The case you are looking for is Allen v. Academic Games League of
America, Inc., 89 F.3d 614 (9th Cir. 1996). I've not Shepardized it,
but the case held for the defendant in a copyright infringement case
based on claim of public performance at a tournament. Surprisingly,
the court seems to suggest that because of the nature of games, it's
hard to infringe the right of public performance, but in any event,
fair use would prevail under those facts. In relevant part:
Allen maintains that the language of Section 106(4) precludes AGLOA
from conducting their national
tournament because it constitutes a public performance of his
protected literary works, the subject
copyrighted games. Allen contends that a purchaser of a board game
only obtains the right to play
the board game in settings that are not "public" because playing or
performing the games publicly is
a right held exclusively by the copyright holder under § 106(4).
However, HN3 the interpretation of
"play," as used to define "perform" in § 101 of the Copyright Act,
has generally been limited to
instances of playing music or records. See Polygram Intern. Pub.,
Inc. v. Nevada/TIG, Inc., 855 F.
Supp. 1314, 1321 (D. Mass. 1994); Hickory Grove Music v. Andrew
Andrews, 749 F. Supp. 1031,
1036 (D. Mont. 1990), but cf. Red Baron-Franklin Park, Inc. v. Taito
Corp., 883 F.2d 275, 278-79
(4th Cir. 1989), cert. denied, 493 U.S. 1058, 107 L. Ed. 2d 952, 110
S. Ct. 869 (1990), (holding that
a video arcade owner's use of copyrighted circuit boards in coin-
operated video machines available to
the public for a fee constituted public performance of the
copyrighted work under § 106(4)). The
term "play" has [**7] not been extended to the playing of games. To
do so would mean
interpreting the Copyright Act in a manner that would allow the owner
of a copyright in a game to
control when and where purchasers of games may play the games and
this court will not place such
an undue restraint on consumers.
Whether privately in one's home or publicly in a park, it is
understood that games are meant to be
"played." In this situation, the games are being played by students
who come together for the
purpose of friendly, [*617] academic competition. There is no
indication that this nonprofit
corporation, AGLOA, and the individual respondents are making the
subject games available to the
public for a fee. The students, schools, and school districts use
their own games, purchased from
Allen, in the tournaments, and respondents are merely organizers of
this event. Moreover, AGLOA's
tournaments are limited to students who participated in regional
competitions which also involved
the playing of Allen's games.
Even if the playing of games could constitute a performance, we would
have to recognize the
applicability of the fair use doctrine under Section 107 of the
Copyright Act. HN4 This section allows
the fair use of [**8] a copyrighted work in such instances as for
nonprofit educational purposes
and where the effect of the use upon the potential market for or
value of the protected work is
limited. As indicated above, AGLOA tournaments are held not for
profit, but for encouraging
education among young students. The potential market for the subject
games has in all likelihood
increased because participants of the AGLOA tournament have had to
purchase Allen's games.
Analysis of other factors involved in § 107 leads this court to
conclude that the application of the fair
use doctrine in this case is clearly appropriate.
Good luck.
John
On Dec 11, 2006, at 5:35 PM, Judy J. Dehle wrote:
> I would also love to hear any advice on this issue. I haven’t seen
> anywhere you can purchase PPR for games or gaming parties. I work
> at a college and students wish to have DDR parties and other gaming
> events. In the past, I have read the backs of game boxes, emailed
> game companies, read over their websites and surfed the internet
> looking for advice without any results, yeah or nay. I have also
> looked to Kenneth Crews books for advice. I have told the students
> no without PPR which would technically also mean that they really
> shouldn’t be gaming in their dorm lounges either. The students
> point out that hotels have gaming parties all of the time, some
> hosted by gaming companies such as EA and some not, but all largely
> advertised although most don’t charge in hopes that you will rent a
> room for the night. Apparently they don’t get that gamers are sleep
> deprived. Some charge a catering fee.
>
>
>
> Judy Dehle
>
> Manager, ITMS
>
> "A truly great book should be read in youth, again in maturity and
> once more in old age, as a fine building should be seen by morning
> light, at noon and by moonlight." --Robertson Davies
>
> From: CNI-COPYRIGHT -- Copyright & Intellectual Property
> [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Laura Jewell
> Sent: Thursday, December 07, 2006 9:50 AM
> To: CNI-COPYRIGHT -- Copyright & Intellectual Property
> Subject: [CNI-(C)] video games -- public performance?
>
>
>
> Hello all,
>
> I am a youth services librarian at a public library. We’re
> interested in hosting video game tournaments in the library, but
> are concerned about public performance restrictions. On one hand,
> it seems that the games are intended to be played in groups, on the
> other… well, we want to be safe. Can you give any guidance?
>
>
>
> Thanks in advance.
>
> Laura
>
>
Received on Tue Dec 12 2006 - 04:25:45 GMT
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