New Addition to Professor Ann Bartow Copyright Litigation Collection

Professor Bartow added another more fun items to her copyright litigation collection. Come and see the original discs that were the subject of this litigation.


Micro Star v. FormGen Inc., 154 F.3d 1107 (9th Cir. 1998)


FormGen made a video game that included an editor to let players design and build their  own levels,  and then post those levels on the internet so others could download and play them. FormGen encouraged and enabled people to make levels, and did not consider this fan-created content to be a copyright infringement. The fan-created files did not contain any of the art or images. Those were stored as data files in the main game program. MicroStar collected afan-generated levels, packaged them up, and sold them on CD.

MicroStar filed suit and asked for a declaratory judgment that what they were doing was not copyright infringement. FormGen countersued, claiming that the levels were a derivative work, and that as the copyright holder, only they had the right to license derivative works. 17 U.S.C. §106(2) grants the copyright holder exclusive license to authorize derivative works. Microstar argued that since the fan-generated files could not be used to play the game by themselves, and did not contain any of the art or images from the game, they could not be considered a derivative work.

Microstar pointed to Lewis Galoob Toys, Inc. v. Nintendo of America, Inc. (964 F.2d 965 (9th Cir. 1992)), which held that a doo-dad that let the user cheat at a video game did not create a derivative work because the data that the doo-dad altered was never fixed in a tangible medium, and therefore could not be considered a "work" at all.       17 U.S.C. §102(a) requires that "a work must be fixed in a tangible medium of expression."  The Trial Court came to a mixed conclusion. Both sides appealed. It found that MicroStar's sales of the fan-generated content was not a copyright infringement. However, the Court found that MicroStar's use of the game's characters and screenshots on their CD's packaging was an infringement of FormGen's copyright.

The Ninth Xircuit Court of Appeals found for FormGen. They found that unlike Galoob, the data in this case was definitely fixed. It was burned onto a CD.      The Court found that even though the fan-generated content didn't contain any of FormGen's art or images, it was still a derivative work because it was basically a map for how to get that content. The Court likened it to sheet music, which isn't the music itself, but is detailed instructions on how to make the music.