Summary of Facts

Plaintiff Namco Co., Inc. has developed and made public in its own name the video game "Pacman" and holds the copyright therefore. Defendants, Suishin Enterprises Co., Inc., Eiraku, and Suishin Co., Inc., made unauthorized copies of "Pacman" video game machines and set them up for customer use in a chain of coffee shops, known as "Miami," operated by defendants in the Tokyo metropolitan area. Plaintiff has filed this suit alleging that "Pacman" is a copyright movie, the screening rights for which were infringed by defendants' action in setting up unauthorized copies of "Pacman" video games machines, and requests damages from defendants.

Gist

Claim allowed.

1) "One type of copyrighted work specified in the Copyright Law is the "movie copyright" (Art. 10, Para. 1.7) and, unlike for other types of copyrighted works, there are specific provisions in the law regarding this type of copyrighted work in which "screening rights" and "distribution rights" are recognized (Art. 26), and such things as reversion of the copyright (Art. 29), and period of protection (Art. 54) are provided for. Included in this "movie copyright," in addition to "movie," in its original meaning, is a "copyright on those items which are identifiable as methods of expressing visual or audio-visual effects resembling the effects of a movie" (Art. 2, Para. 3). .... According to the above defined provisions, in order for something outside of original meaning of movie to fall under the "movie copyright," the following requirements must be met. 1) It must be something which is a method of expressing audio or audio-visual effects resembling the effects of a movie. 2) It must be an identifiable work. 3) Regarding a copyrightable work which is a "copyrighted work," since, again, there are defined provisions (Art. 2, Para. 1.1), the third requirement can be alternatively expressed as follows: 3') It must be something which creatively expresses thoughts and feelings; included in the scope of this is literature, science, art and music. It can be said, then, that the first requirements is that it be a method of expression, the second is that it have a recognizable form, and the third is that it have the required content."

2) "Based on the above interpretation of the Copyright Law, let us examine whether "Pacman" sufficiently meets the requirements of "movie copyright" or not.

(a) Method of Expression - The fact that "Pacman" is a video game which, like television, projects an image using a picture tube, changing frames every 1/60 of a second to show a moving image, satisfies the requirement of method of expression for a copyrighted movie, namely, "method of expressing audio or audio-visual effects resembling the effects of a movie."

(b) Recognizable Form - The structure of video game machines meets the above stated standard and, in the final analysis, the images projected using picture tubes, which projection is accomplished by the division of patterns and letters using a fundamentally binary electrical signal system contained in ROM memory, cannot include patterns or letters which are not contained in the ROM. Attracting images and incorporating images are manifested by reading out according to consecutive CPU the various commands contained in the programs (command-type) stored according to the electrical signal structure of the ROM and, projecting on the picture tube according to these commands, the various bits of data contained in other programs (data-type) stored according to the electrical signal structure of the Rom to produce continuing images resulting in the expression of the entire body. Accordingly, attracting images and incorporating images are expressed as regular confining images projected on the picture tube according to the data released by commands from the command program to the data program and are unaffected by manipulation of the player lever. On the one hand, play images are created in the same manner as attracting images and incorporating images, by the reading out, according to consecutive CPU, of the various commands of the command program; and yet, it is not exactly the reading out of commands; rather, the image changes are taking place according to electrical signals transmitted by the manipulation of the player lever which then cause changes in the order of data read out from the data program. In that regard, the images projected on the picture tube are changed by the manipulation of the player lever. Nonetheless, even if there was absolutely no manipulation of the player lever, the image would continue to be projected on the picture tube the same as always and, theoretically, the changes in the images would continue as if there were manipulation of the lever. Also, no matter the lever manipulation, no matter the image change borne of it, others are created by the program, and accordingly, it is not possible for the player to draw new patterns or letters, rather he is simply limited to making changes in patterns according to sequences already in the data program. ....Accordingly to the above, it can be said that the "Pacman" image produced by movements expressed on a picture tube are fixed according to the shape put out by the electrical signals from within the ROM.

c) Content - The video game, "Pacman," is based on the mental activity of the copyright holders and, as a product borne of that intellectual and cultural mental activity, must be recognized as copyrightable.

... As we recognized above, "Pacman" comes under the movie copyright and, ... according to the provisions of the Copyright Law Articles 15 and 16, the plaintiffs can be recognized as the copyright holders.

... There is no dispute between the parties that the defendants have operated in the metropolitan area several coffee shops known as "Miami," that the defendants were negligent in purchasing the machines which they did not know were unauthorized, that defendant Suishin Enterprises and defendant Eiraku kept at least two authorized "Pacman" video games machines in each of the shops they operated and, during the eight-month period from October 15, 1980 to June 14, 1981, received a profit from those machines of Y2,159,152., and that defendant Suishin, in the same manner, kept at least one unauthorized "Pacman" video game machine in each of the shops it operated and, during the same eight-month period, received a profit from those machines of Y1,079,576. Consequently, according to the provision of the Copyright Law, Art. 114, Para. 1, since it can be estimated that the plaintiffs have been damaged to the extent of all of the above specified profits received by defendants, defendants are obligated to pay to the plaintiffs all of the above specified profits as well as delay damages as prescribed by the Civil Code in an amount equivalent to 5% per annum calculated from June 15, 1981."

(translation by Vicki L. Beyer)

Temple University Japan