Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.
964 F.2d 965 (9th Cir. 1992)

  • Galoob made a doo-dad that fit between a Nintendo video game and the game cartridges. It allowed you to cheat.
    • The doo-dad would alter the data coming from the cartridge to give the player more lives or super-strength or whatever.
  • Nintendo sued for copyright infringement.
    • Nintendo argued that the doo-dad made a copy of the data on the cartridge in order to alter it, and then altered it. That constituted a derivative work.
      • 17 U.S.C. 106(2) grants the copyright holder exclusive license to prepare derivative works.
        • It does not define what it means to "prepare" a work.
    • Galoob argued that the data on the doo-dad was only stored temporarily, therefore it was not fixed, and therefore not independently copyrightable. Galoob argued that it couldn't be a derivative work unless it was copyrightable.
      • 17 U.S.C. 102(a) requires that "a work must be fixed in a tangible medium of expression."
  • The Trial Court found for Galoob. Nintendo appealed.
  • The Appellate Court affirmed.
    • The Appellate Court looked to the definitions in 17 U.S.C. 101 and found that a derivative work is a "work" and that a "work" is only "created" once it is "fixed in a tangible medium of expression."
      • But does the term "create" in 101 equal the term "prepare" in 106(2)? This Court assumed it did.
    • The Court found that the doo-dad did not make a fixed copy, therefore it was not derivative work.
      • "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 cartridges."