Vondran Legal® Video Game Law Case Briefs - By Attorney Steve® | Vondran Legal®
Video Game Copyright Registration: Do You Have to Deposit the Actual Arcade Machine?
One of the most fascinating copyright cases from the early days of the video game industry answered a question that still has relevance today:
Must a video game developer deposit the actual game hardware with the U.S. Copyright Office to obtain a valid copyright registration?
Fortunately for the industry, the answer was no.
In Midway Manufacturing Co. v. Artic International, Inc., 547 F. Supp. 999 (N.D. Ill. 1982), a federal district court rejected an attempt to invalidate Midway's copyrights in its legendary arcade games, including Pac-Man and Galaxian, based on the argument that Midway failed to deposit the "actual" copyrighted works.
The decision became one of the landmark cases explaining how the Copyright Office's deposit requirements apply to video games and other technologically complex works.
If you develop games, software, mobile apps, virtual reality experiences, or other interactive digital media, understanding this case can help you appreciate both the flexibility—and the importance—of the copyright registration process.
The Issue
The defendant, Artic International, manufactured replacement circuit boards that allegedly copied Midway's arcade games.
Rather than simply defending against infringement, Artic attacked the validity of Midway's copyright registrations themselves.
Their argument was straightforward:
Midway never deposited the actual copyrighted work with the Copyright Office.
Instead of sending:
- arcade cabinets,
- printed circuit boards,
- ROM chips,
- or complete hardware,
Midway deposited:
- videotapes showing gameplay,
- videotapes of the attract mode,
- written descriptions of the audiovisual work,
- identifying promotional materials.
Artic argued these deposits meant Midway had merely copyrighted videotapes—not the actual arcade games.
If correct, Midway's registrations could have been declared invalid.
The Rule
Under the Copyright Act, applicants generally must deposit copies of the copyrighted work when seeking registration.
See:
17 U.S.C. §§ 408–409
The purpose of the deposit requirement is to permit examination by the Copyright Office and to preserve a record of the work being registered.
However, Congress also recognized that depositing every type of copyrighted work in its original form is not always practical.
For certain categories of works, the Copyright Office may accept:
- identifying material,
- photographs,
- drawings,
- videotapes,
- or other representative deposits,
instead of the physical object itself.
This authority has long existed through regulations and administrative practice allowing "special relief" from ordinary deposit requirements.
Why Midway Did Not Deposit Arcade Machines
In the early 1980s, arcade games were enormous commercial machines.
A single arcade cabinet contained:
- specialized electronics,
- custom printed circuit boards,
- ROM chips,
- proprietary hardware,
- power supplies,
- monitors,
- control panels,
- cabinetry.
Shipping complete arcade machines to Washington, D.C. for copyright registration would have been enormously burdensome.
Recognizing this practical problem, Midway's counsel consulted directly with the Copyright Office.
The Office agreed that complete machines were unnecessary.
Instead, Midway received permission to submit identifying materials consisting of:
- videotapes of the gameplay,
- videotapes of attract mode,
- written descriptions,
- identifying materials displaying the copyright notice.
These deposits accurately represented the copyrighted audiovisual work without requiring transportation of expensive arcade hardware.
The Defendant's Argument
Artic attempted to exploit this special procedure.
Their theory was essentially:
The deposited videotapes are the copyrighted works.
If the videotapes were the copyrighted works, then:
- the registration applications were inaccurate,
- Midway misidentified the work,
- the registrations were invalid,
- infringement claims failed.
It was an aggressive procedural attack that had the potential to derail the entire lawsuit.
The Court's Analysis
The federal district court rejected Artic's position.
The court carefully distinguished between:
The copyrighted work
and
The identifying materials used to register that work.
This distinction proved decisive.
The videotapes were never intended to replace the copyrighted audiovisual work.
Instead, they merely identified the work for examination purposes under the Copyright Office's approved procedures.
The Copyright Office itself confirmed that it had granted Midway special relief from the normal deposit requirements.
One of the most significant pieces of evidence came from Marybeth Peters, then Chief of the Examining Division of the Copyright Office, who confirmed that the Office did not expect applicants to deposit complete arcade machines.
Instead, identifying materials were considered an appropriate substitute where authorized.
The court analogized the situation to other types of copyright registrations where applicants submit photographs or drawings instead of depositing large three-dimensional objects.
The Holding
The court held that Midway's copyright registrations were valid.
The deposited videotapes were merely identifying materials.
They were not the copyrighted works themselves.
The copyrighted work remained the audiovisual expression embodied within the arcade game.
Accordingly, Midway's infringement claims could proceed.
Why This Case Still Matters
Although arcade cabinets are now largely historical artifacts, the legal principles established by Midway continue to influence copyright law involving digital technology.
Modern creators often ask similar questions involving:
- downloadable software
- mobile applications
- cloud gaming
- virtual reality
- augmented reality
- embedded firmware
- interactive educational software
- artificial intelligence interfaces
- game engines
- console games
- online multiplayer games
Many digital works cannot realistically be deposited in their original commercial form.
The Copyright Office has therefore continued to develop procedures allowing applicants to submit representative deposits appropriate for modern technology.
The central principle remains:
The deposit requirement is intended to identify the copyrighted work—not necessarily to require surrender of the commercial product itself.
Lessons for Modern Game Developers
The Midway decision offers several practical lessons.
1. Register Early
Registration provides important procedural advantages, including access to federal court and, when timely, eligibility for statutory damages and attorney's fees under the Copyright Act.
Waiting until infringement occurs can significantly reduce available remedies.
2. Follow Current Copyright Office Guidance
Deposit requirements vary depending upon:
- computer software
- video games
- audiovisual works
- mobile applications
- updates
- derivative works
- source code
- object code
Developers should carefully review current Copyright Office guidance or consult experienced copyright counsel before filing.
3. Preserve Development Records
Maintain documentation including:
- source code versions
- design documents
- artwork
- gameplay videos
- version histories
- asset ownership
- contractor agreements
- work-for-hire agreements
These materials may become critical evidence if ownership is later challenged.
4. Understand What Is Actually Protected
Video games frequently contain multiple independent copyrights, including:
- computer software
- audiovisual displays
- music
- sound recordings
- dialogue
- artwork
- character designs
- cinematic sequences
- promotional artwork
Proper registration strategy often involves protecting multiple components of the same game.
5. Registration Is Only One Piece of Protection
Developers should also consider:
- trademarks
- trade secrets
- confidentiality agreements
- software licensing
- end-user license agreements (EULAs)
- nondisclosure agreements
- DMCA enforcement
- online marketplace monitoring
A comprehensive intellectual property strategy often combines several forms of protection.
Frequently Asked Questions
Can I copyright my video game?
Yes. Depending on the circumstances, protection may extend to the software, audiovisual elements, artwork, music, dialogue, and other original expression fixed in a tangible medium.
Do I have to send the Copyright Office my entire game?
Not necessarily. Deposit requirements depend on the type of work and the Copyright Office's current rules. In some cases, representative materials or partial deposits may be accepted.
Can someone invalidate my copyright because I followed the Copyright Office's deposit procedures?
Generally, if you complied with applicable Copyright Office requirements and your registration was accepted, the fact that you submitted authorized identifying materials rather than the full commercial product does not, by itself, invalidate the registration. Challenges can still arise in particular cases, but courts often give significant weight to the Copyright Office's acceptance of the registration.
Does Midway still matter today?
Yes. Although technology has evolved dramatically since the early 1980s, the case remains an important illustration of how courts distinguish between the copyrighted work itself and the identifying materials used to satisfy deposit requirements.
How Vondran Legal® Can Help
At Vondran Legal®, we represent clients throughout the United States in copyright and intellectual property matters involving digital content and creative works. Our practice includes:
- Copyright registration strategy for software, games, and digital media
- Video game copyright counseling
- Software licensing and audit defense
- Copyright ownership and chain-of-title analysis
- DMCA takedown notices and counternotices
- Copyright infringement litigation in federal court
- Licensing agreements and settlement negotiations
- Open-source software compliance
- Entertainment and technology transactions
- IP due diligence for developers, publishers, and investors
Whether you are an independent game developer, a software startup, a publisher, or an established technology company, protecting your intellectual property begins with a thoughtful registration strategy and an understanding of how copyright law applies to modern digital works.
Final Thoughts
The Midway Manufacturing v. Artic International decision demonstrates that copyright law has long adapted to technological innovation. The court recognized that rigid application of the deposit requirement would have imposed unnecessary burdens on creators without advancing the purposes of the Copyright Act. By distinguishing between the copyrighted audiovisual work and the representative materials used to identify it, the court preserved practical registration procedures while safeguarding valuable intellectual property.
More than four decades later, that reasoning continues to resonate. As software, cloud services, video games, virtual reality, and AI-driven experiences become increasingly sophisticated, the Midway case serves as an enduring reminder that copyright registration should reflect the realities of technology rather than be defeated by technical formalities.
Disclaimer: This article is provided for educational and informational purposes only and does not constitute legal advice. Every copyright registration presents unique factual and legal issues. Consult qualified counsel regarding your specific circumstances.
