Video Game Law Blog

January 02, 1998

(This is an archived case summary.)

Duke Nukem 3-D (DN 3-D) was shipped with a Build Editor which allowed fans to create their own levels for DN 3-D. Players were encouraged to build their own levels and to share them with other players. These levels were saved as .MAP files which, with references to the art databases of DN 3-D, allowed the recreation of user created levels with the use of any copy of DN 3-D. The DN 3-D licence agreement however, specifically forbade users from selling the levels they created. Micro Star downloaded over 300 levels from sites across the internet and marketed these levels as a CD entitled “Nuke It”. “Nuke It” was packaged in a box containing screen shots of the new levels.

The owner of the rights to Duke Nukem 3-D, FormGen, brought an action alleging Micro Star was infringing the copyright on those rights by selling derivate works. This argument was based on the fact that the MAP files ran only in conjunction with the DN 3-D engine and all of the audio/visuals were extracted from the DN 3-D art databases. FormGen also sought a preliminary injunction to block the use of the screen shots on the “Nuke It” packaging. The district court rejected the claim for copyright infringement ruling that the levels were not derivative works. It did however grant a preliminary injunction barring Micro Star from using the screenshots and dismissing the fair use defence that Micro Star raised.

Both parties appealed this decision. FormGen appealed the ruling that MAP files were not derivative works. Micro Star argued that the audio/visuals were not incorporated into a “concrete” form and therefore could not be derivative works. The court sided with FormGen and dismissed Micro Star's arguments. The MAP files were incorporated into a concrete form when they were burned on to the “Nuke It” CD.
The court also held that the files were obviously similar to DN 3-D since they were entirely generated by the DN 3-D engine and databases. Given its “concrete form” and similarity, the MAP files were held to be derivative works. Having found that the MAP files were derivative works, the court granted an injunction barring the production and distribution of “Nuke It”. Of the four factors considered, the determining factor appears to have been the fact that “Nuke It” impacted the potential market for DN 3-D sequels thereby reducing FormGen's ability to capitalize on derivate works of its own.

The court also upheld the district courts finding that use of screen shots from DN 3-D to market a product that competes directly with DN 3-D was not acceptable as a “fair use” of copyrighted material.

Micro Star v. FormGen, Inc.
1998, US Ct. of Appeals, 9th Cir.
154 F. 3d 1107
Keywords: copyright – derivative works – Duke Nukem 3-D – player-created content
Summary by: Adam Nott