A Purr-fect Opinion On Copyright Registrations

Order Granting Defendants' Motion to Dismiss, Epikhin et al. v. Game Insight N.A., et al., 5:14-cv-4383 (Judge Lucy Koh)

Cat videos are one of the most popular types of user-uploaded Internet videos. It is unsurprising, then, that there is now cutting-edge copyright case law about a cat-themed video game. In a case about who owns the copyright to the game "Cat Story," Judge Koh recently issued an order dismissing the case because the plaintiff failed to deposit copies of the game at issue itself with the Copyright Office. As her opinion shows, this is something that plaintiffs need to get right.

The central issue of the case was who owned the copyright to the mobile app video game Cat Story. Before Cat Story was developed, Plaintiffs had started developing a similar game called "PussyVille." Allegedly, Defendants offered to help develop PussyVille for a share of the app's profits, subsequently obtained some of the PussyVille source code, and then used that code to make Cat Story.

When Plaintiffs registered their copyrights to prepare for litigation, they did not have access to the Cat Story source code. And, due to a dispute with two of the Defendants, they also did not have access to the PussyVille files. So instead, Plaintiffs registered the source code for "Fairy Farm," a game that PussyVille was allegedly based on, meaning that Plaintiff was trying to rely on material that was two derivatives removed from the asserted copyright in Cat Story. Plaintiffs also registered images from Cat Story that were allegedly derived from PussyVille. Thus, even though Plaintiffs listed their registrations as "PussyVille" and "Cat Story," they did not deposit the actual source code of either game.

Defendants argued that Plaintiffs' copyright claim must be dismissed because Plaintiffs had not properly registered the PussyVille or Cat Story source code. Judge Koh agreed. Starting from the registration requirement that "is a 'precondition to [a copyright] suit'" (quoting Kodadek v. MTV Networks, Inc., 152 F.3d 1209, 1211 (9th Cir. 1998), Judge Koh explained that a valid registration requires a deposit "of 'bona fide copies of the original work," not a "reconstruction." Looking again to the 9th Circuit in Kodadek, Judge Koh noted that "'if it were otherwise . . . the possibilities for fraud would be limitless.'" (Citations omitted.) Even if the Cat Story code was based on the Fairy Farm code by way of PussyVille, the Fairy Farm source...