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
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.
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
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.