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 a whole bunch of these fan-generated levels, packaged them up, and sold them on CD. MicroStar went to court 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.
    • The Trial Court 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 Appellate Court found for FormGen.
    • The Appellate Court 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.