Lawyer Article

Published in the May 3, 2005 issue of the Southeast Tech Wire

A recent bar room fight has spilled over into the copyright courts. The battle over video golf games placed in bars provides the latest update to the increasingly important copyright and trade dress rules covering video gaming.

Golden Tee golf is made by Incredible Technologies (“Incredible”) and has become one of the most successful coin operated games of all time. With machines placed in taverns and restaurants since 1989, Incredible holds copyrights on various versions of the game. Virtual Technologies (“Virtual”) created PGA Tour Golf to compete in the same market. In 2003, Incredible sued Virtual, claiming that PGA Tour Golf infringed on the copyrights and trade dress of Golden Tee.

While the two games were not identical – Golden Tee was based on generic golfers on fantasy courses, while PGA Tour Golf used figures representing real PGA tour professionals on simulations of existing famous golf courses – they did contain the same controlling function, a large track ball that operated in both directions (backwards for a back swing, and forward for the ball contact). Among other claims, Incredible alleged that the Virtual game’s use of the track ball and instructions for use of the track ball infringed on Incredible’s copyright. Incredible requested an injunction, asking the court to immediately stop the use of PGA Tour Golf.

The Federal District Court in Illinois denied Incredible’s request, holding that Incredible was unlikely to win a case based on Virtual’s alleged copying of a functional feature. The Seventh Circuit court of Appeals agreed. Only creative material is protectable by copyright; purely functional matter is not. The Court decisions hinged on whether the Court findings that Incredible’s system was only copied in ways that were not protectable under copyright.

The court held that Incredible’s tools and instructions “on its control panel are not dictated by creativity, but rather are simple explanations of the trackball system; at best, they are entitled to protection only from virtually identical copying.” In addition, the Seventh Circuit found that Incredible’s “video displays contain may common aspects of the game of golf” and Incredible’s “trade dress is functional because something similar is essential to the use and play of the video game.”

The Court explained that “Functional features are generally within the domain of the patent laws”, and therefore useful articles and functional elements are excluded from copyright protection. So the trackball system was not subject to copyright protection, and the instructions on how to use the trackball were merely “utilitarian explanations of that system and are not sufficiently original or creative to merit copyright protection.”

Furthermore, because golf is not a purely fanciful pursuit, there are certain rules and actions that must apply if you are simulating the game of golf. “In presenting a realistic video game, one would, by definition, need golf courses, clubs, a selection menu, a golfer, a wind meter, etc.” The Court compare the golf games to earlier cases where the underlying issue was karate-based fighting games. These earlier case held that the basic moves and kicks of karate are not protectable under copyright, but more fanciful moves (like shooting fire from a character’s hands) may be protected.

As Atari demonstrated in early Pac-Man litigation, protecting a lucrative video game from close competition is difficult. Protecting a game based on a real-life activity is even harder. Copyright may not protect all the elements that make a game successful.

Ted Claypoole is a member of Womble Carlyle's Intellectual Property Practice Group in the Firm's Charlotte office.