Nature of the Case
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Facts
Ds made, distributed, and owned the rights to Duke Nukem 3D (3D), an immensely popular computer game. The player assumes the personality and point of view of Duke, who is seen on the screen only as a pair of hands and an occasional boot. The goal is to zap aliens in a city before they zap you while searching for the hidden passage to the next level. The basic game comes with twenty-nine levels. The game includes a 'Build Editor,' a utility that enables players to create their own levels. Players frequently post levels they have created on the Internet where others can download them. P downloaded 300 user-created levels and stamped them onto a CD, which it then sold commercially as Nuke It (IT). IT is packaged in a box decorated with numerous 'screen shots,' pictures of what the new levels look like when played. P filed suit seeking a declaratory judgment that IT did not infringe on any of D's copyrights. D counterclaimed, seeking a preliminary injunction barring further production and distribution of IT. The district court held that IT was not a derivative work and therefore did not infringe D's copyright. The district court did grant a preliminary injunction as to the screen shots, finding that IT's packaging violated D's copyright by reproducing pictures of D/N-3D characters without a license. The court rejected P's fair use claims. Both parties appealed.
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