Lewis Galoob Toys, Inc. v. Nintendo
a. Facts: Nintendo sued the maker of Game Genie which allowed the game user to cheat the game. The genie just went between the console and the game cartridge
b. Procedural History: district court declared that D did not violate any of P’s copyrights and dissolving a temporary injunction and denying P’s request for a permanent injunction enjoining D from marketing Game Genie.
c. Rule: a derivative work must incorporate a protected work in some concrete or permanent form
i. The act's definition of derivative work lacks any reference to fixation
ii. It makes no difference that the derivation may not satisfy certain requirements for statutory copyright registration
iii. A derivative work must be fixed to be protected under the act, but not to infringe
d. Reason: the altered displays do not incorporate a portion of a copyrighted work in some concrete or permanent form.
i. The game genie cannot produce an audiovisual display; the underlying display must be produced by a nintendo and game cartridge
ii. The game genie by itself is useless; it can only enhance, and cannot duplicate or recast, a nintendo game's output. It does not contain or produce a nintendo game's output in some concrete or permanent form, nor does it supplant demand for nintendo game cartridge.
e. Held: in holding that the audiovisual displays created by the game genie are not derivative works, we recognize that technology often advances by improvement rather than replacement. District court’s opinion affirmed.
a. Facts: Nintendo sued the maker of Game Genie which allowed the game user to cheat the game. The genie just went between the console and the game cartridge
b. Procedural History: district court declared that D did not violate any of P’s copyrights and dissolving a temporary injunction and denying P’s request for a permanent injunction enjoining D from marketing Game Genie.
c. Rule: a derivative work must incorporate a protected work in some concrete or permanent form
i. The act's definition of derivative work lacks any reference to fixation
ii. It makes no difference that the derivation may not satisfy certain requirements for statutory copyright registration
iii. A derivative work must be fixed to be protected under the act, but not to infringe
d. Reason: the altered displays do not incorporate a portion of a copyrighted work in some concrete or permanent form.
i. The game genie cannot produce an audiovisual display; the underlying display must be produced by a nintendo and game cartridge
ii. The game genie by itself is useless; it can only enhance, and cannot duplicate or recast, a nintendo game's output. It does not contain or produce a nintendo game's output in some concrete or permanent form, nor does it supplant demand for nintendo game cartridge.
e. Held: in holding that the audiovisual displays created by the game genie are not derivative works, we recognize that technology often advances by improvement rather than replacement. District court’s opinion affirmed.