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 of BREAKOUT 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.”
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 for registration 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]seshapes” constituted 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 work copyrightable, 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