Page:Atari v. North American Philips Consumer Electronics.pdf/9

 Sons, Inc., 472 F.Supp. 481, 482 (W.D.Pa. 1979), aff’d without op., 631 F.2d 725 (3d Cir. 1980); 3 Nimmer § 13.03[E], at 13–51 to –52. “It is an axiom of copyright law that the protection granted to a copyrightable work extends only to the particular expression of an idea and never to the idea itself.” Reyher v. Children’s Television Workshop, 533 F.2d 87, 90 (2d Cir.), ''cert. denied'', 429 U.S. 980, 97 S.Ct. 492, 50 L.Ed.2d 588 (1976). “Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea—not the idea itself.” Mazer v. Stein, 347 U.S. 201, 217, 74 S.Ct. 460, 470, 98 L.Ed. 630 (1954); see Baker v. Selden, 101 U.S. 99, 102–03, 25 L.Ed. 841 (1879). The Copyright Act of 1976 codifies this idea-expression dichotomy. 17 U.S.C. § 102(b); see H.Rep.No. 94–1476, 94th Cong., 2d Sess. 57, reprinted in [1976] U.S. Code Cong. & Ad.News 5659, 5670. Thus, “if the only similarity between plaintiff’s and defendant’s works is that of the abstract idea, there is an absence of substantial similarity and hence no infringement results.” 3 Nimmer § 13.03[A][1], at 13–19 (original emphasis); see Warner Brothers, 654 F.2d at 204, 208; Durham, 630 F.2d at 913.

It follows that copyright protection does not extend to games as such. Chamberlin v. Uris Sales Corp., 150 F.2d 512 (2d Cir. 1945); see also Anti-Monopoly, Inc. v. General Mills Fun Group, 611 F.2d 296, 300 n.1 (9th Cir. 1979). As Professor Nimmer notes, however, “some limited copyright protection is nevertheless available in connection with games…. [A] relatively minimal artistic expression, if original, would render copyrightable … the pattern or design of game boards and playing cards as pictorial or graphic works.” 1 Nimmer § 2.18[H][3], at 2–212. Recognizing this principle, the Second Circuit has held copyrightable as an audiovisual work, see 17 U.S.C. § 102(a)(6), the “repetitive sequence of a substantial portion of the sights and sounds” of a video game called “SCRAMBLE.” Stern Electronics, Inc. v. Kaufman, 669 F.2d 852, 856 (2d Cir. 1982); see also Atari, Inc. v. Amusement World, Inc., Civ. No. Y–81–803, slip op. at 9 (D.Md. Nov. 27, 1981); ''Midway Mfg. Co. v. Dirkschneider'', Civ. No. 81–0–243, slip op. at 13–14 (D. Neb. July 15, 1981) (PAC–MAN). This appeal requires us to address the related question of the scope of copyright protection to be afforded audiovisual games such as PAC–MAN. To do so, we must first attempt to distill the protectible forms of expression in PAC–MAN from the game itself. See, e.g., Durham, 630 F.2d at 914–15.

There is no litmus paper test by which to apply the idea-expression distinction; the determination is necessarily subjective. As Judge Learned Hand said, “Obviously, no principle can be stated as to when an imitator has gone beyond copying the ‘idea,’ and has borrowed its ‘expression.’ Decisions must therefore inevitably be ad hoc.” Peter Pan Fabrics, 274 F.2d at 489. Courts and commentators nevertheless have developed a few helpful approaches. In Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930), ''cert. denied'', 282 U.S. 902, 51 S.Ct. 216, 75 L.Ed. 795 (1931), Judge Hand articulated what is now known as the “abstractions test”: Upon any work … a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out…. [T]here is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his “ideas,” to which, apart from their