Nintendo sued Lewis Galoob Toys, Inc with the belief that its Game Genie device infringes on Nintendo's copyrighted games, by creating derivative works each time it is used in conjunction with both the Nintendo console and corresponding games. The District Court however, did not agree with Nintendo on this matter. Upon examination of the way in which the Game Genie interacts with both the Nintendo games and the Nintendo system, it was found that the device only serves to temporarily "enhance" said games, and therefore does not infringe upon Nintendo's existing copyrighted material. Not only was there no permanence, but the Game Genie was found to merely interfere with the signal between the Nintendo system and the game itself, which would not allow it to alter the source code of the game being played.
Nintendo appealed with the argument that the Court should focus on the visual elements produced, which they claimed to be derivative works. The court discusses the fact that improvement is laudable, while replacement is not. The spell checker for a word processing program is used as an example of a positive improvement/enhancement. And with that, the subject of fair use was taken into account, and the functions of the Game Genie were scrutinized in relation to the four factors that allow for fair use to be claimed. If in fact the Game Genie was determined to create derivative works, then the question was, would they be allowed under the factors of fair use?
The out come was a positive one for Galoob. The Game Genie's temporary derivative works were determined to be non-commercial, and they were not found to cost Nintendo any loss of profit. Therefore, no injunction was granted to Nintendo.
This case is an interesting one because of the fact that the Court discussed the coding of the games, which proves that there is a growing understanding of such technology among court officials. In addition, it shows a progression of Copyright law which allows it to accommodate new technologies.

My project is based on the fact that while Copyright law is forever being tranformed by new advances in technology, it is the meduim of video games that most heavily influence changes within copyright law. Video Games not only rely upon strict definitions of source code, and object code like computer software does, but the determination of what should be copyright protected and what should not, is also heavily determined by the audio and visual aspects of the games, along with graphics and plots that must be non infringing as well. While the same applies for computers and computer software, early video game cases brought forth these various definitive questions immediately upon their integration into the mainstream. My paper focuses on several of these cases in order to determine why and how they were so influential to media related copyright law as we know it today.

Universal sues Nintendo over the rights to King Kong, claiming that Nintendo's Donkey Kong character directly infringed upon their giant ape character of a similar name. In retaliation, Nintendo made a counterclaim that a King Kong game licensed to Tiger electronics was directly infringing upon their copyright of Donkey Kong. The court ended up in favor of Nintendo, and so Universal appealed their claim. However, there really were no grounds for this suit, as Universal failed obtain and include the actual film(s) of King Kong as the subjects of infringement. Instead, Universal was basically producing a claim that Nintendo was infringing upon their "mascot" or image of the gorilla who possesses a woman, which they believed to be copyright protected. Considering the likelihood of consumer confusion between Donkey Kong and King Kong, the Court determined that the chances of someone believing Donkey Kong to be King Kong were slim to none. Many factors were brought into question, such as the temperament and disposition of the characters in question, along with the medium of the work, and even the sophistication of the consumer. Donkey Kong, while still a giant gorilla, had a much different temperament than King Kong. While King Kong was ferocious and domineering, Donkey Kong is almost loveable and sympathetic, making him if anything, a parody of King Kong. In addition, a survey was conducted among owners of the arcade game in order to answer the question of whether or not there was any confusion between the characters, although flaws in the survey left it inconclusive. And so it was determined that the characters were indeed different, and so Universal was not granted injunctive relief.
This lawsuit has bearing on my paper because it brings forth the subject of graphics in games, and how a pixilated image can be argued to be an infringement of an object or character within ulterior media. It also documents the success of the video game industry, as a large company such as Universal would certainly not make such an obviously fruitless claim if it did not anticipate competition from the defendant company.

Serving as a focal point to my paper, this work entitled "The Adaptation of Copyright Law to Video Games" discusses the growth of competition that is a result of growth within the video game market, and the desperate need for copyright law that will accurately protect video games against infringement. Hemnes considers how copyright law may not accurately represent the creativity that goes into creating video games, as the Copyright Act does not protect games, method of operation, ideas, and so on. All in all, there were at the time of this publication, definite limits to copyright in terms of software protection. Hemnes goes on to describe each "blackletter law" of the copyright act in relation to video games, starting with the law that games are not protected under copyright provision. There is a certain problem in that a game can be considered "unoriginal" in that it has certain "obvious" elements to its game play, such as a car in a racing game, or lasers within a space game. However, Hemnes notes that the programming behind such aspects is of utmost importance, and should be regarded as copyrightable material in that it required hard work and skill on the behalf of the programmer.
Hemnes used several cases to illustrate his point that in most early cases, video games are either over or under-protected. Cases such as the Pac Man or Galaxian cases are used as examples in which copyright law applies differently to video games than it would to another medium, such as literature. Although not mentioned within the text, the novel "The Wind Done Gone" is an example of a derivative work that could be considered to have undergone a similar case. However, while the novel was considered fair use, the speeding up of the game Galaxian was not.
What is most important, Hemnes argues, is the preservation of originality and expression of ideas, which in his conclusion he believes could be better achieved through more careful analysis of the effects that video games have upon elements of the fair use doctrine. Considering my paper focuses on the ever growing complexities of video game and computer game software, it is important to take into account early video game cases and the obvious flaws in their litigation.

(Nintendo)

(Samuelson, 1996)

(Samuelson, 1993)

(Genie)

(NES)

"So it should be no surprise that the video game industry is plagued by legal battles -- many of which have shaped companies and games as we know them. And it's hardly a new trend; the justice system has a long relationship with videogames, stretching back to the medium's infancy."

 need to read this one...