Page:Data East USA v. Epyx.pdf/3

 audio-visual display of the video game “World Karate Championship” infringed its copyright for “Karate Champ” as embodied in the arcade and home versions of the video game. Data East also charged Epyx with trademark and trade dress infringement.

The district court found that except for the graphic quality of Epyx’s expressions, part of the scoreboard, the referee’s physical appearance, and minor particulars in the “bonus phases,” Data East’s and Epyx’s games are qualitatively identical. The district court then held that Epyx’s game infringes the copyright Data East has in “Karate Champ.” The district court, however, found no trademark or trade dress infringement. Based upon its decision, the district court permanently restrained and enjoined Epyx from copying, preparing derivative works, distributing, performing, or displaying the copyrighted work in the “Karate Champ” video game, the “World Karate Championship” game, or the “International Karate” game. A recall of all Commodore computer games of “World Karate Championship” and “International Karate” was ordered. This appeal followed.

II. DISCUSSION

A district court’s determination of findings of fact is subject to the clearly erroneous standard of review. McCulloch v. Price, 823 F.2d 316, 318 (9th Cir.1987); Anderson v. City of Bessemer City, 470 U.S. 564, 572, 105 S.Ct. 1504, 1510, 84 L.Ed.2d 518 (1985). The issues of access and substantial similarity are findings of fact reviewable for clear error. McCulloch, 823 F.2d at 318. Under the clearly erroneouslyerroneous [sic] standard of review, an appellate court must accept the lower court’s findings of fact unless upon review the appellate court is left with the definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); Dollar Rent aA [sic] Car of Washington, Inc. v. Travelers Indemnity Co., 774 F.2d 1371, 1374 (9th Cir.1985).

To establish copyright infringement, Data East must prove both ownership of a valid copyright and “copying” by Epyx of the copyrighted work. Sid & Marty Krofft Television ProductsProductions [sic], Inc. v. McDonald’s Corp., 562 F.2d 1157, 1162 (9th Cir.1977). It is undisputed that Data East is the registered copyright owner of the audio-visual work for each version of “Karate Champ.” Thus we need only determine whether Epyx copied “Karate Champ.” This sounds simple and straightforward. It is not.

As in most infringement cases of this kind, no direct evidence was developed that System III Software or anybody else copied any version of Data East’s product. There seldom is any direct evidence of copying in these matters. Therefore, copying may be established instead by circumstantial evidence of (1) the defendant’s access to the copyrighted work prior to defendant’s creation of its work, and (2) the substantial similarity of both the general ideas and expression between the copyrighted work and defendant’s work. Id.; Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir.1987), ''cert. denied'', – U.S. —, 108 S.Ct. 346, 98 L.Ed.2d 372 (1987). In essence, the question of copying becomes a matter of reasonable inferences. Because we find no substantial similarity, we decline to address the issue of access.


 * A. Sufficiency of Evidence

Preliminarily, we consider Epyx’s contentions regarding the sufficiency of Data East’s evidence. First, Epyx argues Data East’s reliance on the contents of the audio-visual works of the home game is irrelevant for proof of substantial similarity because there was no finding of access to this version. We agree with this contention. We note, however, that the district court determined Data East’s home game