expression as to be only an abstract idea portrayed in noncopyrightable form." Stern Electronics, Inc. v. Kaufman, 669 F.2d at 857 (dictum). It simply is not the case, in short, that video games are per se copyrightable, or by definition more expressive and creative than other artistic mediums. The Register cited the above-quoted passages, and apparently concluded that BREAKOUT is one of those uncommon instances in which any expressive value contained therein is de minimis, and thus not sufficient for copyright purposes.
This conclusion does not constitute an abuse of discretion, whether BREAKOUT is viewed in a vacuum or in comparison to video games which have been copyrighted. In reaching its conclusion, the Register construed both the Copyright Act, which it is entrusted to administer, and the Act's implementing regulations. In this context judicial review is particularly limited. Esquire, 591 F.2d at 800-02 (according considerable weight to Register's interpretation of copyright implementing regulation); Chemical Mfrs. Assoc. v. N.R.D.C., 470 U.S. 116, 125, 84 L. Ed. 2d 90, 105 S. Ct. 1102 (1985) (judicial review circumscribed when plaintiff challenges agency's construction of a statute it was entrusted to administer). The BREAKOUT display, as noted above, consists of a rectangular "paddle" directing a circular "ball" into colored rectangular "bricks," in addition to audio signals indicating when the ball collides with the other characters. The Register reasonably might have concluded that the only ostensibly creative aspect of BREAKOUT is not the components themselves, nor their arrangement, but rather the very idea of the paddle-and-ball game which BREAKOUT represents in video form. Perhaps the most hallowed principle of copyright law, however, is that copyright protection extends not to ideas, but to expressions of ideas. 17 U.S.C. § 102(b); 3 Nimmer § 13.03[E], at 13-51 to 13-52 (stating this as "an axiom of copyright law"); Mazer v. Stein, 347 U.S. 201, 217, 98 L. Ed. 630, 74 S. Ct. 460 (1954); Baker v. Selden, 101 U.S. 99, 102-03, 25 L. Ed. 841 (1879). Thus, copyright protection does not extend to games themselves. Atari, Inc., 672 F.2d at 615; Anti-Monopoly, Inc. v. General Mills Fun Group, 611 F.2d 296, 300 n.1 (9th Cir. 1979).
BREAKOUT can be understood, and apparently was understood by the Register, as little more than a stock description of a paddle-and-ball game, inseparable in any principled manner from the idea which it embodies. This is quite distinct from video games which feature expressive and artistically creative renditions of an idea, and which thereby merit copyright protection. See Atari, 672 F.2d at 617 (recognizing copyright status of "PAC-MAN" video display because "the expression of the central figure as a 'gobbler' and the pursuit figures as 'ghost monsters' distinguishes PAC-MAN from conceptually similar video games"); Universal City Studios, Inc. v. Nintendo Co., 615 F. Supp. 838, 859-60 (S.D.N.Y. 1985) ("the interaction of the characters, obstacles, background, and music in [the video game] Donkey Kong are [sic] arbitrary, fanciful, and sufficiently distinctive" so as to warrant copyright protection against imitators); Atari, 547 F. Supp. at 229 (distinguishing generic idea of space-attack game from creative expression portrayed in video game "Asteroids").
In short, the Register, drawing upon his expertise and experience in this field, reasonably concluded that BREAKOUT lacked the "minimal artistic expression" necessary to render copyrightable the design and configuration of a video game display. 1 Nimmer § 2.18[H]; Universal City Studios, 615 F. Supp. at 858. That BREAKOUT was from its introduction popular and profitable is quite beside the point, plaintiff's protests notwithstanding. The copyrightability of a work is defined not by its financial returns or public favor, but rather by its originality and creativity. Cf. Financial Information, Inc. v. Moody's Investors Service, Inc., 808 F.2d 204, 207 (2d Cir. 1986), cert. denied, 484 U.S. 820, 108 S. Ct. 79, 98 L. Ed. 2d 42 (1987) (copyrightability not defined by "sweat of author's brow," but rather by result of such efforts); Gardenia Flowers, Inc. v. Joseph Markovits, Inc., 280 F. Supp. 776 (S.D.N.Y. 1968).
Moreover, the court has no occasion to consider whether on the facts presented the Register or a court might just as reasonably have reached another conclusion. The court may not substitute its judgment for that of the Register, but must instead subject the Register's determination to an "abuse of discretion" inquiry. We are satisfied, upon independent evaluation of the record herein, that the Register's action was an appropriate exercise of his discretion, and well within the scope of his duties.
The issue of copyrightability is typically susceptible to resolution on summary judgment. Magic Marketing, 634 F. Supp. at 771; Carol Barnhart, Inc. v. Economy Cover Corp., 773 F.2d 411 (2d Cir. 1985). In this case there are no material issues of disputed fact, and judgment may be entered as a matter of law.
Accordingly, it is by the court this 24th day of May, 1988
ORDERED that plaintiff's motion for summary judgment is hereby denied, and it is
ORDERED that defendant's motion for summary judgment is hereby granted, and it is
ORDERED that judgment is hereby awarded in favor of defendant, and it is
FURTHER ORDERED that this case shall stand dismissed.