Copyright Legal Case

Lewis Galoob Toys, Inc. v. Nintendo of America, Inc. (Ninth Circuit Court of Appeals, 1992) was a court case which established the rights of users to modify copyrighted works for their own use. Galoob manufactured an add-on product called Game Genie, which allowed users to modify video games by entering in certain codes; for example, a code might make the player invincible by negating the programming that updates the player's health amount. Nintendo, which sold a video game system and video games that could be modified by Game Genie, sued Galoob for copyright infringement, arguing that Game Genie made a derivative work, violating Nintendo's copyright in their video games.

The Court denied Nintendo's motion for a preliminary injunction, holding that Game Genie did not create a derivative work and also suggesting that even if it did, it might well be fair use. As the district court wrote, "Having paid Nintendo a fair return, the consumer may experiment with the product and create new variations of play, for personal enjoyment, without creating a derivative work."

Derivative Work: The Copyright Act of 1976 gives copyright holders the exclusive right to prepare and authorize others to prepare derivative works based on their copyrighted works. Nintendo argues that the district court made a mistake in claiming that the audiovisual displays created by the Game Genie are not derivative works. A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work that consists of editing changes, adding, elaborating, or other modifications that try to pass itself off as an original work is a "derivative work.

Some time ago, for example, computer companies began marketing spell-checkers that operate within already existing word processors by signalling the writer when a word is misspelled. These applications could not be made and marketed if courts would say that the audiovisual display of a word processors and spell-checkers are derivative works based on the design of the word processor. The Game Genie is useless by itself. It can only enhance, and cannot duplicate, a game. Such innovations rarely will constitute derivative works under the Copyright Act.

Fair Use: The fair use doctrine allows a holder of the privilege to use copyrighted material in a reasonable manner without the consent of the copyright owner. The district court concluded that, even if the audiovisual displays created by the Game Genie are derivative works, Galoob is not liable because the displays are a fair use of Nintendo's copyrighted displays.

Factors that determine fair use are:

1.) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.

2.) The nature of the copyrighted work.

3.) The amount and value of the portion used in relation to the copyrighted work as a whole.

4.) The effect of the use on the potential market for the copyrighted work.

Museum of IP



http://www.law.uconn.edu/homes/swilf/ip/cases/lewis.htm
http://www.youtube.com/watch?v=v3EYqSevmuE&feature=related
http://museumofintellectualproperty.eejlaw.com/exhibits/images/game_genie_item_fv_m_6515.JPG