Alex Kozinski

“ Nintendo sued, claiming that when the Game Genie modified the game system’s audiovisual display, it created an infringing derivative work. We rejected this claim because “ [a] derivative work must incorporate a protected work in some concrete or permanent form.” Galoob, 964 F.2d at 967 (internal quotation marks omitted) . The audiovisual displays generated by combining the Nintendo System with the Game Genie were not incorporated in any permanent form; when the game was over, they were gone. Of course, they could be reconstructed, but only if the next player chose to reenter the same codes. ”

“ I FormGen Inc., GT Interactive Software Corp. and Apogee Software, Ltd. (collectively FormGen) made, distributed and own the rights to Duke Nukem 3D (D/N-3D) , an immensely popular (and very cool) computer game. D/N-3D is played from the first-person perspective; the player assumes the personality and point of view of the title character, who is seen on the screen only as a pair of hands and an occasional boot, much as one might see oneself in real life without the aid of a mirror. [1] Players explore a futuristic city infested with evil aliens and other hazards. ”

“ As a preliminary matter, Micro Star asks us to focus on the player’s use of the N/I CD in evaluating the fair use claim, because—according to Micro Star—the player actually creates the derivative work. In Galoob, after we assumed for purposes of argument that the Game Genie did create derivative works, we went on to consider the fair use defense from the player’s point of view. ”

“ Therefore, it claims, nothing of D/N-3D’s is reproduced in the MAP files. In making this argument, Micro Star misconstrues the protected work. The work that Micro Star infringes is the D/N-3D story itself—a beefy commando type named Duke who wanders around post-Apocalypse Los Angeles, shooting Pig Cops with a gun, lobbing hand grenades, searching for medkits and steroids, using a jetpack to leap over obstacles, blowing up gas tanks, avoiding radioactive slime. A copyright owner holds the right to create sequels, see Trust Co. ”

“ See 17 U.S.C. § 204 (a) ; Effects Assocs., Inc. v. Cohen, 908 F.2d 555, 556 (9th Cir. 1990) . A nonexclusive license may, however, be granted orally or implied by conduct. See Effects, 908 F.2d at 558. ”