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MICRO STAR v FORMGEN INC 154 F 3d 1107 9th Cir 1998 KOZINSKI Circuit Judge Duke Nukem routinely vanquishes Octabrain and the Protozoid Slimer But what about the dreaded Micro Star I FormGen Inc GT Interactive Software Corp and Apogee Software Ltd collectively FormGen made distributed and own the rights to Duke Nukem 3D D N 3D an immensely popular and very cool computer game D N 3D is played from the first person perspective the player assumes the personality and point of view of the title character who is seen on the screen only as a pair of hands and an occasional boot much as one might see oneself in real life without the aid of a mirror 1 Players explore a futuristic city infested with evil aliens and other hazards The goal is to zap them before they zap you while searching for the hidden passage to the next level The basic game comes with twenty nine levels each with a different combination of scenery aliens and other challenges The game also includes a Build Editor a utility that enables players to create their own levels With FormGen s encouragement players frequently post levels they have created on the Internet where others can download them Micro Star a computer software distributor did just that It downloaded 300 user created levels and stamped them onto a CD which it then sold commercially as Nuke It N I N I is packaged in a box decorated with numerous screen shots pictures of what the new levels look like when played Micro Star filed suit in district court seeking a declaratory judgment that N I did not infringe on any of FormGen s copyrights FormGen counterclaimed seeking a preliminary injunction barring further production and distribution of N I Relying on Lewis Galoob Toys Inc v Nintendo of Am Inc 964 F 2d 965 9th Cir 1992 the district court held that N I was not a derivative work and therefore did not infringe FormGen s copyright The district court did however grant a preliminary injunction as to the screen shots finding that N I s packaging violated

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