United States: Arcade Game Maker Entitled to no Protection from Competitor’s Intentional Copying

The U.S. Court of Appeals for the Seventh Circuit has affirmed the denial of a preliminary injunction in a copyright case even as it observed that the defendant clearly set out to copy the plaintiff’s product. Incredible Technologies, Inc. v. Virtual Technologies, Inc., 400 F.3d 1007 (Seventh Cir. Mar. 15, 2005) (Evans, J.). The Court indicated success on the merits was unlikely because the plaintiff was seeking to protect generic and functional features of its product not protected under the copyright laws.

Incredible Technologies, makers of the Golden Tee video arcade game, sued Virtual Technologies (d/b/a Global VR) for copyright infringement over its competing video arcade game, PGA Golf Tour. Even though the Court found PGA Golf Tour uses the same control panel and "trackball" system "so that a Golden Tee player could play the new game with no appreciable leaning curve," it affirmed the denial of the injunction on the grounds that "ideas—as opposed to their expression—are not eligible for copyright protection," and, therefore, "protection does not extend to the game itself." The court held that many of the elements of the Golden Tee video imagery were common to the game of golf and, therefore, lacked sufficient creativity under the scenes a faire doctrine to warrant copyright protection except against "virtually identical copying." Further, Golden Tee’s trackball system and control panel were functional in nature and, therefore, accorded only limited copyright protection. The Court noted, "an item may be entirely original, but if the novel elements are functional, the item cannot be copyrighted."

The Court went on to observe that the trackball system may have been eligible for patent protection, but without such protection, the most significant and similar elements of the two games were not at issue in this case.

Practice Note: As it is difficult to predict the manner in which a client’s intellectual property may be infringed, clients should consider investing in various ways to protect this property, including patent, copyright and trademark/trade dress protection.

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