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Atari Games v. Oman

Atari Games v. Oman

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Published by: gesmer on Sep 30, 2008
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 United States Court of Appeals,District of Columbia Circuit.ATARI GAMES CORPORATION,Appellant,v.Ralph OMAN, Register of Copyrights.
No. 88-5296.
Argued Sept. 18, 1989.Decided Oct. 31, 1989.Material from Public Domain. Most Cited  Cases(Formerly 99k12.1)Scènes à faire doctrine limits only the scopeof the given material's copyright protection,not its copyrightability. 17 U.S.C.A. § 101. Before RUTH BADER GINSBURG,SILBERMAN and D.H. GINSBURG,Circuit Judges.Opinion for the Court filed by Circuit JudgeRUTH BADER GINSBURG.Opinion concurring in the judgment filed byCircuit Judge SILBERMAN.RUTH BADER GINSBURG, Circuit Judge:By letter dated December 7, 1987, theCopyright Office reported its final actionrefusing to register a claim to copyright inthe video game BREAKOUT, anaudiovisual work created in 1975 by Atari,Inc., the predecessor of plaintiff-appellantAtari Games Corporation (Atari). TheDecember 1987 letter, written on behalf of the United States Register of Copyrights(Register), stated that the video game inquestion does not contain sufficientoriginal visual or musical authorship towarrant registration.” Invoking the judicialreview prescriptions of the AdministrativeProcedure Act, 5 U.S.C. §§ 701-706, Atari unsuccessfully challenged the agency'sdetermination in the district court as“arbitrary, capricious, an abuse of discretion,or otherwise not in accordance with law.”5 U.S.C. § 706(2)(A).
17 U.S.C. § 701(d) (specifying that most actions taken by the Register of Copyrights aresubject to the provisions of theAdministrative Procedure Act).In this appeal from the district court's entryof summary judgment for the Register, wehold that the Copyright Office did notintelligibly account for its ruling. Becausewe are unable to determine on the currentrecord whether the Register's actioncomports with the demand of reasoneddecisionmaking, we vacate the districtcourt's judgment and remand the case to thatcourt with instructions to return the matter tothe Copyright Office for furtheconsideration consistent with this opinion.I. Background and Prior ProceedingsBREAKOUT, the audiovisual work that isthe subject of this dispute, is a coin-operated, ball and paddle video gamecreated in 1975 and successfully marketed by Atari in the following years.
 BREAKOUT's audiovisual display featuresa wall formed by red, amber, green, and bluelayers of rectangles representing bricks. A player maneuvers a control knob that causesa rectangular-shaped representation of a paddle to hit a square-shaped representationof a ball against the brick wall. When the ball hits a brick, that brick disappears fromits row, the player scores points, and a brick 
on a higher row becomes exposed. A“breakout” occurs when the ball penetratesthrough all rows of bricks and moves intothe space between the wall and the top of thescreen; the ball then ricochets in a zig-zag pattern off the sides of the screen and the toplayer of the wall, removing bricks uponcontact and adding more points to the player's score. Various tones sound as the ball touches different objects or places onthe screen. The size of the paddle diminishesand the motion of the ball accelerates as thegame is played.FN2.Copyrights registered in June1983 in the home version oBREAKOUT and in the homeversion of SUPER BREAKOUTwere not timely brought to theattention of the district court andform no part of the record before thiscourt.
See Atari Games v. Oman,
 No. 88-0021 (D.D.C. Aug. 18, 1988)(memorandum order denying motionfor reconsideration).By letter dated February 5, 1987, Atarisought expedited registration of a copyrightclaim in the audiovisual work embodied inBREAKOUT. Atari asserted an “urgent needfor special handling because of prospectivelitigation in which [Atari] would be actingas plaintiff.”
See infra
note 3. TheCopyright Office responded promptly, butunfavorably. By letter dated February 13,1987, Copyright Examiner CarmenMartorana declared the work notcopyrightable. He reasoned that “[t]o beconsidered an audiovisual work foregistration purposes, the work must containrelated pictorial or graphic images, and at
least one of those images must be copyrightable.” BREAKOUT did notqualify, he wrote, because neither the“ [c]ommon geometric shapes ... containedin th[e] work” nor “the coloring of th[o]seshapesconstituted copyrightable subjectmatter. Similarly, he stated, “ [t]here is notenough original authorship to register aclaim in the sounds.” He further said thatthe “images ... created by playing the videogame ... are also not registrable since theyare created randomly by the player and not by the author of the video game.”By letter dated May 22, 1987, Shirley B.Wendell of the Examining Division deniedreconsideration. She repeated that thecommon geometric shapes contained inBREAKOUT are not copyrightable, thatadding color did not render the worcopyrightable, and that “[t]he individualtones or sounds are not copyrightable.”By letter dated December 7, 1987, Harriet L.Oler, Chief of the Examining Division,denied further reconsideration andannounced the agency's final action on theclaim. She initially stated that the Register views the work “as a whole” to determinewhether registration is warranted. However,to explain her conclusion that BREAKOUT“does not contain sufficient original visualor musical authorship to warrantregistration,she separately treated thework's several parts:[T]he use of a symbol for a wall drawnin a familiar tile type design is notcopyrightable. The same is true of theimage of a rectangle used in place of a paddle, a circle [sic] for a ball, and acommon four colored stripe embellishingthe wall.The game's sounds, she added, “the three
 tones used before the ball, and the string of double tones used after it,do notconstitute any copyrightable audioauthorship.” She further stated that thearrangement of the “stationary screendisplaycontains no copyrightableauthorship because “so few items” appear onthe screen and “the arrangement is basicallydictated by the functional requirements of this or similar backboard type games.Finally, she noted, Atari was not precluded“from registering a claim in the computer  program.”Atari sought court review of the agency'sfinal action. On cross-motions for summary judgment, the district court concluded thatthe Register reasonably applied controllinglaw to the facts before him. Describing thethree letters from the Copyright Office asthoughtful and well-orchestratedexpositions of the pertinentconsiderations,” the court held that theRegister did not abuse his discretion intreating BREAKOUT as one of the “rare”instances of expressive value so slight as to be insufficient for copyright purposes.
1204, 1206, 1207 (D.D.C.1988).II. The Significance of Registration in thisControversySection 410 of the Copyright Act,17 U.S.C. § 410, provides in part:(a) When, after examination, theRegister of Copyrights determines that, inaccordance with the provisions of this title,the material deposited constitutescopyrightable subject matter and that theother legal and formal requirements of thistitle have been met, the Register shallregister the claim and issue to theapplicant a certificate of registration under the seal of the Copyright Office....(b) In any case in which the Register of Copyrights determines that, in accordancewith the provisions of this title, thematerial deposited does not constitutecopyrightable subject matter or that theclaim is invalid for any other reason, theRegister shall refuse registration and shallnotify the applicant in writing of thereasons for such refusal.If registration is refused, the applicant mayseek immediate judicial review, as Atari didhere, in an action under the AdministrativeProcedure Act,5 U.S.C. §§ 701-706.
17 U.S.C. § 701(d). Alternatively, as noted inthe Register's final decision, determinationof the copyrightability of the work may besought in the context of an infringement suit.Section 411(a) of the Copyright Act,17 U.S.C. § 411(a), permits an infringementsuit, despite the Register's refusal to register a copyright claim, if registrationsubmissions to the Copyright Office were in proper form and the Register is notified sothat he may exercise a right to intervene.
1179 (9th Cir.1983)(holding mandamus nolonger available to compel registration).Registration carries evidentiary weight in aninfringement suit. Registration before or within five years after first publication of thework constitutes prima facie evidence of thevalidity of the copyright; registration after the five-year period may be accorded weight“within the discretion of the court.”17 U.S.C. § 410(c). For Atari, then, registrationof a copyright in BREAKOUT might haveevidentiary force in an action against an

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