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669 F.2d 852

213 U.S.P.Q. 443, 1982 Copr.L.Dec. P 25,354

STERN ELECTRONICS, INC., Plaintiff-Appellee,
v.
Harold KAUFMAN d/b/a Bay Coin, et al., Defendants,
and
Omni Video Games, Inc., et al., Defendants-Appellants.

No. 1674, Docket 81-7411.

United States Court of Appeals,
Second Circuit.

Argued July 15, 1981.
Decided Jan. 20, 1982.

Robert Wieck, Providence, R.I. (Adler, Pollock & Sheehan, Inc., Providence, R.I., and Schulte, Roth & Zabel, New York City, on the brief), for defendants-appellants.

George H. Gerstman, Chicago, Ill. (Pigott, Gerstman & Ellis, Ltd., Chicago, Ill., Steven B. Pokotilow, Randy Lipsitz, and Blum, Kaplan, Friedman, Silberman & Beran, New York City, on the brief), for plaintiff-appellee.

Before VAN GRAAFEILAND and NEWMAN, Circuit Judges, and DUMBAULD, District Judge.*

NEWMAN, Circuit Judge:

1
This appeal from the grant of a preliminary injunction concerns primarily the availability of copyright protection for the visual images electronically displayed by a coin-operated video game of the sort currently enjoying widespread popularity throughout the country. Omni Video Games, Inc., its distributor, and two of its officers appeal from an order entered May 22, 1981 in the District Court for the Eastern District of New York (Eugene H. Nickerson, Judge), preliminarily enjoining them from infringing the copyright of Stern Electronics, Inc. in the audiovisual work entitled "Scramble" and from making further use of the trademark "SCRAMBLE" in connection with electronic video games. 523 F.Supp. 635. Appellants contend that the visual images and accompanying sounds of the video game fail to satisfy the fixation and originality requirements of the Copyright Act, 17 U.S.C.App. § 102(a) (1976), and that they, rather than appellees, have superior rights to the mark "SCRAMBLE". We reject these contentions and affirm the preliminary injunction.

2
Video games like "Scramble" can roughly be described as computers programmed to create on a television screen cartoons in which some of the action is controlled by the player. In Stern's "Scramble," for example, the video screen displays a spaceship moving horizontally through six different scenes in which obstacles are encountered. With each scene the player faces increasing difficulty in traversing the course and scoring points. The first scene depicts mountainous terrain, missile bases, and fuel depots. The player controls the altitude and speed of the spaceship, decides when to release the ship's supply of bombs, and fires lasers that can destroy attacking missiles and aircraft. He attempts to bomb the missile bases (scoring points for success), bomb the fuel depots (increasing his own diminishing fuel supply with each hit), avoid the missiles being fired from the ground, and avoid crashing his ship into the mountains. And that is only scene one. In subsequent scenes the hazards include missile-firing enemy aircraft and tunnel-like airspaces. The scenes are in color, and the action is accompanied by battlefield sounds.

3
The game is built into a cabinet containing a cathode ray tube, a number of electronic circuit boards, a loudspeaker, and hand controls for the player. The electronic circuitry includes memory storage devices called PROMs, an acronym for "programmable read only memory."1 The PROM stores the instructions and data from a computer program in such a way that when electric current passes through the circuitry, the interaction of the program stored in the PROM with the other components of the game produces the sights and sounds of the audiovisual display that the player sees and hears. The memory devices determine not only the appearance and movement of the images but also the variations in movement in response to the player's operation of the hand controls.

4
Stern manufactures amusement equipment, including video games, for distribution worldwide. In January 1981 at a London trade exhibit Stern became aware of "Scramble," an electronic video game developed in late 1980 by a Japanese corporation, Konami Industry Co., Ltd. The audiovisual display constituting what Stern alleges is the copyrightable work was first published in Japan on January 8, 1981. Stern secured an exclusive sub-license to distribute the "Scramble" game in North and South America from Konami's exclusive licensee, and began selling the game in the United States on March 17, 1981. Even in the fast-paced world of video games, "Scramble" quickly became a big success. Approximately 10,000 units were sold at about $2,000 each in the first two months for an initial sales volume of about $20 million.

5
On April 14, 1981, a Certificate of Copyright Registration for the audiovisual work "Scramble" was issued to Konami by the United States Copyright Office, and shortly thereafter documents were filed with the Copyright Office reflecting the license and sub-license to Stern. To satisfy the statutory requirement for deposit of copies of a work to be copyrighted, 17 U.S.C.App. § 408(b) (1976), Konami submitted video tape recordings of the "Scramble" game, both in its "attract mode" and in its "play mode."2

6
Omni alleges that, concurrently with Stern's sales of the "Scramble" game and even earlier, it was endeavoring to sell a line of video game products so constructed that each unit could be equipped for playing different games by substituting a PROM containing the program for a particular game. Omni contends that it planned to market this line of interchangeable games with the label "Scramble" affixed to the headboard of each unit; the name of the particular game was also to be prominently displayed. On December 1, 1980, Omni's president ordered ten silk screen name plates bearing the name "Scramble." Between that date and March 17, 1981, the date of Stern's first sale of its "Scramble" game, Omni sold five units of video games bearing the name "Scramble" on the headboard. In April 1981 Omni began to sell a video game called "Scramble" that not only bears the same name as the "Scramble" game Stern was then marketing, but also is virtually identical in both sight and sound. It sold this copy of Stern's "Scramble" game, known in the trade as a "knock-off," for several hundred dollars less than Stern's game.

1. Copyright Issues

7
In challenging the preliminary injunction that bars distribution of its "Scramble" game, Omni does not dispute that Konami and its sub-licensee Stern are entitled to secure some copyright protection for their "Scramble" game. Omni contends that Konami was entitled to copyright only the written computer program that determines the sights and sounds of the game's audiovisual display.3 While that approach would have afforded some degree of protection, it would not have prevented a determined competitor from manufacturing a "knock-off" of "Scramble" that replicates precisely the sights and sounds of the game's audiovisual display. This could be done by writing a new computer program that would interact with the hardware components of a video game to produce on the screen the same images seen in "Scramble," accompanied by the same sounds. Such replication is possible because many different computer programs can produce the same "results," whether those results are an analysis of financial records or a sequence of images and sounds. A program is simply "a set of statements (i.e., data) or instructions to be used directly or indirectly in a computer in order to bring about a certain result," Pub.L.No. 96-517, § 10(a), 94 Stat. 3015, 3028 (1980) (amending 17 U.S.C.App. § 101 (1976)). To take an elementary example, the result of displaying a "4" can be achieved by an instruction to add 2 and 2, subtract 3 from 7, or in a variety of other ways. Obviously, writing a new program to replicate the play of "Scramble" requires a sophisticated effort, but it is a manageable task.

8
To secure protection against the risk of a "knock-off" of "Scramble" based upon an original program, Konami eschewed registration of its program as a literary work and chose instead to register the sights and sounds of "Scramble" as an audiovisual work. See 17 U.S.C.App. § 102(a)(6) (1976). The Act defines "audiovisual works" as "works that consist 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, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied." 17 U.S.C.App. § 101 (1976). Omni contends that Konami is not entitled to secure a copyright in the sights and sounds of its "Scramble" game because the audiovisual work is neither "fixed in any tangible medium of expression" nor "original" within the meaning of § 102(a). Both contentions arise from the fact that the sequence of some of the images appearing on the screen during each play of the game will vary depending upon the actions taken by the player. For example, if he fails to avoid enemy fire, his spaceship will be destroyed; if he fails to destroy enough fuel depots, his own fuel supply will run out, and his spaceship will crash; if he succeeds in destroying missile sites and enemy planes, those images will disappear from the screen; and the precise course travelled by his spaceship will depend upon his adjustment of the craft's altitude and velocity.

9
If the content of the audiovisual display were not affected by the participation of the player, there would be no doubt that the display itself, and not merely the written computer program, would be eligible for copyright. The display satisfies the statutory definition of an original "audiovisual work," and the memory devices of the game satisfy the statutory requirement of a "copy" in which the work is "fixed."4 The Act defines "copies" as "material objects ... in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device" and specifies that a work is "fixed" when "its embodiment in a copy ... is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." 17 U.S.C.App. § 101 (1976). The audiovisual work is permanently embodied in a material object, the memory devices, from which it can be perceived with the aid of the other components of the game.

10
We agree with the District Court that the player's participation does not withdraw the audiovisual work from copyright eligibility. No doubt the entire sequence of all the sights and sounds of the game are different each time the game is played, depending upon the route and speed the player selects for his spaceship and the timing and accuracy of his release of his craft's bombs and lasers. Nevertheless, many aspects of the sights and the sequence of their appearance remain constant during each play of the game. These include the appearance (shape, color, and size) of the player's spaceship, the enemy craft, the ground missile bases and fuel depots, and the terrain over which (and beneath which) the player's ship flies, as well as the sequence in which the missile bases, fuel depots, and terrain appears. Also constant are the sounds heard whenever the player successfully destroys an enemy craft or installation or fails to avoid an enemy missile or laser. It is true, as appellants contend, that some of these sights and sounds will not be seen and heard during each play of the game in the event that the player's spaceship is destroyed before the entire course is traversed. But the images remain fixed, capable of being seen and heard each time a player succeeds in keeping his spaceship aloft long enough to permit the appearances of all the images and sounds of a complete play of the game. The repetitive sequence of a substantial portion of the sights and sounds of the game qualifies for copyright protection as an audiovisual work.

11
Appellants' claim that the work lacks originality proceeds along two lines. Repeating their attack on fixation, they assert that each play of the game is an original work because of the player's participation. The videotape of a particular play of the game, they assert, secured protection only for that one "original" display. However, the repeated appearance of the same sequence of numerous sights and sounds in each play of the game defeats this branch of the argument. Attacking from the opposite flank, appellants contend that the audiovisual display contains no originality because all of its reappearing features are determined by the previously created computer program. This argument is also without merit. The visual and aural features of the audiovisual display are plainly original variations sufficient to render the display copyrightable even though the underlying written program has an independent existence and is itself eligible for copyright. Nor is copyright defeated because the audiovisual work and the computer program are both embodied in the same components of the game. The same thing occurs when an audio tape embodies both a musical composition and a sound recording. Moreover, the argument overlooks the sequence of the creative process. Someone first conceived what the audiovisual display would look like and sound like. Originality occurred at that point. Then the program was written. Finally, the program was imprinted into the memory devices so that, in operation with the components of the game, the sights and sounds could be seen and heard. The resulting display satisfies the requirement of an original work.

12
We need not decide at what point the repeating sequence of images would form too insubstantial a portion of an entire display to warrant a copyright, nor the somewhat related issue of whether a sequence of images (e.g., a spaceship shooting down an attacking plane) might contain so little in the way of particularized form of expression as to be only an abstract idea portrayed in noncopyrightable form, see 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). Assessing the entire effect of the game as it appears and sounds, we conclude that its repetitive sequence of images is copyrightable as an audiovisual display. See Atari, Inc. v. Amusement World, Inc., No. 81-803 (D.Md. Nov. 27, 1981); Midway Manufacturing Co. v. Drikschneider, No. 81-0-243 (D.Neb. July 15, 1981); Williams Electronics, Inc. v. Artic International, Inc., Civ. No. 81-1852 (D.N.J. June 24, 1981); Cinematronics, Inc. v. K. Noma Enterprise Co., Civ. No. 81-439 (D.Ariz. May 22, 1981).

2. Trademark Issue

13
Appellants contend that they, rather than appellee, have superior common law rights in the mark "SCRAMBLE" based on their use of the mark in the United States in early 1981, prior to appellants' use. The District Court found that appellants' prior use was not bona fide and that appellee's use entitled it to injunctive relief against appellants' use. We agree.

14
Though there is no direct evidence that Omni learned of the "SCRAMBLE" mark because of the planned use of the mark by Konami and Stern, that inference was available to the District Court, at least for purposes of considering Stern's entitlement to a preliminary injunction. Omni appears to have attempted only a preemptive use of the mark by ordering just ten name plates with the mark and affixing just five of them to headboards of units of separately named games sold in early 1981. Cf. La Societe Anonyme Des Parfum LeGalion v. Jean Patou, Inc., 495 F.2d 1265 (2d Cir. 1974). The District Court was entitled to conclude that Omni was simply attaching a secondary label in a bad faith attempt to reserve a mark. Blue Bell, Inc. v. Farah Manufacturing Co., 508 F.2d 1260 (5th Cir. 1975); Blue Bell, Inc. v. Jaymar-Ruby, Inc., 497 F.2d 433 (2d Cir. 1974). Omni's claim that it sought to establish a trade name for its line of separately named, interchangeable games is undermined by the fact that once it secured a "knock-off" of Stern's "Scramble" game, it affixed only the mark "SCRAMBLE", thereby designating the name of the game, and not the line of which it was a part. As Judge Nickerson observed, "(I)t would be a truly remarkable coincidence if defendants independently thought of the name 'Scramble' and then, only a few months later, produced a video game virtually identical to the one bearing the same name. It is more likely that defendants sought to appropriate the trademark with the expectation that they would later imitate the audiovisual display."

15
Moreover, the equities abundantly justified issuance of an injunction against Omni's use of the mark. Stern has a substantial investment in the mark, having achieved success in the marketplace with its sales of a large number of units bearing the mark. By contrast, Omni has placed the mark on the headboard of five units of games that are not "Scramble" and has used the mark for a "Scramble" game that is a pirated "knock-off" of Stern's game.

16
The preliminary injunction is affirmed.

*
The Honorable Edward Dumbauld of the United States District Court for the Western District of Pennsylvania, sitting by designation

1
Memory devices of computers are generally either RAM (random access memory) or ROM (read only memory). RAM, used in most sophisticated computers, is a memory device in which stored information can be changed simply by writing in new information that replaces old information. The stored information in a ROM cannot be changed; it is imprinted into the ROM when the device is manufactured. A PROM is a ROM into which information can be imprinted (programmed) after manufacture; once the information is programmed in a PROM, it cannot be changed simply by writing in a new program. See A. Lippiatt, The Architecture of Small Computer Systems § 1.4.6, at 12-13 (1979)

2
"Attract mode" refers to the audiovisual display seen and heard by a prospective customer contemplating playing the game; the video screen displays some of the essential visual and sound characteristics of the game. "Play mode" refers to the audiovisual display seen and heard by a person playing the game

3
Written computer programs are copyrightable as literary works. See 1 M. Nimmer, Nimmer on Copyright § 2.04(C) (1981)

4
In arguing that the permanent "imprinting" of the computer program in the game's memory devices satisfies the requirement of fixation in a tangible medium, appellees direct our attention to the PROM, which contains, in electronically usable form, the computer program for the game. While the PROM device contains the program specifically written for the "Scramble" game, there are undoubtedly some items of program stored in memory devices located in other components of the game. Whether located in the PROM prepared for this particular game or elsewhere in the total assembly, all portions of the program, once stored in memory devices anywhere in the game, are fixed in a tangible medium within the meaning of the Act

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text: deposit

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text: copies

text: of

text: a

text: work

text: to

text: be

text: copyrighted

text: U

text: S

text: C

text: App

text: b

text: Konami

text: submitted

text: video

text: tape

text: recordings

text: of

text: the

text: Scramble

text: game

text: both

text: in

text: its

text: attract

text: mode

text: and

text: in

text: its

text: play

text: mode

text: Omni

text: alleges

text: that

text: concurrently

text: with

text: Stern

text: s

text: sales

text: of

text: the

text: Scramble

text: game

text: and

text: even

text: earlier

text: it

text: was

text: endeavoring

text: to

text: sell

text: a

text: line

text: of

text: video

text: game

text: products

text: so

text: constructed

text: that

text: each

text: unit

text: could

text: be

text: equipped

text: for

text: playing

text: different

text: games

text: by

text: substituting

text: a

text: PROM

text: containing

text: the

text: program

text: for

text: a

text: particular

text: game

text: Omni

text: contends

text: that

text: it

text: planned

text: to

text: market

text: this

text: line

text: of

text: interchangeable

text: games

text: with

text: the

text: label

text: Scramble

text: affixed

text: to

text: the

text: headboard

text: of

text: each

text: unit

text: the

text: name

text: of

text: the

text: particular

text: game

text: was

text: also

text: to

text: be

text: prominently

text: displayed

text: On

text: December

text: Omni

text: s

text: president

text: ordered

text: ten

text: silk

text: screen

text: name

text: plates

text: bearing

text: the

text: name

text: Scramble

text: Between

text: that

text: date

text: and

text: March

text: the

text: date

text: of

text: Stern

text: s

text: first

text: sale

text: of

text: its

text: Scramble

text: game

text: Omni

text: sold

text: five

text: units

text: of

text: video

text: games

text: bearing

text: the

text: name

text: Scramble

text: on

text: the

text: headboard

text: In

text: April

text: Omni

text: began

text: to

text: sell

text: a

text: video

text: game

text: called

text: Scramble

text: that

text: not

text: only

text: bears

text: the

text: same

text: name

text: as

text: the

text: Scramble

text: game

text: Stern

text: was

text: then

text: marketing

text: but

text: also

text: is

text: virtually

text: identical

text: in

text: both

text: sight

text: and

text: sound

text: It

text: sold

text: this

text: copy

text: of

text: Stern

text: s

text: Scramble

text: game

text: known

text: in

text: the

text: trade

text: as

text: a

text: knock

text: off

text: for

text: several

text: hundred

text: dollars

text: less

text: than

text: Stern

text: s

text: game

text: Copyright

text: Issues

text: In

text: challenging

text: the

text: preliminary

text: injunction

text: that

text: bars

text: distribution

text: of

text: its

text: Scramble

text: game

text: Omni

text: does

text: not

text: dispute

text: that

text: Konami

text: and

text: its

text: sub

text: licensee

text: Stern

text: are

text: entitled

text: to

text: secure

text: some

text: copyright

text: protection

text: for

text: their

text: Scramble

text: game

text: Omni

text: contends

text: that

text: Konami

text: was

text: entitled

text: to

text: copyright

text: only

text: the

text: written

text: computer

text: program

text: that

text: determines

text: the

text: sights

text: and

text: sounds

text: of

text: the

text: game

text: s

text: audiovisual

text: display

text: While

text: that

text: approach

text: would

text: have

text: afforded

text: some

text: degree

text: of

text: protection

text: it

text: would

text: not

text: have

text: prevented

text: a

text: determined

text: competitor

text: from

text: manufacturing

text: a

text: knock

text: off

text: of

text: Scramble

text: that

text: replicates

text: precisely

text: the

text: sights

text: and

text: sounds

text: of

text: the

text: game

text: s

text: audiovisual

text: display

text: This

text: could

text: be

text: done

text: by

text: writing

text: a

text: new

text: computer

text: program

text: that

text: would

text: interact

text: with

text: the

text: hardware

text: components

text: of

text: a

text: video

text: game

text: to

text: produce

text: on

text: the

text: screen

text: the

text: same

text: images

text: seen

text: in

text: Scramble

text: accompanied

text: by

text: the

text: same

text: sounds

text: Such

text: replication

text: is

text: possible

text: because

text: many

text: different

text: computer

text: programs

text: can

text: produce

text: the

text: same

text: results

text: whether

text: those

text: results

text: are

text: an

text: analysis

text: of

text: financial

text: records

text: or

text: a

text: sequence

text: of

text: images

text: and

text: sounds

text: A

text: program

text: is

text: simply

text: a

text: set

text: of

text: statements

text: i

text: e

text: data

text: or

text: instructions

text: to

text: be

text: used

text: directly

text: or

text: indirectly

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text: a

text: computer

text: in

text: order

text: to

text: bring

text: about

text: a

text: certain

text: result

text: Pub

text: L

text: No

text: a

text: Stat

text: amending

text: U

text: S

text: C

text: App

text: To

text: take

text: an

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text: example

text: the

text: result

text: of

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text: can

text: be

text: achieved

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text: an

text: instruction

text: to

text: add

text: and

text: subtract

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text: or

text: in

text: a

text: variety

text: of

text: other

text: ways

text: Obviously

text: writing

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text: new

text: program

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text: replicate

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text: play

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text: Scramble

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text: sophisticated

text: effort

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text: manageable

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text: secure

text: protection

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text: a

text: knock

text: off

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text: Scramble

text: based

text: upon

text: an

text: original

text: program

text: Konami

text: eschewed

text: registration

text: of

text: its

text: program

text: as

text: a

text: literary

text: work

text: and

text: chose

text: instead

text: to

text: register

text: the

text: sights

text: and

text: sounds

text: of

text: Scramble

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text: an

text: audiovisual

text: work

text: See

text: U

text: S

text: C

text: App

text: a

text: The

text: Act

text: defines

text: audiovisual

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text: works

text: that

text: consist

text: of

text: a

text: series

text: of

text: related

text: images

text: which

text: are

text: intrinsically

text: intended

text: to

text: be

text: shown

text: by

text: the

text: use

text: of

text: machines

text: or

text: devices

text: such

text: as

text: projectors

text: viewers

text: or

text: electronic

text: equipment

text: together

text: with

text: accompanying

text: sounds

text: if

text: any

text: regardless

text: of

text: the

text: nature

text: of

text: the

text: material

text: objects

text: such

text: as

text: films

text: or

text: tapes

text: in

text: which

text: the

text: works

text: are

text: embodied

text: U

text: S

text: C

text: App

text: Omni

text: contends

text: that

text: Konami

text: is

text: not

text: entitled

text: to

text: secure

text: a

text: copyright

text: in

text: the

text: sights

text: and

text: sounds

text: of

text: its

text: Scramble

text: game

text: because

text: the

text: audiovisual

text: work

text: is

text: neither

text: fixed

text: in

text: any

text: tangible

text: medium

text: of

text: expression

text: nor

text: original

text: within

text: the

text: meaning

text: of

text: a

text: Both

text: contentions

text: arise

text: from

text: the

text: fact

text: that

text: the

text: sequence

text: of

text: some

text: of

text: the

text: images

text: appearing

text: on

text: the

text: screen

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text: each

text: play

text: of

text: the

text: game

text: will

text: vary

text: depending

text: upon

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text: actions

text: taken

text: by

text: the

text: player

text: For

text: example

text: if

text: he

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text: to

text: avoid

text: enemy

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text: his

text: spaceship

text: will

text: be

text: destroyed

text: if

text: he

text: fails

text: to

text: destroy

text: enough

text: fuel

text: depots

text: his

text: own

text: fuel

text: supply

text: will

text: run

text: out

text: and

text: his

text: spaceship

text: will

text: crash

text: if

text: he

text: succeeds

text: in

text: destroying

text: missile

text: sites

text: and

text: enemy

text: planes

text: those

text: images

text: will

text: disappear

text: from

text: the

text: screen

text: and

text: the

text: precise

text: course

text: travelled

text: by

text: his

text: spaceship

text: will

text: depend

text: upon

text: his

text: adjustment

text: of

text: the

text: craft

text: s

text: altitude

text: and

text: velocity

text: If

text: the

text: content

text: of

text: the

text: audiovisual

text: display

text: were

text: not

text: affected

text: by

text: the

text: participation

text: of

text: the

text: player

text: there

text: would

text: be

text: no

text: doubt

text: that

text: the

text: display

text: itself

text: and

text: not

text: merely

text: the

text: written

text: computer

text: program

text: would

text: be

text: eligible

text: for

text: copyright

text: The

text: display

text: satisfies

text: the

text: statutory

text: definition

text: of

text: an

text: original

text: audiovisual

text: work

text: and

text: the

text: memory

text: devices

text: of

text: the

text: game

text: satisfy

text: the

text: statutory

text: requirement

text: of

text: a

text: copy

text: in

text: which

text: the

text: work

text: is

text: fixed

text: The

text: Act

text: defines

text: copies

text: as

text: material

text: objects

text: in

text: which

text: a

text: work

text: is

text: fixed

text: by

text: any

text: method

text: now

text: known

text: or

text: later

text: developed

text: and

text: from

text: which

text: the

text: work

text: can

text: be

text: perceived

text: reproduced

text: or

text: otherwise

text: communicated

text: either

text: directly

text: or

text: with

text: the

text: aid

text: of

text: a

text: machine

text: or

text: device

text: and

text: specifies

text: that

text: a

text: work

text: is

text: fixed

text: when

text: its

text: embodiment

text: in

text: a

text: copy

text: is

text: sufficiently

text: permanent

text: or

text: stable

text: to

text: permit

text: it

text: to

text: be

text: perceived

text: reproduced

text: or

text: otherwise

text: communicated

text: for

text: a

text: period

text: of

text: more

text: than

text: transitory

text: duration

text: U

text: S

text: C

text: App

text: The

text: audiovisual

text: work

text: is

text: permanently

text: embodied

text: in

text: a

text: material

text: object

text: the

text: memory

text: devices

text: from

text: which

text: it

text: can

text: be

text: perceived

text: with

text: the

text: aid

text: of

text: the

text: other

text: components

text: of

text: the

text: game

text: We

text: agree

text: with

text: the

text: District

text: Court

text: that

text: the

text: player

text: s

text: participation

text: does

text: not

text: withdraw

text: the

text: audiovisual

text: work

text: from

text: copyright

text: eligibility

text: No

text: doubt

text: the

text: entire

text: sequence

text: of

text: all

text: the

text: sights

text: and

text: sounds

text: of

text: the

text: game

text: are

text: different

text: each

text: time

text: the

text: game

text: is

text: played

text: depending

text: upon

text: the

text: route

text: and

text: speed

text: the

text: player

text: selects

text: for

text: his

text: spaceship

text: and

text: the

text: timing

text: and

text: accuracy

text: of

text: his

text: release

text: of

text: his

text: craft

text: s

text: bombs

text: and

text: lasers

text: Nevertheless

text: many

text: aspects

text: of

text: the

text: sights

text: and

text: the

text: sequence

text: of

text: their

text: appearance

text: remain

text: constant

text: during

text: each

text: play

text: of

text: the

text: game

text: These

text: include

text: the

text: appearance

text: shape

text: color

text: and

text: size

text: of

text: the

text: player

text: s

text: spaceship

text: the

text: enemy

text: craft

text: the

text: ground

text: missile

text: bases

text: and

text: fuel

text: depots

text: and

text: the

text: terrain

text: over

text: which

text: and

text: beneath

text: which

text: the

text: player

text: s

text: ship

text: flies

text: as

text: well

text: as

text: the

text: sequence

text: in

text: which

text: the

text: missile

text: bases

text: fuel

text: depots

text: and

text: terrain

text: appears

text: Also

text: constant

text: are

text: the

text: sounds

text: heard

text: whenever

text: the

text: player

text: successfully

text: destroys

text: an

text: enemy

text: craft

text: or

text: installation

text: or

text: fails

text: to

text: avoid

text: an

text: enemy

text: missile

text: or

text: laser

text: It

text: is

text: true

text: as

text: appellants

text: contend

text: that

text: some

text: of

text: these

text: sights

text: and

text: sounds

text: will

text: not

text: be

text: seen

text: and

text: heard

text: during

text: each

text: play

text: of

text: the

text: game

text: in

text: the

text: event

text: that

text: the

text: player

text: s

text: spaceship

text: is

text: destroyed

text: before

text: the

text: entire

text: course

text: is

text: traversed

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text: the

text: images

text: remain

text: fixed

text: capable

text: of

text: being

text: seen

text: and

text: heard

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text: time

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text: player

text: succeeds

text: in

text: keeping

text: his

text: spaceship

text: aloft

text: long

text: enough

text: to

text: permit

text: the

text: appearances

text: of

text: all

text: the

text: images

text: and

text: sounds

text: of

text: a

text: complete

text: play

text: of

text: the

text: game

text: The

text: repetitive

text: sequence

text: of

text: a

text: substantial

text: portion

text: of

text: the

text: sights

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text: sounds

text: of

text: the

text: game

text: qualifies

text: for

text: copyright

text: protection

text: as

text: an

text: audiovisual

text: work

text: Appellants

text: claim

text: that

text: the

text: work

text: lacks

text: originality

text: proceeds

text: along

text: two

text: lines

text: Repeating

text: their

text: attack

text: on

text: fixation

text: they

text: assert

text: that

text: each

text: play

text: of

text: the

text: game

text: is

text: an

text: original

text: work

text: because

text: of

text: the

text: player

text: s

text: participation

text: The

text: videotape

text: of

text: a

text: particular

text: play

text: of

text: the

text: game

text: they

text: assert

text: secured

text: protection

text: only

text: for

text: that

text: one

text: original

text: display

text: However

text: the

text: repeated

text: appearance

text: of

text: the

text: same

text: sequence

text: of

text: numerous

text: sights

text: and

text: sounds

text: in

text: each

text: play

text: of

text: the

text: game

text: defeats

text: this

text: branch

text: of

text: the

text: argument

text: Attacking

text: from

text: the

text: opposite

text: flank

text: appellants

text: contend

text: that

text: the

text: audiovisual

text: display

text: contains

text: no

text: originality

text: because

text: all

text: of

text: its

text: reappearing

text: features

text: are

text: determined

text: by

text: the

text: previously

text: created

text: computer

text: program

text: This

text: argument

text: is

text: also

text: without

text: merit

text: The

text: visual

text: and

text: aural

text: features

text: of

text: the

text: audiovisual

text: display

text: are

text: plainly

text: original

text: variations

text: sufficient

text: to

text: render

text: the

text: display

text: copyrightable

text: even

text: though

text: the

text: underlying

text: written

text: program

text: has

text: an

text: independent

text: existence

text: and

text: is

text: itself

text: eligible

text: for

text: copyright

text: Nor

text: is

text: copyright

text: defeated

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text: the

text: audiovisual

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text: the

text: computer

text: program

text: are

text: both

text: embodied

text: in

text: the

text: same

text: components

text: of

text: the

text: game

text: The

text: same

text: thing

text: occurs

text: when

text: an

text: audio

text: tape

text: embodies

text: both

text: a

text: musical

text: composition

text: and

text: a

text: sound

text: recording

text: Moreover

text: the

text: argument

text: overlooks

text: the

text: sequence

text: of

text: the

text: creative

text: process

text: Someone

text: first

text: conceived

text: what

text: the

text: audiovisual

text: display

text: would

text: look

text: like

text: and

text: sound

text: like

text: Originality

text: occurred

text: at

text: that

text: point

text: Then

text: the

text: program

text: was

text: written

text: Finally

text: the

text: program

text: was

text: imprinted

text: into

text: the

text: memory

text: devices

text: so

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text: in

text: operation

text: with

text: the

text: components

text: of

text: the

text: game

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text: sounds

text: could

text: be

text: seen

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text: heard

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text: resulting

text: display

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text: the

text: requirement

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text: need

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text: form

text: too

text: insubstantial

text: a

text: portion

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text: entire

text: display

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text: copyright

text: nor

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text: somewhat

text: related

text: issue

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text: sequence

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text: images

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text: spaceship

text: shooting

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text: attacking

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text: might

text: contain

text: so

text: little

text: in

text: the

text: way

text: of

text: particularized

text: form

text: of

text: expression

text: as

text: to

text: be

text: only

text: an

text: abstract

text: idea

text: portrayed

text: in

text: noncopyrightable

text: form

text: see

text: Nichols

text: v

text: Universal

text: Pictures

text: Corp

text: F

text: d

text: d

text: Cir

text: cert

text: denied

text: U

text: S

text: S

text: Ct

text: L

text: Ed

text: Assessing

text: the

text: entire

text: effect

text: of

text: the

text: game

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text: sounds

text: we

text: conclude

text: that

text: its

text: repetitive

text: sequence

text: of

text: images

text: is

text: copyrightable

text: as

text: an

text: audiovisual

text: display

text: See

text: Atari

text: Inc

text: v

text: Amusement

text: World

text: Inc

text: No

text: D

text: Md

text: Nov

text: Midway

text: Manufacturing

text: Co

text: v

text: Drikschneider

text: No

text: D

text: Neb

text: July

text: Williams

text: Electronics

text: Inc

text: v

text: Artic

text: International

text: Inc

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text: No

text: D

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text: Cinematronics

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