Adaptation of Copyright Law to Video Games
![handle is hein.journals/pnlr131 and id is 187 raw text is: 19821
THE ADAPTATION OF COPYRIGHT LAW TO VIDEO
GAMES
THOMAS M. S. HEMNESt
Video games are big business. The earliest games appeared in the
early 1970s,1 and by 1981, a single game, Pac-Man, had generated
$150 million in sales over a thirteen month period2 and $1 billion in
revenues for arcade operators in the course of a year.' Sales of another
game, Scramble, totaled $20 million over a two month period during
1981. Games played in arcades have become so popular that the man-
ufacturers have felt constrained to protest, perhaps too much, that the
games are not reprehensible diversions for idlers.5
As the video game business has grown, video game competition has
grown as well. Galactic Invaders wars with Galaxian; Asteroids
and Meteors collide; Pac-Man contends with K.C. Munchkin.'
Video game owners and licensees are eager to stake out their market
shares, resorting in part to suits and threats of suits to achieve their
business goals. One video game purveyor, Atari, actually fielded a na-
tionwide advertising campaign warning that it registers the audiovi-
sual works associated with its games, that it considers its games pro-
prietary, and that it will vigorously [enforce] these copyrights.'7
Despite the hopes of Atari and its kind that the courts will protect
their market penetration, video games themselves are in many ways
perversely unsuited to traditional forms of legal protection, particularly
protection against copyright infringement. The owner of the copyright
t A.B. 1970, Harvard College; J.D. 1974, Harvard University. Mr. Hemnes is a partner in
the Boston firm of Foley, Hoag & Eliot.
1 One of the first video games was Pong, which was introduced in 1972. Washington Post,
Mar. 11, 1982, at DC1 (District Weekly), col. 1.
2 See Atari, Inc. v. North American Philips Consumer Elecs. Corp., 2 COPYRIGHT L. REP.
(CCH) 1 25,363, at 17,045-46 (N.D. I1. Dec. 4, 1981), rev'd, 672 F.2d 607 (7th Cir.), cert.
denied, 51 U.S.L.W. 3258 (U.S. Oct. 4, 1982).
3 See Wall St. J., Mar. 12, 1982, at 25, col. 3.
4 See Stern Elecs., Inc. v. Kaufman, 669 F.2d 852, 854 (2d Cir. 1982).
s Lippman, Warner's Atari Video Games are a Rocketship to Riches, Washington Post,
Nov. 8, 1981, at Fl, col. 1.
See cases discussed infra text accompanying notes 85-90, 106-22, 124-42.
See the Atari advertisement appearing in the November 1981 issue of Creative Computing.
CREATIVE COMPUTING, Nov. 1981, at 99. Despite the amount of litigation on copyright in video
games, suprisingly little has been written on the subject. However, a useful overview of the sub-
ject, including a detailed discussion of the interplay of the games and the computer software used
to operate them, is Jones, Video Game Litigation and the 1976 Copyright Act: The Idea of
Games, the Expression of Aliens and the Underlying Computer Software, 1 J. COPYRIGHT, EN-
TERTAINMENT AND BOOK LAW 17 (1982).
(171)](ViewImageLocal?handle=hein.journals/pnlr131&div=15&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Adaptation of Copyright Law to Video Games
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most