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.

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.

Atari v. North American Phillips Consumer Electronics is a primary case in determining video game copyright law. Atari/Midway sued North America Phillips Consumer Electronics on the ground that their game, K C Munchkin directly infringed upon Atari's original, copyrighted game, Pac Man. Pac Man was copyrighted as an audio visual work, and so the very fact that KC Munchkin possessed similar visual and aural elements, not to mention near identical game play , was the basis for the lawsuit. The case beings by describing in meticulous detail, the copyrighted work of Pac Man, from the shape of the pixilated creatures, the position of the "gobbler", right down to the number of "power pellets" on the maze-like playing field. Conversely, aural and visual elements of the accused KC Munchkin game were also painstakingly reviewed down to the smallest detail. Minute differences, such as the number of dots/power pellets, and the position of the "gobbler" at the initiation of game play, are heavily scrutinized. While there were found to be evident similarities in so far as both games display the same basic element (such as a mina, "gobbler" character, ghostlike enemies, pellets, maze structure, etc.) the court concluded that there were enough differences between the games that an injunction was not necessary. The court maintained that differing elements such as the personification of the KC Munchkin character, the different sounds and even the fact that the KC Munchkin ghosts were "spookier" were enough to make the games significantly different. The factor that games are not protected under copyright law was a rather large issue, and so there was credit given to the artistic visual aspects of the game. In addition, the question of how much of the elements of the game were original and artistic, and how much of them were common sense, was also a big factor. The graphics also came into discussion, with the belief that the technology simply could not allow for drastic distinction between characters.
However, with an appeal, Atari was in fact able to take KC Munchkin off the market. The court employed the "ordinary observer test" and concluded that even though there were differences between the games, to the average player there would really be no distinction (nor care) for differences between the games "artistic expression".
This case is extremely important to my paper because within it are various examples of the way in which video games can be misinterpreted, and the complications that can arise from such interpretations. Labeling Pac Man as an audio visual work, along with the fact that source code is not mentioned at all within the case are very important factors to my paper. How can copyright define a video game? Also, visually, the court determines the similarities between both games as a fault of the graphics, and this is certainly something that can not be said of later games, as technology advances.