Page:Atari v. North American Philips Consumer Electronics.pdf/4

 Daniel W. Vittum, Jr., Kirkland & Ellis, Chicago, Ill., for plaintiffs-appellants.

Theodore W. Anderson, Neuman, Williams, Anderson & Olson, Chicago, Ill., for defendants-appellees.

Before WOOD and ESCHBACH, Circuit Judges, and GORDON, District Judge.

HARLINGTON WOOD Jr., Circuit Judge.

Plaintiffs-appellants Midway Manufacturing Co. (“Midway”) and Atari, Inc. (“Atari”) instituted this action against defendants-appellees North American Philips Consumer Electronics Corp. (“North American”) and Park Magnavox Home Entertainment Center (“Park”) for copyright infringement of and unfair competition against their audiovisual game “PAC–MAN.” The district court denied plaintiffs’ motion for a preliminary injunction, and this appeal followed, 28 U.S.C. § 1292(a)(1).

I. FACTS

Atari and Midway own the exclusive United States rights in PAC–MAN under the registered copyright for the “PAC–MAN audiovisual work.” Midway sells the popular coin-operated arcade version, and Atari recently began to market the home video version. As part of its Odyssey line of home video games, North American developed a game called “K. C. Munchkin” which Park sells at the retail level. Plaintiffs filed this suit alleging that K. C. Munchkin infringes their copyright in PAC–MAN in violation of 17 U.S.C. §§ 106, 501 (Supp. I 1977), and that North American’s conduct in marketing K. C. Munchkin constitutes unfair competition in violation of the Illinois Uniform Deceptive Trade Practices Act, Ill.Rev.Stat. Ch. 121½, §§ 311–17 (1980), and the common law. The district court denied plaintiffs’ motion for a preliminary injunction, ruling that plaintiffs failed to show likelihood of success on the merits of either claim.

Because this appeal requires us to make an ocular comparison of the two works, we describe both games in some detail.

A. The Copyrighted Work

The copyrighted version of PAC–MAN is an electronic arcade maze-chase game. Very basically, the game “board,” which appears on a television-like screen, consists of a fixed maze, a central character (expressed as a “gobbler”), four pursuit characters (expressed as “ghost monsters”), several hundred evenly spaced pink dots which line the pathways of the maze, four enlarged pink dots (“power capsules”) approximately located in each of the maze’s four corners, and various colored fruit symbols which appear near the middle of the maze during the play of the game.

Using a “joy stick,” the player guides the gobbler through the maze, consuming pink dots along the way. The monsters, which roam independently within the maze, chase the gobbler. Each play ends when a monster catches the gobbler, and after three plays, the game is over. If the gobbler consumes a power capsule, the roles reverse temporarily: the gobbler turns into the hunter, and the monsters become vulnerable. The object of the game is to score as many points as possible by gobbling dots, power capsules, fruit symbols, and monsters.

The PAC–MAN maze has a slightly vertical rectangular shape, and its geometric configuration is drawn in bright blue double lines. Centrally located on the left and right sides of the maze is a tunnel opening. To evade capture by a pursuing monster, the player can cause the central character to exit through one opening and re-enter through the other on the opposite side. In