979 F.2d 242 (D.C. Cir. 1992)

I. Background

In 1989, Atari brought an action against Ralph Oman, the Register of Copyrights at the time, that challenged his decision not to grant Atari a copyright on its video game entitled BREAKOUT. The Register, in a letter, denied the copyright registration saying that the “wall, ball, and paddle were ‘simple geometric shapes and coloring’ which ‘per se are not copyrightable.’” Viewing BREAKOUT as a whole, the Register found “no original authorship in either the selection or arrangement of the images or their components.”

At the trial level, the United States District Court for the District of Colombia granted the Register’s motion for summary judgment and denied Atari’s motion for summary judgment. Atari appealed the district court’s decision, and the Court of Appeals reversed and remanded the case (Atari Games Corp. v. Oman, 888 F.2d 878 (D.C. Cir. 1989)(hereinafter “Atari I”)). On remand, the Register again refused registration and once again Atari filed suit in the District Court. The District Court again granted summary judgment in favor of the Register, and once more an appeal was taken to the Court of Appeals.

II. Analysis

To be copyrightable, a work must be “fixed, original (i.e. not copied), and a “’work of authorship’” 17 U.S.C. §102. The dispute before the D.C. Circuit was whether BREAKOUT qualified as a “work of authorship.”

BREAKOUT was presented to the court as an audiovisual work, defined as “consist(ing) of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds . . . .” 17 U.S.C. §101.

In Atari I, the court asked the Register whether a different level of creativity was required for video games than for other works of art. The Register responded that “[t]he Copyright Office [was] applying the same creativity standard to the videogame ‘BREAKOUT’ as it would to any type of work . . . .” The court, using previous case law, determined that the Register had failed to considered BREAKOUT’s artistic merits on the same level as it would other forms of art.

In an earlier Supreme Court case entitled Feist Pub’lns, Inc. v. Rural Tel. Serv. Co., Inc., the Court concluded that the requirement to fulfill the creativity standard is “extremely low; even a slight amount [of creativity] will suffice.” 499 U.S. 340 (1991). When using this standard, courts are required to look at the product “as a whole” and should not focus on individual elements.

In Atari I, The Court stressed that while individual graphical elements of each of BREAKOUT’s screens are not copyrightable, the images, when taken together as a whole, constitute a copyrightable work of art. The D.C. Circuit felt that the Copyright Office had failed to uphold its duty and “focus[ed] on the individual screens, rather than the flow of the game as a whole.”

The Register also suggested that BREAKOUT was too trivial for protection. Counsel for the Register, during oral arguments, argued that BREAKOUT’s resort to nonrepresentational images showed a lack of creativity, stating: “The idea . . . could have been expressed in expressive ways. They could have added graphics to it. They could have had a brick wall that looked like a brick wall. They could have added ivy that was expressive.”

Circuit Judge Ruth Bader Ginsburg, who would go on to become a Justice of the Supreme Court, rejected this assertion, stating that “the ball’s path in BREAKOUT varies depending on which of four sections of the paddle it hits. Its trajectory does not follow from the laws of physics.” Using the Feist standard, Ginsburg concluded that the choice of motion used in BREAKOUT could not be characterized as “mechanical,” “garden-variety,” “typical” or “obvious,” or as projecting “age-old practices, firmly rooted in tradition and so commonplace that the combination of elements has come to be expected as a matter of course,” or as “practically inevitable.” Thus, because of the complicated and variable trajectory the ball in BREAKOUT was designed to take depending on which part of the paddle it hit, the D.C. Circuit identified BREAKOUT as creative and remanded the case back to Register for renewed consideration consistent with the opinion.

III. Conclusion

While the D.C. Circuit’s opinion should not be taken as holding that all video games are per se copyrightable, it did reaffirm the holding in Feist that “the vast majority of works make the copyright grade quite easily.” In addition, the Copyright Office must use the Feist standard for any work of art whether it is video games or something else. All forms of art should receive the same creativity standard in the eyes of the Register. A final point of interest is that this case suggests that individual elements of any video game might not be copyrightable in and of themselves, though when taken together, the combination of elements may be copyrightable.