Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., Nintendo of America, Inc. v. Lewis Galoob Toys, Inc.

964 F.2d 965 60 USLW 2751 , 1992 Copr.L.Dec. P 26,919 , 22 U.S.P.Q.2d 1857 LEWIS GALOOB TOYS, INC., Plaintiff-Appellee, v. NINTENDO OF AMERICA, INC., Defendant-Appellant. NINTENDO OF AMERICA, INC., Plaintiff-Appellant, v. LEWIS GALOOB TOYS, INC., Defendant-Appellee. No. 91-16205. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 12, 1992. Decided May 21, 1992. As Amended Aug. 5, 1992. Thomas G. Gallatin, Jr., Mudge Rose Guthrie Alexander & Ferdon, New York City, for defendant-appellant. Jerome B. Falk, Jr., Howard, Rice, Nemerovski, Canady, Robertson & Falk, San Francisco, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Northern District of California. Before FARRIS and RYMER, Circuit Judges, and KENYON, * District Judge. FARRIS, Circuit Judge: 1 Nintendo of America appeals the district court's judgment following a bench trial (1) declaring that Lewis Galoob Toys' Game Genie does not violate any Nintendo copyrights and dissolving a temporary injunction and (2) denying Nintendo's request for a permanent injunction enjoining Galoob from marketing the Game Genie. Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.,…

Nintendo of America appeals the district court’s judgment following a bench trial (1) declaring that Lewis Galoob Toys’ Game Genie does not violate any Nintendo copyrights and dissolving a temporary injunction and (2) denying Nintendo’s request for a permanent injunction enjoining Galoob from marketing the Game Genie. Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 780 F.Supp. 1283 (N.D.Cal.1991). We have appellate jurisdiction pursuant to 15 U.S.C. § 1121 and 28 U.S.C. §§ 1291 and 1292(a)(1). We affirm.

FACTS

The Nintendo Entertainment System is a home video game system marketed by Nintendo. To use the system, the player inserts a cartridge containing a video game that Nintendo produces or licenses others to produce. By pressing buttons and manipulating a control pad, the player controls one of the game’s characters and progresses through the game. The games are protected as audiovisual works under 17 U.S.C. § 102 (a)(6).

The Game Genie is a device manufactured by Galoob that allows the player to alter up to three features of a Nintendo game. For example, the Game Genie can increase the number of lives of the player’s character, increase the speed at which the character…

concurring in the judgment:

I concur in the judgment for reasons stated by the district court, Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 780 F.Supp. 1283 (N.D.Cal.1991).