Micro Star v. FormGen Inc.
United States Court of Appeals for the Ninth Circuit
154 F.3d 1107 (1998)
FormGen (plaintiffs) created the video game Duke Nukem 3D (DN-3D), which let players generate and share new game levels using in-game tools. Micro Star (defendant) downloaded 300 user-created levels and packaged them as a CD product called Nuke It for commercial sale. Micro Star sought a declaratory judgment that Nuke It did not infringe FormGen's copyrights, and FormGen counterclaimed for a preliminary injunction; the district court found Nuke It was not a derivative work but nonetheless enjoined its packaging, and both sides appealed.
Whether, to infringe a protected work under 17 U.S.C. section 106(2), a derivative work must exist in a permanent, physical form and substantially incorporate protected elements of the protected work.