also testified that a new game must include new material or “the game player is going to feel very cheated and robbed, and [the] product will have a bad reputation and word of mouth will probably kill its sales.” Howard Lincoln, Senior Vice President of Nintendo of America, acknowledged that Nintendo has no present plans to market such games.
The district court also noted that Nintendo’s assertion that it may wish to re-release altered versions of its game cartridges is contradicted by its position in various other lawsuits:
In those actions, Nintendo opposes antitrust claims by using the vagaries of the video game industry to rebut the impact and permanence of its market control, if any. Having indoctrinated this Court as to the fast pace and instability of the video game industry, Nintendo may not now, without any data, redefine that market in its request for the extraordinary remedy sought herein. … While board games may never die, good video games are mortal.
Galoob, 780 F.Supp. at 1295. The existence of this potential market cannot be presumed. See Sony, 464 U.S. at 451, 104 S.Ct. at 793. See also Wright v. Warner Books, Inc., 953 F.2d 731, 739 (2d Cir.1991) (affirming district court’s finding of no reasonable likelihood of injury to alleged market because “[p]laintiff has offered no evidence that the project will go forward”). The fourth and most important fair use factor also favors Galoob.
Nintendo’s most persuasive argument is that the creative nature of its audiovisual displays weighs against a finding of fair use. The Supreme Court has acknowledged that “fair use is more likely to be found in factual works than fictional works.” Stewart, 495 U.S. at 237, 110 S.Ct. at 1769. This consideration weighs against a finding of fair use, but it is not dispositive. See Sony, 464 U.S. at 448, 104 S.Ct. at 792 (fair use defense is an “equitable rule of reason”). The district court could properly conclude that Game Genie users are making a fair use of Nintendo’s displays.
3. Temporary and permanent injunction
Galoob has not violated the Copyright Act. Nintendo therefore is not entitled to a temporary or permanent injunction.
AFFIRMED.
RYMER, Circuit Judge, concurring in the judgment:
I concur in the judgment for reasons stated by the district court, Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 780 F.Supp. 1283 (N.D.Cal.1991).
UNITED STATES of America, Plaintiff–Appellee,
v.
Marion George GINES, Defendant–Appellant.
No. 91–4046.
United States Court of Appeals, Tenth Circuit.
May 13, 1992.
