Laws of Play

The Landmark Cases: In the beginning, there was pong

Pong. It’s the game that many consider to be the beginning of video games as we know them and, for the most part, this is true. While there were games before Pong, there is no question that Pong was the first video game to achieve significant success. In fact, Pong’s initial introduction to the California bar scene in 1972 was greeted with lines of people waiting outside to take a chance at electronic table tennis.

Pong’s creator, Nolan Bushnell, attributed the failure of his first game, Computer Space, and the success of Pong to the relative complexity of each game. He reportedly once said, “To be successful, I had to come up with a game people already knew how to play; something so simple that any drunk in any bar could play.”¹

The runaway success of Pong lead to the eventual creation of Atari, the first big name in home gaming, but the road to Bushnell’s success was anything but trouble-free. From the earliest days of Pong’s commercial success, Bushnell and Atari were mainstays in the US court system.

Pong brought many “firsts” to the entertainment software industry: It was the first game to take pinball’s status as king of arcades, it ushered in the first commercially successful home video game console, and it planted the seeds that eventually became the multi-billion dollar video game industry that we know today. But, along with creating an industry through technological innovation, Pong and Atari also helped establish many important precedents for both the video game industry and intellectual property law in general.

The first major lawsuit faced by Mr. Bushnell came in 1974 from Sanders/Magnavox. Magnavox alleged that they held a patent for a table tennis video game of which Pong was a reproduction. Magnavox claimed that Bushnell played their Magnavox Odyssey table tennis game at a Burlingame, CA trade show and eventually used it as the basis for Pong. In 1977, the Federal District Court in Chicago ruled in favor Magnavox on all counts and opined that US patent #3,728,480 was the pioneering design for the video game. Bushnell settled the case with Magnavox and agreed to license Magnavox’s applicable patents.

The consequences of this first lawsuit were significant; this was the first time in history that a court considered the intellectual property rights of video games. Again, in 1992, Atari would pioneer intellectual property law in a case decided by then-Court of Appeals Judge Ruth Bader Ginsber. See Atari Games Corp. v. Oman, 979 F.2d 242 (D.C. Cir. 1992).

In Atari Games Corp. v. Oman, Atari was faced with defending their right to place a copyright on their game video game Breakout. Prior to the DC Court of Appeals decision, Atari was faced with a refusal by the Register of Copyright to register Breakout as an audiovisual work. The lower court upheld the Register of Copyright’s decision and said that the Register’s actions did not qualify as an “abuse of discretion.” The Court of Appeals, in disagreement with the lower court, reversed the Copyright Office’s refusal to register the copyright of Breakout. While there were several cases involving other early video games and copyright, Atari Games Corp. v. Oman is considered to be one of the most important because it finally established that software code and the on-screen images could both be independently protected by copyright.

Atari’s patent and copyright litigation has set some of the most important precedent used to protect gaming IP today. But, there is more to Atari’s story than these few cases. In the next edition of The Landmark Cases, Laws of Play will discuss Atari’s litigation in the areas of 3rd party development and archival reproduction of video games, issues that still draw much attention today.

1. http://www.samhart.com/vgh/first/atpongarc.shtml [↩]