Ninth Circuit Says Sims Flash Drive Design May Be Eligible for Copyright

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Feb 27, 2017

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Sims GameThe US Court of Appeals for the Ninth Circuit recently ruled that a flash drive design based on a symbol that appears in The Sims video game might be original enough to qualify for copyright protection.

The Sims is a “life simulation” video game from Electronic Arts (EA). Players create virtual people (called “Sims”) and build them virtual homes and communities to live in. They can even buy virtual furniture from the Ikea catalog.

Sims Flash DriveWhen a player controls a specific Sim, a “PlumbBob” icon, shown below, appears over that character’s head.

EA holds a copyright for the PlumbBob icon design.

When The Sims 3 was about to be released, EA ordered flash drives shaped like the PlumbBob to be sold with the game. EA worked with a company called Lithomania, and Lithomania hired a company called Direct Technologies (DT) to make a prototype.

Price Cutting

Lithomania then sent the prototype flash drive to a Chinese company that offered to make it for 50 cents less than the Direct Technologies price.

Once the Chinese flash drives came out on the market, DT sued Electronic Arts, claiming that DT was the joint owner of a copyright for the PlumbBob drive and thus that it was entitled to share the profits from the drive.

The district court ruled in favor of Electronic Arts, finding that the flash drive wasn’t “original” enough to qualify for copyright protection, and also that DT had signed a vendor agreement transferring all rights in the drive to EA.

On appeal, the Circuit Court vacated the district court’s decision, finding that DT could win if the case went to a jury “if the contract was fraudulently induced, such that it was invalid from the beginning.”

Derivative Works

Because EA owned the copyright to the original 2-D version of the icon, the issue at the heart of the case was whether DT’s 3-D version of the icon in the form of a flash drive was entitled to copyright protection as a “derivative work.”

A “derivative work” is a work based on something that already exists, and the term usually arises in the context of copyright law.

For example, the stage musical “West Side Story” is a “derivative work,” of “Romeo and Juliet.” The movie version is a derivative work of the stage version. The German version is a derivative work of the English version, etc.

As the court noted,

If DT contributed material “distinguished from the preexisting material employed in the work,” DT can claim a copyright in its contributions.

DT claimed that its design was original because:

  • The EA version of the icon had 20 unequal sides, and the flash drive had 12 equal sides.
  • The flash drive was designed to fit into the icon-shaped housing with a “futuristic cut away look . . . at a unique angle.”

The court rejected the 12-sides-versus-20-sides argument, but said that

if a jury determines that the manner in which DT designed the USB drive to fit into the PlumbBob object is artistic and non-functional, … we hold that there is a genuine issue of material fact as to whether DT’s USB drive is sufficiently original to warrant copyright protection. That aesthetic feature is “something recognizably the artist’s own,” and a reasonable jury could determine that it meets the “low” standard for originality.


Photo Credit: .snowball fight. by Luna Jubilee / !bang poses. Attribution 2.0 Generic. 

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