copyright protection, audiovisual display, video games, idea/expression dichotomy


Looking to the copyright protection over the audiovisual displays of video games, current precedent—created by extensive litigation in the 1980s over early arcade games—may be a round hole into which the square peg of today’s highly complex video games would have difficulty fitting. This is an issue that has increasing importance as the market for the passive consumption of video game audiovisual displays through tournament streams, walk-throughs, etc., continues to balloon. If courts were to apply precedent from litigation in the 1980s to video games as they exist today, the idea that copyright protection automatically attaches to any and all audiovisual displays generated by a game may not hold true. It is uncertain to what extent the reasoning in early arcade game litigation regarding the issues of authorship, the idea/expression dichotomy, and fixation would yield similar holdings. Moreover, it appears similarly uncertain to what extent a retreat from earlier precedent may impact publishers’ rights in downstream uses of audiovisual displays. Even if potential defendants prevailed under either an idea/expression dichotomy theory or a fixation theory—meaning the copyright does not attach to audiovisuals at the outset—later-fixed audiovisuals may still be protectable. The strongest argument potential defendants have, therefore, is that their interaction with the game precludes copyrightability for the audiovisual displays due to a lack of “original authorship” on the part of the publishers.