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
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
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."