## Facts

- A manufacturer marketed an electronic, coin-operated draw-poker video game whose on-screen images and sounds were generated by a computer program stored in ROM chips.
- The game’s cabinet and console had distinctive physical characteristics, including artwork and the placement of the game title.
- The defendant acquired the manufacturer’s game and had an engineer remove the ROMs and copy the program, making only minor modifications.
- The modifications included adding the defendant’s company name to screen displays, changing some on-screen wording, and adding a “Hi-Lo” option and a split-screen mode.
- The competing game retained the same basic structure and operation as the original, with differences described as minor.
- The competing cabinet was alleged to be nearly identical in dimensions, artwork, and title placement, with only slight color differences.
- The manufacturer held federal copyright registrations for both the computer program and the audiovisual work generated during gameplay.
- The manufacturer sued for copyright infringement of the program and audiovisual work and for trade-dress infringement under the Lanham Act based on the cabinet’s overall appearance.

## Issues

1. Whether a copyright in a video game’s audiovisual display extends to the underlying program in ROM to the extent the program embodies protected expression, and whether ROM qualifies as a copy in which the audiovisual work is fixed.
2. Whether copying a copyrighted game and making only minor changes can avoid infringement by constituting a separately copyrightable work.
3. Whether the manufacturer proved protectable trade dress and a likelihood of confusion from defendants’ use of a similar cabinet.

## Decision

- The Fourth Circuit reversed the district court’s denial of relief on the copyright claims and held that defendants infringed the manufacturer’s copyrights.
- The court held that the program stored in ROM constituted a copy in which the audiovisual work was fixed for purposes of copyright protection.
- The court held that the audiovisual copyright protected the audiovisual display from copying and also protected the underlying program to the extent it embodied the game’s expression.
- The court rejected the view that defendants’ minor alterations insulated them from liability; the defendants’ work remained infringing.
- The court left undisturbed the judgment for defendants on the trade-dress claim.

## Legal Principles

- Video game audiovisual displays are protectable audiovisual works under the Copyright Act.
- ROM can qualify as a material object embodying a work, satisfying fixation and constituting a “copy” for copyright purposes.
- Copying a program and audiovisual display and making minor modifications does not avoid infringement; at most it produces an unauthorized derivative work that still infringes the original.
- Copyright protection for software extends to expressive aspects embodied in code, not to abstract ideas or purely functional elements.
- Trade-dress relief under the Lanham Act requires proof of protectable trade dress and likely consumer confusion; failure of proof supports judgment for defendants.

## Conclusion

The Fourth Circuit held that copying a coin-operated video game by duplicating its ROM-resident program and substantially replicating its audiovisual display, with only minor changes, infringes the copyright owner’s rights because the ROM fixes the audiovisual work and the minor additions do not negate appropriation of protected expression; the defendants nonetheless prevailed on the trade-dress claim.


M. Kramer Mfg. Co. v. Andrews, 783 F.2d 421 (4th Cir. 1986)