The PAC-MAN Case - Copyrightable Subject Matter in Games
Headline: On March 2, 1982, the Seventh Circuit Court of Appeals reversed a district court’s denial of a motion for a preliminary injunction brought by plaintiffs Atari, Inc. and Midway Mfg. Co. against defendants North American Philips Consumer Electronics Corp. and Park Television for alleged copyright infringement of plaintiffs’ PAC-MAN game.
Background: Atari’s PAC-MAN is a maze-chase game consisting of a maze, a yellow gobbler character, and four ghosts who roam the maze in pursuit of the gobbler. There are many evenly spaced dots, and some power capsules and fruit along the maze. The player must guide the gobbler through the maze and consume the dots on the way to earn points. You can play a version of PAC-MAN here.
Philips’ K.C. Munchkin was a PAC-MAN clone, though it was not an identical copy. Like PAC-MAN, K.C. Munchkin was a maze-chase game with a gobbler character and 4 ghosts, and the basic gameplay was similar.
Philips pointed to a list of differences between the games, such as variations in the mazes, changes in facial features and colors of the ghosts, and moving dots. The district court agreed, finding that the games were not substantially similar. On appeal, the Seventh Circuit reversed, finding that it was error to focus on slight differences between a protected work and an accused work where the works are substantially similar in other respects.
Holding: The Court overruled the district court, finding that Atari clearly showed a likelihood of success on the merits. To do so, the Court first filtered out unprotectable elements of the games and analyzed the remaining elements for substantial similarity.
First, the Court filtered out the unprotectable idea of PAC-MAN to analyze the protectable expression in the concrete details of the visual presentation. The Court articulated the unprotectable idea as follows:
“A maze-chase game in which the player scores points by guiding a central figure through various passageways of a maze and at the same time avoiding collision with certain opponents or pursuit figures which move independently about the maze. Under certain conditions, the central figure may temporarily become empowered to chase and overtake the opponents, thereby scoring bonus points.”
Second, the Court filtered out unprotectable scènes à faire (generic or stock expression that is necessary to a maze-chase game), which included the following unprotectable elements:
The maze and scoring table, which were standard game devices.
The tunnel exits, which was nothing more than a commonly used “wrap around” concept adapted to a maze-chase game.
The use of dots to provide a means by which a player's performance can be gauged and rewarded with points.
Third, the Court found that PAC-MAN’s remaining protectable expression was substantially similar to that of K.C. Munchkin, including the following:
The gobbler, including the relative size and shape of the body, the V-shaped mouth, its distinctive gobbling action (with appropriate sounds), and the way it disappears upon being captured.
The ghost pursuit characters, including their size, shape, and manner of movement.
The expression of the role reversal process, where the ghosts become vulnerable, turn a different color, reverse direction, move at a slower speed, and flash to warn when role reversal is near an end.
Practical Takeaways: This seminal copyright case in the video game space has two related takeaways. First, while the idea of a game and game mechanics may not be protectable, copyright does protect creative expressive elements of a game if they are not dictated by genre. Second, even though many aspects of game may not be protectable, there still may be copyright infringement where there are many similar protectable elements, even if there are some differences as well.
A copy of the opinion and order in Atari, Inc. v. N. Am. Philips Consumer Elecs. Corp., 672 F.2d 607 (7th Cir. 1982) is located here.
By Jennifer Kelly, the “Chess Master”
By Sean Apple, the “Syborg”