United Kingdom
Spelling Goldberg Productions Inc v BPC Publishing Ltd [1981] RPC 283
United States
Midway Mfg Co v Arctic International Inc [1983] 704 F.2d 1009
Midway Mfg Co v Dirkschneider [1981] 543 F.Supp 466
Stern Electronics Inc v Kaufman [1982] 669 F.2d 852
WGN Continental Broadcasting Co et al v United Video Inc 693 F.2d 622
Williams Electronics Inc v Arctic International Inc 215 USPQ 405
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Judgment
HARMS JA
Do video games enjoy copyright protection as "cinematograph films"? This question was answered in the affirmative
in the court below by Hartzenberg J (see Nintendo Co Ltd v Golden China TV Game Centre & Others 1995 (1) SA 229
(T)). In consequence he issued an interdict (at 250F251A) with costs against the appellants. The successful
applicant and present respondent, Nintendo Co Ltd ("Nintendo"), is the alleged owner of the copyright in about
forty video games listed in his judgment (at 231CE). With Hartzenberg J's leave the appellants appeal against the
order issued.
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Nintendo is a Japanese company and claims to be the largest company in the world that creates, manufactures and
distributes video games. The appellants are local entities and fall into two classes: four are importers and
wholesale distributors of video games; the others are retailers who sell, let or expose them for hire by way of
trade.
Infringing video games were imported from Taiwan from undisclosed sources and unknown manufacturers. It is
common cause that these video games are copies of the video games in which Nintendo claims copyright. The
finding of the court a quo (at 247F249B) that the appellants had the necessary "guilty"
Page 669 of [1996] 4 All SA 667 (A)
knowledge referred to in section 23(2) of the Copyright Act 98 of 1978 (the "Act") in importing and dealing with
these games is not in dispute. It follows that, provided copyright subsists in these video games, the dealings of the
appellants with these video games were acts of infringement.
Video Games and their Development
A video game is, as its name implies, a game played on a video screen. An apparatus containing integrated circuits
(usually two microchips) is connected to it. When the machine is in operation, a visual display appears on the
screen. The display has the general appearance of an animated cartoon strip, save that the game player is able, up
to a point, to control the game sequence with a control mechanism. In other words, the game sequence is not
finitely fixed. Carr & Arnold Computer Software: Legal Protection in the United Kingdom, 2nd ed, at 124, give this useful
description (underlining added):
"A computer game normally consists of an 'attract' mode and 'play' mode. In the attract mode, visual images appear in a
preordained sequence, which explain the operation of the game to the player. In the play mode, the sequence of images on
the VDU is determined, within limits dictated by the program, by the intervention of the player."
According to Stern Electronics Inc v Kaufman [1982] 669 F.2d 852 at 853 video games "can roughly be described as
computers programmed to create on a television screen cartoons in which some of the action is controlled by the
player". And "[i]n the play mode, some of the playing symbols or images on the screen are responsive to operation
of the player control panel, and others move in a predetermined sequence and interact with the playercontrolled
images in a preset manner" (Midway Mfg Co v Dirkschneider [1981] 543 F.Supp 466 at 473). (I use these quotations
as a convenient way of summarising the evidence and the demonstration of a video game presented to us during
argument.)
The creation of a video game goes through several stages. After the determination of the basic concept and its
evaluation, the game is designed and developed. This requires the drawing of the visual aspects of the game,
namely, game characters, backgrounds and other game items. The screen text and sound effects are prepared. So,
too, the game's play sequence it defines, in an unencoded form, the content
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and story of each game and its play sequence by indicating how the various component works are to be integrated
in a sequential progression to constitute a game.
Once this stage is reached, the video game is programmed. That involves the writing of a computer program for