Copyright Infringement Established By Showing Creators Of Substantially Similar Work Had Direct Access To The Original

Video Game Law Blog

June 20, 1997

(This is an archived case summary.)

In this 1997 Pennsylvania case, the plaintiff, who had created an unpublished manuscript called “Awesome Possum,” brought a copyright infringement action against Time Warner Interactive, Inc., Atari Games Corp. and Sega of America Inc., for the video game and accompanying comic book, “Awesome Possum Kicks Dr. Machino's Butt.” The defendants claimed their products were independently created, and that there was no evidence they had had access to the plaintiff's manuscript, and made an application asking for summary judgment in their favor.

The court held that a plaintiff can demonstrate a defendant has had access to its work in one of three ways, by showing
1. The defendant had direct access to the plaintiff's work;
2. The defendant had access to the plaintiff's work through a third party; or
3. There are such striking similarities between the works that there is “no reasonable way that the defendant could have arrived at the end product without copying the plaintiff's work.

The defendants gave strong evidence that they had been creating an “Awesome Possum” game prior to the plaintiff beginning his work, so there was no claim available against the video game for copyright infringement. The plaintiff argued that the defendants had copied his manuscript in their comic book, which was included in the video game's instruction manual. The narrow issue left to resolve was whether there was sufficient evidence to support a claim that the defendants had copied the plaintiff's story in their comic book. This could be established by demonstrating that the defendant had had access to the plaintiff's material and that the work was substantially similar to the plaintiffs'.

Although the plaintiff argued that the defendants could have received copies of his manuscript from the U.S. Copyright Office or Library of Congress, the court found that the plaintiff had to show that this access was reasonably possible. It could not be the product of speculation or conjecture. There was absolutely no evidence the defendants had direct access to the plaintiff's work. A comparison of the plaintiff and defendant's works showed that there were no similarities so substantial that a juror could reasonably infer that the defendants had copied the plaintiff's work.

Roginski v. Time Warner Interactive, Inc.
1997, US Dist. Ct., MD Penn.
967 F. Supp. 821
Keyword: copyright – Awesome Possum – access to work
Summary by: Arsen Krekovic