Atari v. Valadon

Key takeaways

This is where it all begins. In 1986, the French Court of Cassation sitting in its most solemn formation had to decide whether an electronic game, an arcade machine at the time, could be protected as a work. Its answer was yes: whether it is a program or moving images makes no difference, the game is protectable as long as it bears the mark of a creative contribution.

In the same ruling, the Court made clear that protection does not depend on any aesthetic consideration, and accepted that original software is also a protected work. Handed down on the same day as the Pachot ruling on software, it brought video games into intellectual property law. Everything that followed, from Cryo to the debates on mods, starts here.

The context sheds light on the scope of the ruling. Some lower courts then refused any protection for electronic games, seeing them as mere mechanisms with no aesthetic dimension. The Plenary Assembly rejected that reasoning: the merit and purpose of a creation are irrelevant, a rule now found in Article L. 112-1 of the French Intellectual Property Code.

The ruling does, however, leave one question entirely open: to which category of work does a game belong, and which regime applies? Software, audiovisual work, collective work: courts hesitated for more than twenty years, until the Cryo ruling of 2009.