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Philip Ahn v. Midway Manufacturing, et al.

Civ. No. 95C0719 (D.Ill., May 28, 1997)

Plaintiffs' images and movements were utilized by defendants as models in their creation of software for defendants' Mortal Kombat games. These images, videotaped, were digitalized by defendants and transformed into cartoon-like images, which in turn became part of the software defendants created. At the time those images were videotaped, plaintiffs signed general releases, which granted defendants sole ownership of any copyrights in these images and gave defendants rights to use such images in their game.

Plaintiffs claimed, inter alia, that such use of their images violated their common law right of publicity. Plaintiffs further claimed that they were joint authors of the Mortal Kombat source code under the Copyright Act. The Court rejected these claims, and granted defendants summary judgment dismissing plaintiffs' complaint.

The Court held that plaintiffs' common law right of publicity claims were preempted by the Federal Copyright Act.

The Court also held that plaintiffs were not joint authors of the Mortal Kombat software under the Copyright Act. To be a joint author, one must be involved in transforming an idea into a fixed tangible expression. Though plaintiffs did contribute their images to the software, these images were selected and arranged by defendants who were also responsible for transforming them into source code. As a result, held the court, plaintiffs did not contribute to the transcription into fixed tangible expression of the images appearing in the Mortal Kombat software. Said the Court:

Midway's agents had the final authority to decide on the selection of movement and poses that would be recorded during the videotaping sessions as well as the authority to decide which frames of the videotape and in what manner and order the frames would be incorporated into the computer program that drives the game.

Indeed, Midway alone decided which portions of plaintiffs' "performances" to digitalize and alone transformed the video images into the cartoon-like images in the game. It is apparent to the court, in viewing videotapes of the actual games, that the superhuman gyrations and leaps high into the air of the characters, including plaintiffs' characters, are fanciful products of the imaginations of the creators of the source codes -- much like the playwright's penmanship in Erickson. To be sure, according to their testimony, plaintiffs contributed their images and movements to the creation of the games, but, like the actors in Erickson, that contribution was transitory.

It was Midway alone that translated the ideas "into a fixed, tangible expression entitled to copyright protection." Erickson, 12 F.3d at 1071.

Plaintiffs' claims of joint authorship were also barred by the general release plaintiffs had executed, making "Midway the sole and exclusive owner of all plaintiffs' copyrightable expression in connection with the coin-operated arcade games...".

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