Micro Star, Inc. v. Formgen, Inc., 154 F.3d 1107 (1998) p.522

SUBJECT

derivative works: video game levels

FACTS

Duke Nukem. Users could create their own levels. Microstar downloaded 300 user created levels from the Internet, and put them on CD and started selling them commercially.

PROCEDURE

Duke Nukem tried to get a preliminary injunction to stop them from putting the levels on CD and selling them.q

ISSUE

Whether the levels are derivative works that infringe Duke Nukem's copyright. Whether an exact, down to the last detail, description of an audiovisual display counts as a concrete or permanent form.

RULE

A derivative work must assume a concrete or permanent form.

HOLDING

The CD is a derivative work that infringed Duke Nukem's copyright.

RATIONAL

Court used Galoob case as precedence. The levels are concrete and permanent. In Galoob there was not a derivative work because it was not concrete or permanent form. Here, the CD is concrete and permanent.

Created on: Thursday, October 07, 1999 at 19:02:37 (PDT)