Scramble (arcade) 1981
First forced Side-scrolling game (screen is moving independently), first diagonally scrolling game , first scrolling game to offer multiple, distinct
Arcade system: Konami Scramble
"Second Circuit" January 20, 1982
Konami wrote the video game ‘Scramble’ and registered it as an audiovisual (copyrighting the display on the screen) work rather than a literary work (which would have copyrighted the code itself).
Stern Electronics obtained the exclusive right to distribute Konami’s arcade game ‘Scramble’ in North and South America in 1981, and began selling Scramble arcade cabinets (which included the game software) in March 1981.
In April 1981 Omni Software began selling ‘Scramble 2’ that had substantial similarities both in its graphics and gameplay. The computer code of ‘Scramble (1)’ was not copied.
Stern sued Omni, as well as its officer _ Kaufman, for infringing the audiovisual material within Scramble.
Omni contend[ed] that Konami is not entitled to secure a copyright in the sights and sounds of its “Scramble” game because the audiovisual work is neither “fixed in any tangible medium of expression” nor “original” within the meaning of § 102(a). Both contentions arise from the fact that the sequence of some of the images appearing on the screen during each play of the game will vary depending upon the actions taken by the player. For example, if he fails to avoid enemy fire, his spaceship will be destroyed; if he fails to destroy enough fuel depots, his own fuel supply will run out, and his spaceship will crash; if he succeeds in destroying missile sites and enemy planes, those images will disappear from the screen; and the precise course travelled by his spaceship will depend upon his adjustment of the craft’s altitude and velocity.
The PROM (the memory storage device in arcade cabinets at the time) stores the instructions and data from a computer program in such a way that when electric current passes through the circuitry, the interaction of the program stored in the PROM with the other components of the game produces the sights and sounds of the audiovisual display that the player sees and hears. The memory devices determine not only the appearance and movement of the images but also the variations in movement in response to the player’s operation of the hand controls.
Are ‘fixed copies’ Made of the audiovisual content of Scramble, such that it may be registered as an audiovisual work?
The Act defines “copies” as “material objects … in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device” and specifies that a work is “fixed” when “its embodiment in a copy … is sufficiently permanent or stable to permit it to be
perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” 17 U.S.C.App. § 101. The audiovisual work is permanently embodied in a material object, the
memory devices, from which it can be perceived with the aid of the other components of the game.
No doubt the entire sequence of all the sights and sounds of the game are different each time the game is played, depending upon the route and speed the player selects for his spaceship and the timing and accuracy of his release of his craft’s bombs and lasers. Nevertheless, many aspects of the sights and the sequence of their appearance remain constant during each play of the game. These include the appearance (shape, color, and size) of the player’s spaceship, the enemy craft, the ground missile bases and fuel depots, and the terrain over which (and beneath which) the player’s ship flies, as well as the sequence in which the missile bases, fuel depots, and terrain appears. Also constant are the sounds heard whenever the player successfully destroys an enemy craft or installation or fails to avoid an enemy missile or laser. It is true, as appellants contend, that some of these sights and sounds will not be seen and heard during each play of the game in the event that the player’s spaceship is destroyed before the entire course is traversed. But the images remain fixed, capable of being seen and heard each time a player succeeds in keeping his spaceship aloft long enough to permit the appearances of all the images and sounds of a complete play of the game. The repetitive sequence of a substantial portion of the sights and sounds of the game qualifies for copyright protection as an audiovisual work.
Is ‘Scramble’ (as an audiovisual work) sufficiently original to receive protection
[Defendants] claim that the work lacks originality proceeds along two lines. Repeating their attack on fixation, they assert that each play of the game is an original work because of the player’s participation. The videotape of a particular play of the game, they assert, secured protection only for that one “original” display. However, the repeated appearance of the same sequence of numerous sights and sounds in each play of the game defeats this branch of the argument. Attacking from the opposite flank, appellants contend that the audiovisual display contains no originality because all of its reappearing features are determined by the previously created computer program.
This argument is also without merit. The visual and aural features of the audiovisual display are plainly original variations sufficient to render the display copyrightable even though the
underlying written program has an independent existence and is itself eligible for copyright. Nor is copyright defeated because the audiovisual work and the computer program are both embodied in
the same components of the game. The same thing occurs when an audio tape embodies both a musical composition and a sound recording. Moreover, the argument overlooks the sequence of the creative
process. Someone first conceived what the audiovisual display would look like and sound like. Originality occurred at that point. Then the program was written. Finally, the program was imprinted
into the memory devices so that, in operation with the components of the game, the sights and sounds could be seen and heard. The resulting display satisfies the requirement of an original
We need not decide at what point the repeating sequence of images would form too insubstantial a portion of an entire display to warrant a copyright, nor the somewhat related issue of whether a sequence of images (e.g., a spaceship shooting down an attacking plane) might contain so little in the way of particularized form of expression as to be only an abstract idea portrayed in noncopyrightable form. ssessing the entire effect of the game as it appears and sounds, we conclude that its repetitive sequence of images is copyrightable as an audiovisual display.
1) First Side-scrolling game is Defender (1980).
2) Remake on CDI console was canceled.
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