Fixation Issues

When is a thing “fixed” for purposes of the copyright act? Section 101 provides a definition of “fixed:” when a work is embodied in an embodiment that is “sufficiently permanent or stable to permit it to be perceived, reproduced or otherwise communicated for a period of more than transitory duration.”

Within the context of technology, this question is raised when something is presented to an end user in the working memory of a computer – is this sufficiently fixed for protection under the Act, even though it may never be saved to the hard drive or to a network storage device? What parts of video games are fixed, in light of the fact that the audio visual presentation on screen to the user may vary based on the input of the user? Fixation is also a question when a party argues that a work is a derivative of another’s work. For example, in Lewis Galoob Toys, the court was faced with the question of whether the defendant’s product created a derivative work when used in conjunction with plaintiff Nintendo’s game system. Here, the court ultimately held that the defendant’s product did not create derivative works when it allowed video game users to alter their character’s statistics or vulnerability to harm within the video game. The court reasoned that the product did not incorporate a portion of the copyrighted work in a concrete or permanent form – there was not fixation in the manner in which the Act intended.

Published by


Maryland technology attorney and college professor.

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