Intellectual Property, Pages 266–269

Stern Electronics, Inc. v. Kaufman

United States Court of Appeals for the Second Circuit, 1982

Facts:

Plaintiff sold a side-scrolling video game called "Scramble" involving flying a space ship over varying terrain and enemy locations after buying an exclusive sublicense from the game's creator, Konami. Shortly thereafter, defendant Omni began selling a cheaper version of the game with the same title and virtually the same graphics and sounds.

Procedural History:

District court granted a preliminary injunction enjoining Omni from infringing plaintiff's copyright.

Defendant's Argument:

Every playthrough of the game is different. Different things happen depending on the player's input. If no two playthroughs look the same in our game, they could not look the same as plaintiff's.

Issue:

Was Scramble fixed in a tangible medium?

Reasoning:

To generate the pictures and sounds of each playthrough, the game requires code, images, and sounds programmed into its storage. These are fixed in that medium and are protectable.

Holding:

Yes, Scramble was fixed in a tangible medium. Affirmed.


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