additionally suggests that plaintiffs are likely to succeed on their copyright claim. In promoting K. C. Munchkin, several retailers and sales clerks described that game by referring to PAC–MAN. Comments that K. C. Munchkin is “Odyssey’s PAC–MAN” or “a PAC–MAN game” especially reflect that at least some lay observers view the games as similar. Cf. Union Carbide, 531 F.2d at 384 (trademark infringement); MCA, Inc. v. Wilson, 425 F.Supp. 443, 450 (S.D.N.Y.1976), aff’d in part, 211 U.S.P.Q. 577 (2d Cir. 1981) (spontaneous reactions of the ordinary observer are relevant). But cf. Ideal Toy Corp. v. Kenner Products, 443 F.Supp. 291, 303 (S.D.N.Y.1977) (disregarding statements that the accused work “looks like” the protected work). Furthermore, North American’s direction to Mr. Averett that he make certain superficial changes in the gobbler figure may be viewed as an attempt to disguise an intentional appropriation of PAC–MAN’s expression.

Based on an ocular comparison of the two works, we conclude that plaintiffs clearly showed likelihood of success. Although not “virtually identical” to