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May 24, 1988

RALPH OMAN, United States Register of Copyrights, Defendant

The opinion of the court was delivered by: PRATT


 The narrow question presented by this action is whether the United States Register of Copyrights ("Register") abused his discretion in denying plaintiff's application to register a claim to copyright in a video game entitled "BREAKOUT." Plaintiff Atari Games Corporation ("Atari") created BREAKOUT in 1975, *fn1" and introduced and began marketing the game the following year with immediate and immense success. More than a decade later, on February 6, 1987, Atari sought registration by the Register of a copyright to BREAKOUT. *fn2" On February 13, 1987, and again upon reconsideration on May 22, 1987, the Copyright Office refused to register the copyright on the basis that the work "did not contain at least a minimum amount of original pictorial or graphic authorship, or authorship in sounds." Feb. 13, 1987 letter at 1, included in Administrative Record. Finally, by letter dated December 7, 1987, the Copyright Office issued its final agency action, again refusing to register the copyright in BREAKOUT.

 Plaintiff filed the instant action on January 6, 1988, challenging the agency's final action. The parties promptly filed cross-motions for summary judgment, which have been fully briefed. In its initial application for copyright, Atari submitted a terse but accurate description of BREAKOUT's operation:

The player commands a paddle which is movable across the screen. A horizontal band or wall formed by layers of bricks (i.e., rectangles) divides the screen above the paddle. A ball bounces back and forth between the wall and the paddle, rebounding off of each and removing a section of the wall each time it is hit by the ball. Each time a section or "brick" is removed the player scores points. When the player misses the ball with the paddle, the ball is replaced.

 Synopsis of Deposit for Copyright Registration at 1. This characterization makes clear that BREAKOUT is a form of ball-and-paddle game, not entirely dissimilar to a solitary ping pong or tennis game. It is the audiovisual display and accompanying sounds of BREAKOUT -- i.e., the "audiovisual work" -- that Atari seeks to have registered for copyright protection.

 There can be no doubt that video games, like other audiovisual works, are entitled to copyright protection provided they satisfy the prerequisites for copyrightability under the Copyright Act ("Act"), 17 U.S.C. § 101 et seq.3 Section 102 of the Act provides for the copyright of "original works of authorship." 17 U.S.C. § 102. This language isolates two watermarks of a copyrightable work: it must be "original" -- i.e., a work of independent creation -- and it must be a "work of authorship" -- i.e., the fruit of artistic expression and intellectual labor. Reader's Digest Assoc. v. Conservative Digest, Inc., 261 U.S. App. D.C. 312, 821 F.2d 800, 806 (D.C. Cir. 1987) (identifying originality and creativity elements of copyrightable materials); Baltimore Orioles, Inc. v. Major League Baseball Players Assoc., 805 F.2d 663, 668 (7th Cir. 1986), cert. denied, 480 U.S. 941, 107 S. Ct. 1593 (1987) (same). There is no dispute in this case, and the Register expressly recognized, that BREAKOUT originated with or was independently created by Atari. May 22, 1987 letter at 2. The question for the Register, then, was whether the video game is a "work of authorship," that is, whether it is the result of the minimally required amount of creative expression.

 The question of whether a particular work reflects a sufficient quantum of creativity to satisfy the copyright laws is not susceptible to bright line rules or broad principles. John Muller & Co., Inc. v. New York Arrows Soccer Team, 802 F.2d 989, 990 (8th Cir. 1986) ("there is no simple way to draw the line between 'some creative authorship' and not enough creative authorship"). It is in part for this reason that the Register is entrusted in the first instance with determining whether a work is copyrightable. Such a decision necessarily requires the exercise of informed discretion, and the Register, in part due to having to make such determinations on a daily basis, is generally recognized to possess considerable expertise over such matters. Norris Industries, Inc. v. International Tel. & Tel. Corp., 696 F.2d 918, 922 (11th Cir.), cert. denied, 464 U.S. 818, 78 L. Ed. 2d 89, 104 S. Ct. 78, 220 U.S.P.Q. (BNA) 385 (1983) (recognizing "considerable expertise of the Register" where determinations at issue "are routinely made by the Register and are unquestionably related to the substantive area of the agency's business"); Esquire, Inc. v. Ringer, 192 U.S. App. D.C. 187, 591 F.2d 796, 801-02 (D.C. Cir. 1978), cert. denied, 440 U.S. 908, 59 L. Ed. 2d 456, 99 S. Ct. 1217, 201 U.S.P.Q. (BNA) 256 (1979) (recognizing certain areas in which the Register "has considerable expertise"); cf. Bouve v. Twentieth Century-Fox Film Corp., 74 App. D.C. 271, 122 F.2d 51, 53 (D.C. Cir. 1941) (Copyright Act "establishes a wide range of selection within which discretion must be exercised by the Register . . ."). For this reason courts accord deference to the Register's decisions to refuse or accede to copyright registration, and overturn such decisions only if they reflect an abuse of discretion. Esquire, 591 F.2d at 805-06; John Muller & Co., 802 F.2d at 990; Norris Industries, 696 F.2d at 922.

 The crux of the Register's *fn4" position is that the audiovisual work presented by Atari "does not contain at least a minimum amount of original pictorial or graphic authorship, or authorship in sounds," and thus does not warrant copyright status. Feb. 13, 1987 letter at 1; see also Dec. 7, 1987 letter at 1 (requiring "some non-trivial amount of creative authorship"); May 22, 1987 letter at 2 ("the present work, although independently created, does not contain enough original authorship to be registered as an audiovisual work"). The letters noted that the BREAKOUT display consists of common geometric shapes, four bands of colored rectangles, and three tones heard when the "ball" strikes various objects on the screen. The Register concluded that these features, whether viewed independently or in terms of "the arrangement of these few items on the screen," did not establish a basis on which to premise copyright registration. Dec. 7, 1987 letter at 2. *fn5" This conclusion rested in part on an interpretation of Copyright Office regulations which preclude copyright registration of "words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring . . . ." 37 C.F.R. § 202.1(a) (1987). Finally, the Register reviewed and distinguished cases referenced by Atari which upheld the copyrightability of other video games. *fn6"

 The Register's analysis and conclusion were well within the bounds of his discretion, and reflected a reasonable application of controlling law and copyright regulations to the facts before him. Courts and commentators alike have recognized that there are instances, albeit rare, in which "admittedly independent efforts are deemed too trivial or insignificant to support copyright." 1 M. Nimmer, Nimmer on Copyright ("Nimmer") § 2.01[B] at 2-13 (1982); see also Magic Marketing, Inc. v. Mailing Services of Pittsburgh, Inc., 634 F. Supp. 769, 772 (W.D. Pa. 1986) (holding that envelopes with lettering "do not exhibit a sufficient degree of creativity to be copyrightable"). It is no less true in the context of video games that a "sequence of images . . . might contain so little in the way of particularized form of 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"). *fn7"

 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][3]; 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). *fn8" 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 ...

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