Page:Data East USA v. Epyx.pdf/4

 was an adaptation of its arcade game. The record contains substantial direct evidence that the works embodied in the arcade game and the home version are essentially similar. A finding of substantial similarity with the audio-visual unit present in the arcade game would, for the purposes of this case, support a finding of substantial similarity with the audio-visual representation of the home game.

Second, Epyx raises the question of whether there was sufficient evidence presented at trial to establish the contents of plaintiff’s “work” in the arcade game. As evidence of the arcade game’s audio-visual work, plaintiff submitted still photographs. Plaintiff did not produce in court the arcade game itself or a video reproduction of the arcade game. Defendant contends there was nothing to prohibit plaintiff from putting the entire audio-visual work before the court and that the court should not have been deprived of having the entire work to view.

This case is distinguishable from Seiler v. Lucas FilmLucasfilm [sic], Ltd., 808 F.2d 1316 (9th Cir.1986), ''cert. denied'', – U.S. —, 108 S.Ct. 92, 98 L.Ed.2d 538 (1987), a case used by Epyx to support its argument that the court erred in not viewing the original version of the arcade game. In Seiler, the plaintiff tried to prove the contents of his copyrighted work with the use of “reconstructions” after alleging that no originals were in existence. The court ruled: "The contents of Seiler’s work are at issue. There can be no proof of ‘substantial similarity’ and thus of copyright infringement unless Seiler’s works are juxtaposed with Lucas’ and their contents compared. Since the contents are material and must be proved, Seiler must either produce the original or show that it is unavailable through no fault of his own."

Id. at 1319. To reach this result, the court applied the best evidence rule [Fed.R.Evid. 1004] and found Seiler had lost or destroyed the originals in bad faith. Thus, no secondary evidence was allowed. Id. The original in the instant case was not lost or destroyed. Photographs of the original rather than a video tape were used to represent the audio-visual work. No fraud was involved.

The issue here, then, is whether sufficient evidence to support the district court’s findings as to the contents of the arcade game’s audio-visual work was present. Along with the photographs, testimony as to the content of the original was also presented. We find the still photographs which depict all images and all moves that occur when the game sequences through the various skill levels, along with testimony, to constitute sufficient evidence of the contents of the arcade game’s audio-visual work to make a fair comparison with Epyx’s game. The district court, therefore, did not commit clear error by determining that the pictures correctly reflect the contents of the original.


 * B. Substantial Similarity

“To show that two works are substantially similar, plaintiff must demonstrate that the works are substantially similar in both ideas and expression.” Frybarger v. International Business Machines Corp., 812 F.2d 525, 529 (9th Cir.1987). Although plaintiff must first show that the ideas are substantially similar, the ideas themselves are not protected by copyright and therefore, cannot be infringed. It is an axiom of copyright law that copyright protects only an author’s expression of an idea, not the idea itself. Mazer v. Stein, 347 U.S. 201, 217–18, 74 S.Ct. 460, 470–71, 98 L.Ed. 630 (1954). There is a