Copyright has come a long way since Congress passed the first U.S. copyright law in 1790. That law was limited in scope, protecting just books, maps, and charts, but today’s copyright law protects a wide variety of creative works, from books and art to movies and music to computer programs, video games, and more. On this National Video Games Day, let’s take a look at how copyright and video games intersect and learn more about two of the video games featured in the Copyright Office’s new exhibit Find Yourself in Copyright.
Video games became commercially popular in the early 1970s with the release of the first arcade video game Computer Space in 1971, followed by Pong in 1972. The industry grew from there, and with new technology, video games moved from the arcade to the living room, and today, they can be played anywhere, especially if you have an electronic device.
Regardless of where or on what device they’re played, copyright law protects video games from the moment they are fixed in a tangible form of expression. Video games generally contain two copyright-protected components: the audiovisual material displayed while the game is being played and the computer program that runs the game. Additionally, audio elements, which are one aspect of the audiovisual material, might include an original music soundtrack, with or without lyrics. All components can be registered with the Copyright Office, and if all components are owned by the same party, they should be registered together on one application (see section 807.7(A) of the Office’s Compendium for more information on registering video games.).
One of the first known copyright registrations for a video game was in 1978, when copyright owner Lawrence D. Rosenthal registered his computer program for the 1977 video game Space War. Another early video game registration is for the arcade game Berzerk, which copyright owner Stern Electronics registered with the Office as an audiovisual work in 1980.
The copyright history for the 1976 arcade game Breakout is an interesting one. Designed by Steve Wozniak, Nolan Bushnell, and Steve Bristow and published by Atari, the game simulated a paddle hitting a ball to knock out rows of colorful bricks. As copyright protection for video games in the United States became more recognized in the early 1980s, and as other similar video games were developed, Atari submitted an application for copyright registration in 1987 to protect their work.
The Copyright Office, however, refused registration for Breakout, determining the “simple geometric shapes and coloring” that made up the visual aspects of the game lacked sufficient creative authorship. Atari disagreed with the analysis of Breakout’s graphic elements and, in 1988, sued the Office in federal court. The case made its way to the U.S. Court of Appeals for the District of Columbia, where Judge Ruth Bader Ginsburg found that the Office needed to consider the game’s elements as a whole when determining whether the work was sufficiently creative. Under the standards provided by the court, the Office reconsidered its decision and approved registration for the game. The case reinforced the principle that a work only needs a minimal degree of creativity for copyright to protect it.
The copyright record for the Mario Bros. franchise highlights just how far-reaching and economically successful creative works can become. Designed by Shigeru Miyamoto and Gunpei Yokoi and published by Nintendo, Mario Bros. was a 1983 arcade game that followed Italian plumbers Mario and Luigi as they explored sewers to defeat their enemies. It was the first game of the franchise and was registered for copyright on July 19, 1983. Shortly after, on August 30, the Office also registered a Mario Bros. video game played on Nintendo’s Game & Watch system, which is featured in the Office’s exhibit. Interestingly, the very first registration on file for the franchise is the derivative graphic art used on the Game & Watch packaging.
Since its debut, Mario Bros. has generated a multitude of derivative works, including sequels for multiple gaming platforms, such as Super Mario Bros. for Nintendo’s home video game console; television series; movies; books; coloring books; music; and other merchandise. One of those coloring books can also be found in the Office’s exhibit. Many of these derivative works can be traced in the Copyright Office Public Records System, and, with more than 450 records connected to the keyword “Mario Bros,”—the most recent from June 2022—the franchise shows no sign of stopping.
Find Yourself in Copyright explores how U.S. copyright law has evolved and how the millions of copyright claims registered with the Office illustrate the varied nature of original works. Once the Library of Congress’s Madison Building fully opens to the public, you can visit the exhibit on the fourth floor. In the meantime, you can explore the exhibit’s companion website.