Midway Mfg. Co. v. Bandai-America, Inc.

OPINION

Technological advances and the incessant quest for new forms of leisure time amusement converge in the instant case to thrust this Court into the center of the current video game mania gripping the United States. Specifically, this case involves two of the most popular video games of all time, Pac-Man and Galaxian. Plaintiffs, Midway Manufacturing (Midway) and Coleco Industries (Coleco), manufacture and sell, respectively, the full-size arcade and two of the authorized handheld miniaturized versions of these games. They are suing Bandai Industries (Bandai), a New Jersey corporation importing two other handheld games named Galaxian and Packri Monster. These games are manufactured and exported from Japan respectively by defendants Bandai Company, Ltd. (BL) and Bandai Overseas Corp., (BO). Both of these Japanese corporations are related to Bandai. 1

Plaintiffs allege that the Bandai hand-held games violate the copyright and trademark laws of the United States, as *133 well as the unfair competition laws of New Jersey and California. Midway in particular charges that the audiovisual displays of the Bandai games infringe its copyright in the audiovisual works of its own arcade games while the names of the Bandai games infringe Midway’s trademarks in the names of its arcade machines. Coleco as a licensee of these copyrights and trademarks joins in Midway’s allegations of infringements of same. Presently before the court are Midway’s motions for summary judgment that:

1. Bandai’s Galaxian game infringes Midway’s copyrights in its Galaxian game;

2. Bandai’s Galaxian game infringes Midway’s trademark “Galaxian”;

3. Bandai’s Packri Monster game infringes Midway’s copyright in its PacMan game;

4. Bandai’s Packri Monster game infringes Midway’s trademark “PacMan”.

In the alternative, Midway requests preliminary injunctive relief on these claims. 2

I. Background

Midway is a well-known American producer of video arcade games. Its Galaxian and Pac-Man games were created by Nam-co, Ltd. (Namco), a Japanese corporation. Both games were first published in Japan by Namco, Galaxian on September 17, 1979 and Pac-Man on May 22, 1980. Midway learned of both games at showings in Japan and determined that they had commercial potential in the United States. Namco and Midway accordingly entered into an agreement whereby Midway would receive all copyright and trademark rights in the two games in both the United States and the rest of the Western Hemisphere. Assignments of the copyright rights in Galaxian and Pac-Man were recorded with the Copyright Office on March 6, 1980 and November 13, 1980, respectively. On the strength of these assignments, Midway was issued copyright registrations in its name for both games as audiovisual works, effective the same dates as the assignments were filed. 3

Midway began marketing Galaxian in the beginning of 1980 and Pac-Man in early 1981. It has promoted these games at considerable expense and they have proved to be two of the most successful video games ever. Although Midway ceased marketing its Galaxian in July 1981, it apparently continues to sell Pac-Man. 4 Midway has actively licensed rights to its two games. As part of a consent judgment, Midway granted Entex Ltd. a limited license, since expired, to produce handheld Pac-Man and Galaxian games. A similar license as to a Galaxian-type game was granted Epoch, originally a defendant here but since dismissed. Tomy Corporation also has a license to produce its own handheld PacMan electronic game. This license expires on December 1, 1983 and was part of a quit claim assignment by Tomy to Midway of any rights it might have claimed in the mark Pac-Man as well as in Tomy’s mechanical game of the same name. Midway also licensed back Namco, its original assignor of the copyright rights, the rights to the home video versions of the games. Namco has since sublicensed Atari to manufacture such units. Finally, Midway has licensed its co-plaintiff in this suit, Coleco, to produce handheld versions of both Galaxian and Pac-Man bearing those marks. This “semi-exclusive” license is of an indefinite duration and commenced on February 1, 1982. Coleco has been soliciting orders for its games at least since January 1982. Its Pac-Man game was available for retail sale then and its Galaxian game apparently was so available the following month; in *134 any event, both are now being sold to the public. Coleco has expended large sums in advertising and marketing its handheld games.

Bandai’s Packri Monster Game was designed for it by another Japanese company named Kaken. Work on the game apparently began in October 1980; it was first produced for distribution in April or May 1981. BL created its Galaxian game in Japan apparently during early 1980. BL sells these games to BO; BO sells them, in Japan, to Bandai which, in turn, actually imports them into the United States. Bandai has been selling Galaxian units in the United States since late 1980 and Packri Monster Games since July 1981.

Midway’s Arcade games cost several thousand dollars and are sold primarily to arcades, bars, and similar establishments. Bandai’s games sell for approximately $30-$50 and are retailed to the general public mainly through toy stores.

II. The Games

At the heart of a copyright infringement action are the works themselves. Since audiovisual works are at issue here, extensive visual and aural examinations have been undertaken. A description of the various games is thus in order. 5

A. Midway’s Pac-Man: The Seventh Circuit in the recent case of Atari v. North American Philips Consumer Electronics Corp., 672 F.2d 607 (7th Cir. 1982) had before it an infringement action involving the very same Midway Pac-Man game as is at issue here. The following description, which this court adopts, may be found at 672 F.2d 610-611:

The copyrighted version of PAC-MAN is an electronic arcade maze-chase game. Very basically, the game “board,” which appears on a television-like screen, consists of a fixed maze, a central character (expressed as a “gobbler”), four pursuit characters (expressed as “ghost monsters”), several hundred evenly spaced pink dots which line the pathways of the maze, four enlarged pink dots (“power capsules”) approximately located in each of the maze’s four corners, and various colored fruit symbols which appear [intermittently] near the middle of the maze during the play of the game.

Using a “joy stick,” the player guides the gobbler through the maze, consuming pink dots along the way. The monsters, which roam independently within the maze, chase the gobbler. Each play ends when a monster catches the gobbler, and after three plays, the game is over. If the gobbler consumes a power capsule, the roles reverse temporarily: the gobbler turns into the hunter, and the monsters become vulnerable. The object of the game is to score as many points as possible by gobbling dots, power capsules, fruit symbols, and monsters.

The PAC-MAN maze has a slightly vertical rectangular shape, and its geometric configuration is drawn in bright blue double lines. Centrally located on the left and right side of the maze is a tunnel opening. To evade capture by a pursuing monster, the player can cause the central character to exit through one opening and re-enter through the other on the opposite side. In video game parlance this concept is called a “wraparound.” In the middle is a rectangular box (“corral”) which has a small opening on the upper side. A scoring table, located across the top of the maze, displays in white the first player’s score on the left, the high score to date in the middle, and the second player’s score on the right. If a player successfully consumes all of the dots, the entire maze flashes alternately blue and white in victory, and a new maze, replenished with dots, appears on the screen. When the game ends a *135 bright red “game over” sign appears below the corral.

At the start of the game, the gobbler character is located centrally near the bottom of the maze. That figure is expressed as a simple yellow dot, somewhat larger than the power capsules, with a V-shaped aperture which opens and closes in mechanical fashion like a mouth as it travels the maze. Distinctive “gobbling” noises accompany this action. If fate (or a slight miscalculation) causes the gobbler to fall prey to one of the monsters, the action freezes, and the gobbler is deflated, folding back on itself, making a sympathetic whining sound, and disappearing with a star-burst.

The four monster characters are identical except that one is red, one blue, one turquoise, and one orange. They are about equal in size to the gobbler, but are shaped like bell jars. The bottom of each figure is contoured to stimulate [sic] three short appendages which move as the monster travels about the maze. Their most distinctive feature is their highly animated eyes, which appear as large white circles with blue irises and which “look” in the direction the monster is moving. At the start of each play, the monsters are located side-by-side in the corral, bouncing back and forth until each leaves through the opening. Unlike the gobbler, they do not consume the dots, but move in a prearranged pattern about the maze at a speed approximately equal to that of the gobbler. When the gobbler consumes a power capsule and the roles reverse, the monsters panic: a siren-like alarm sounds, they turn blue, their eyes contract into small pink dots, a wrinkled “mouth” appears, and they immediately reverse direction (moving at a reduced speed). When this period of vulnerability is about to end, the monsters warn the player by flashing alternately blue and white before returning to their original colors. But if a monster is caught during this time, its body disappears, and its original eyes reappear and race back to the corral. Once in the corral, the monster quickly regenerates and reenters the maze to resume its pursuit of the gobbler.

Throughout the play of PAC-MAN, a variety of distinctive musical sounds comprise the audio component of the game. Those sounds coincide with the various character movements and events occurring during the game and add to the excitement of the play.

To the foregoing account, this court would add that when, in the same game, the board is cleared of dots twice, five times, nine times, thirteen times, and possibly various times thereafter, the play action ceases and the player loses control of the machine. During this brief interlude of perhaps- five to ten seconds, there appears on the screen a cartoon sequence. The first cartoon sequence depicts the central character (generally referred to as the Pac-Man) beating a hasty retreat from right to left across the screen while being pursued by one of the ghost figures. They disappear very briefly from the left side of the screen and then reappear, their roles reversed, with an enlarged Pac-Man pursuing from left to right a ghost in its vulnerable blue mode. During this entire sequence, a distinctive theme song plays. This first sequence is the most relevant for reasons which will be discussed below. 6

B. Bandai’s Paekri-Monster: Bandai’s Packri-Monster game is housed in a silvergrey rectangular plastic box measuring approximately 8" X 4" X 1". The display screen is at the upper right of this box and *136 is approximately IV2" X 4". The player controls the action of the game via a small black plastic joystick at the lower right-hand of the game.

The maze itself is somewhat smaller than the display screen. Its configuration is less complex than that of Midway’s Pac-Man. Rather than being projected by light, the outline of the maze is embossed in white on the transparent plastic panel covering the light-emitting surface of the game. At the top center of the maze is a rectangle with the word “score” above it, both similarly embossed in white. At the bottom left and right of the maze are openings, both marked “warp”. In the center of the maze is another rectangle with an opening at the top, denominated by the game’s package as the “bogey room”. At the left of the maze are two more rectangles, one atop the other, open on the left side.

When the machine is turned on, 37 small green solid ovals and two red ones appear on the playing field, the two red dots at the top left and right of the screen. Directly below the bogey room there appears a larger blue outline of an oval with what appear to be two small bulges in the top of it at left and right, approximating eyes. The bottom center portion of this oval has two breaks in the outline, thus suggesting a jaw or mandible. Bandai calls this depiction the “monster”. There are three monsters per game. The player’s remaining monsters appear at the left of the maze, one each in the two rectangles described above. In the bogey room there appears a red outline of a lone bell jar shaped creature with two short horns or antennae protruding from its top. At the bottom is a wavy line suggestive of feet or other appendages. This “bogey” as Bandai denominates it, is larger than the monster. Until the player begins the game, the bogey first moves from side-to-side in its room, then emerges from same and roams according to a predetermined pattern in an attract mode. It does not consume the dots.

Once the player starts the Bandai game, he can move the monster to the left and right and up and down by manipulating the joystick. As the monster moves, its jaw disappears and reappears, creating the illusion of an opening and closing mouth. As the monster passes over the dots in the maze, they disappear. Thus, the illusion is created of the monster eating or consuming the dots. As each dot disappears, a short tone is heard.

As the game is played, the bogey moves about the maze, at times appearing to move randomly, at times seeming doggedly to pursue the monster. If the bogey overtakes the monster in the ordinary course of play, a musical tone sounds, the monster appears, flashing, within the bogey for a second or two, and both disappear. The next monster then appears at the start position and the bogey resumes its initial position in the bogey room. If the monster consumes one of the two red dots, the bogey then becomes vulnerable to the monster’s depredations. This is signified by the appearance of the outline of the monster within the bogey. At this point, if the player is successful in overtaking the bogey, a few musical notes are heard and the bogey disappears, reappearing a few seconds later in the room from which it then reemerges. When the bogey’s vulnerability is about to end, the player is warned by the flashing of the monster’s outline within the bogey. During the game, the player may escape pursuing bogeys by utilizing the exits marked “warp”, leaving through one and entering through the other.

If a player succeeds in clearing the board of all its dots, a few musical notes are heard and a new board appears. When the second board appears, two bogeys are in the room. On the third and all subsequent boards, there are three bogeys.

After clearing the second, fourth and presumably every even-numbered board after that, the player is rewarded with monetary loss of control of the machine during which a cartoon sequence appears. This sequence consists of a bogey chasing from the right to left side of the screen a monster. When they reach the left side of the screen, their roles reverse and the monster pursues the vulnerable (signified by the presence of a *137 monster within the bogey) bogey from the left to right of the screen. A musical theme plays during this entire interlude.

It should be noted that the technology underlying the visual displays of the arcade and handheld games differs. The arcade games employ what are essentially television tubes and thus embody a high degree of clarity and detail of image. Like ordinary televisions, the arcade games achieve smooth and realistic depiction of the characters in motion by virtue of a steady stream of electrons striking the screen. The hand-held games utilize light sources which appear similar to those found in calculators and digital watches. The display screens of the handheld games are composed of certain preexisting images which are lighted in sequence to achieve the illusion of motion. Thus, the handheld games present much cruder and more jerky images to the player.

C. Midway’s Galaxian Game : Midway’s Galaxian is housed in an arcade cabinet identical in size and shape to Pac-Man’s; only the coloring and decoration are different. The game is similarly played on a large cathode ray tube (CRT). Galaxian’s joystick moves only left and right and there is an additional button on the console which the player uses to fire his missiles or bullets.

Like Pac-Man, Galaxian has an attract mode, displayed before the insertion of a quarter, which repeats endlessly the same pattern of movements by the game’s figures across the screen. During the attract mode or once the player has commenced a game, there appears a black background simulating outer space against which there plays a multi-color twinkling display of lights representing stars that appear to roll from the top to the bottom of the screen.

Against this background there is visible a pack of creatures representing aliens flying in formation. All but two of these are insectile things (resembling houseflies), all with the same basic configuration but differently colored wings and bodies. All flap their wings and move their legs as they hover. At the bottom of the pack are three rows of ten each red-eyed, blue-bodied insects. Above them is one row of eight red-eyed, purple-bodied things and above that, one row of six yellow-eyed, red-bodied entities. All the insects have blue wings of various shades as well as two antennae and two forelegs. At the top of the pack are two predominately yellow, vaguely triangular geometric shapes with protruding shafts, known as the “flag ships”. This pack moves as a whole horizontally during the attack and play modes, apparently in response to similar movements by the player’s rocket ship. That ship appears at the bottom of the screen as having two cylindrical parts joined by a red top and a “V”shaped brace with a thinner central cylinder between them. Protruding from the red top is a short yellow line which, when the player hits the fire button, shoots upward as a small missile, A new line appears when the one fired meets an alien or disappears at the top of the screen. The player can move his rocket ship horizontally but not vertically.

During play, both single aliens and groups of them will invert and swoop down toward the player’s ship, attacking in waves. Moving across the screen, the marauding aliens drop a profusion of bombs. If the player’s ship is hit, it disappears in a visual simulation of an explosion as will an alien if hit by a player’s missile. Additionally, the player’s ship will be destroyed if it collides with an alien; the aliens, kamikaze-like, attempt to effect just such collisions. As in Pac-Man, the player has three figures at his disposal; also as in Pac-Man, a fourth is awarded for achieving a sufficiently high score. Appropriate screaming dive and explosion sounds accompany the action.

D. Bandai’s Galaxian Game: The Bandai Galaxian is contained in a blue plastic unit which can roughly be described as triangular with one apex slanted upward at approximately a 45° angle to the other two apexes which lie flat. Its greatest width is approximately 7", length 9", and height 5".

The playing screen is approximately lVi" X 3" with a score display above it. As with Bandai’s Packri Monster, the impression created by the lighting used is akin to that of an LED watch or calculator rather than a CRT.

*138 There is no attract mode in Bandai’s Galaxian. When switched on, the machine goes directly into the play mode. There is a fire button but rather than a joystick, there are two buttons which move the player’s spacecraft either right or left. When turned on, the screen displays six clearly insectile creatures hovering at the top of the screen. As they hover, these aliens have blue wings and forelegs with red eyes and bodies. When they descend to attack, they invert and their wing/foreleg color changes to green, their eyes and body remaining red. As they attack, they move both horizontally and vertically and appear to flap their wings. 7 The aliens both drop bombs and attempt to collide with the player’s ship. Against the black background of the game there appear red twinkling dots, simulating stars. These flash on and off in such a fashion as to create the illusion that they are moving from the top to the bottom of the screen.

At the bottom of the screen is the player’s ship. It can be moved horizontally and fires red missiles which protrude from the nose of the ship. The ship appears as three green cylinders joined together, two larger ones flanking a smaller one. A player is allotted five ships; those in reserve are displayed at the top of the screen above the aliens.

III. Copyright Infringement Claims

A. Applicable Copyright Law: Summarizing the basic law germane to a copyright infringement claim is often much easier than applying it. In brief, a plaintiff must show ownership of a valid copyright and copying by the defendant. Atari, Inc. v. North American, 672 F.2d 607, 614 (7th Cir. 1982); Franklin Mint Corporation v. National Wildlife Art Exchange, Inc., 575 F.2d 62, 64 (3d Cir.), cert. denied, 439 U.S. 880, 99 S.Ct. 217, 58 L.Ed.2d 193 (1978). Because copying is often difficult to prove directly, it may be inferred from a showing that a defendant had access to the copyrighted work and that the allegedly infringing work is substantially similar to the copyrighted work. Franklin Mint, 575 F.2d at 64. As cast by this Circuit at least, this basic copyright infringement case entails a two-pronged showing: (1) that defendant has copied the plaintiff’s work and (2) that there is a substantial similarity between the two works, i.e., that “the copying went so far as to constitute improper appropriation.” Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir.), cert. denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (1975); Franklin Mint, 575 F.2d 62, 65. Substantial similarity is the test for each prong, Universal Athletic, 511 F.2d at 907, but as the Third Circuit has stated, “substantial similarity is not always substantial similarity”. Id. The chief difference between the two forms of substantial similarity appears to be the type of inquiry permissible as to each. Dissection (i.e., a detailed analysis of the two works) and expert testimony are proper in establishing substantial similarity to show copying and access. Id. When attempting to demonstrate improper appropriation via the second form of substantial similarity, however, dissection and expert testimony are irrelevant; rather than a detailed analysis of the work, the court should “record [its] impressions as they would appear to a layman viewing the [works] side by side . . . [and] concentrate upon the gross features rather than an examination of minutiae. . . The more the court is led into the finer points of the [works], the less likely it is to stand upon the firmer, if more naive, ground of its considered impression after its own perusal.” Id. at 908-09.

In the Universal Athletic case, the Third Circuit was dealing solely with the type of substantial similarity which goes to the appropriation issue since it accepted the district court’s finding that there had been copying. Id. at 907. The Third Circuit noted that it was “difficult to explain all the points of similarity and dissimilarity between the [works] without going into great detail.” Id. at 908. Presumably, going into such detail would be impermissible *139 on this branch of the substantial similarity inquiry. This quote and the one above perhaps indicate the Third Circuit’s awareness that its decision puts a trial court in the very delicate position of having to identify sufficiently similarities between two works to justify a finding of appropriation without simultaneously making the identification impermissibly detailed so as to constitute forbidden “dissection”. Perhaps the Third Circuit’s teaching in this connection is simply, as it states, that a court should focus upon the gross features rather than examine minutiae when determining substantial similarity for appropriation purposes. This court will proceed on the assumption that this is the ultimate meaning of the Universal Athletic case and will attempt to walk the fine line between the permissible and impermissible in its comparison of the works before it. 8 The delicacy of this inquiry is compounded by the fact that, as numerous courts have observed, determinations of copyright infringement are largely made on an ad hoc basis, the test for infringement necessarily being vague and seemingly arbitrary. E.g., Universal Athletic, 511 F.2d at 907.

It is clear that there can be substantial similarity and copyright infringement between works in different media. Atari, 672 F.2d at 618 n.12; 2 M. Nimmer, Nimmer on Copyright (“Nimmer”) § 8.01[C], p. 8-13 (1981). It is also unquestionable that video games in general are entitled to copyright protections as audiovisual works. Atari, 672 F.2d at 615, 617-18; Stern Electronics, Inc. v. Kaufman, 669 F.2d 852, 856-57 (2d Cir. 1982).

Copyright certificates produced by a plaintiff constitute prima facie evidence of both copyright validity and ownership. Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090, 1092 n.1 (2d Cir. 1977). One element of copyright validity is the originality of the work; a certificate provides prima facie evidence of such originality. Stratchborneo v. Arc Music Corp., 357 F.Supp. 1393, 1399 n.6 (S.D.N.Y.1973). This prima facie presumption of validity and ownership is rebuttable; where evidence in the record casts doubt on the issue, there is no assumption of validity. Durham Industries, Inc. v. Tomy Corporation, 630 F.2d 905, 908 (2d Cir. 1980). A defendant may rebut the prima facie effect of a copyright registration by producing evidence that the copyrighted work was itself copied from another work, Russ Berrie & Co., Inc. v. Jerry Elsner Co., 482 F.Supp. 980, 987 (S.D.N.Y.1980), thus challenging the originality of plaintiff’s work. Upon proof by a defendant that a plaintiff had access to similar prior works, the burden of proving originality shifts back to plaintiff. M. M. Business Forms Corporation v. Uarco, Incorporated, 347 F.Supp. 419, 425 (S.D.Ohio 1972), aff’d 472 F.2d 1137 (6th Cir. 1973). It is apparently the court’s responsibility on a preliminary injunction motion as well as in a bench trial to deter *140 mine whether a copyright registration has been successfully rebutted. Russ Berrie, 482 F.Supp. 980, 987. To show a lack of originality and thereby rebut a plaintiff’s registration certificate, a defendant should, in the absence of direct proof of copying, make the same showing of copying by plaintiff required in a prima facie infringement case, i.e., access and substantial similarity as between plaintiff’s work and that from which it was allegedly copied. 3 Nimmer § 12.11[A], p. 12-75-78 & n.15. It is clear that, subject to the discussion below of the law regarding summary judgment in copyright cases, the issue of copying and thus the subsidiary issues of access and substantial similarity are questions for the trier of fact. Novelty Textile, 558 F.2d 1090, 1093 n.2; 3 Nimmer § 13.01[B], p. 13-5-6. Thus, a court would not be justified in finding that a registration certificate has been rebutted as prima facie evidence of originality unless either the court was sitting as the trier of fact or it found as a matter of law that the similarities between the plaintiff’s work and the allegedly preexisting work were so great as to mandate, in the absence of other evidence from plaintiff, a finding of copying by plaintiff. In short, since originality is a requirement of a copyright, a finding that a defendant has rebutted a certificate by showing plaintiff’s lack of originality in his work is tantamount to judgment for defendant, at least in the absence of other evidence proving plaintiff’s originality. 9 A court such as this, asked to entertain alternative motions for summary judgment or for a preliminary injunction, should thus determine whether a certificate has been rebutted as to originality by the standards applicable for summary judgment in a copyright case. If such standards have not been met by either party, the court cannot decide the rebuttal question and should only express its belief in the likelihood that either would prevail on the originality issue at a hearing before the trier of fact. In sum, an argument that a certificate has been rebutted by virtue of plaintiff’s lack of originality is inseparable from the argument that a plaintiff has failed to prove his case and thus should be treated accordingly. 10 A similar approach must be taken to an argument that a registration is invalid because a plaintiff failed to disclose preexisting works in his application for copyright registration. See, e.g., Russ Berrie, 482 F.Supp. at 987-88. This follows from the fact that such a failure to disclose logically presupposes the same elements — plaintiff’s access to a work from which he copied — as does a rebuttal of a registration based on plaintiff’s lack of originality. It is only common sense that a registration cannot be invalidated for failing to disclose preexisting works if those works are not in fact substantially similar to the copyrighted work and plaintiff did not copy them.

*141 Summary judgment, including judgment for the plaintiff, is permissible in a copyright case. Knickerbocker Toy Co., Inc. v. Genie Toys Inc., 491 F.Supp. 526 (E.D.Mo.1980); Leeds Music Limited v. Robin, 358 F.Supp. 650, 653 (S.D.Ohio 1973). 11 Summary judgment should not be granted a copyright litigant where the position of the party opposing the motion would be supported at trial by substantial evidence. Knickerbocker Toy, 491 F.Supp. at 528. Substantial evidence must be such that a reasonable mind would accept it as sufficient to support a conclusion; it must suffice to justify a denial of a directed verdict for the movant at the close of a jury trial. Id. Put otherwise, a court should grant a copyright litigant summary judgment where substantial similarity is in issue only if it would be required at trial to direct a verdict for the moving party. McMahon v. Prentice-Hall, Inc., 486 F.Supp. 1296, 1301 (E.D.Mo.1980). See O’Neill v. Dell Publishing Co., Inc., 630 F.2d 685, 687 (1st Cir. 1980). Where the only facts relevant to the substantial similarity question — the two works — are before a court and not in dispute, the directed verdict issue can be resolved in a summary judgment motion before trial. McMahon, 486 F.Supp. at 1301. On Midway’s motion here for summary judgment, the question is thus whether this court would be bound to direct a verdict for Midway at trial, i.e., whether this court can rule that no reasonable jury could find a lack of substantial similarity between the Midway and Bandai works.

Under F.R.Civ.P. 56(d), a district court may render a partial summary adjudication withdrawing from a copyright case issues as to which there is no genuine question of fact. Testa v. Janssen, 492 F.Supp. 198, 204 (W.D.Pa.1980). In Testa, plaintiff failed to furnish sufficient evidence, even of a circumstantial nature, directly suggesting access by defendants. Id. at 203-04. Accordingly, the court held that as a matter of law, proof of access was lacking. Id. Plaintiff was thus precluded at trial from directly asserting that defendants had access. 12 Id. at 204.

It should be noted that there is absolutely no impediment in a copyright infringement action to granting a plaintiff a preliminary injunction while simultaneously denying his motion for summary judgment. Herbert Rosenthal Jewelry Corp. v. Grossbardt, 428 F.2d 551, 554 (2d Cir. 1970). Acknowledgement that disputed fact issues exist does not preclude a court from granting a plaintiff preliminary relief. Id. Similarly, the existence of a plausible defense in a copyright case is no barrier to the issuance of a preliminary injunction as long as the movant shows a substantial likelihood of success on the merits. Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184, 1188 (5th Cir. 1979).

In general, a copyright plaintiff seeking a preliminary injunction must establish a reasonable likelihood of success on the merits and a showing of irreparable injury absent an injunction. Kontes Glass Co. v. Lab Glass Inc., 373 F.2d 319, 320-21 (3d Cir. 1967). Additional factors to be considered by a district court in exercising its discretion are the balance of hardships between the parties and whether the public interest would be served by issuing a pre *142 liminary injunction. Atari, 672 F.2d 607, 618; Klitzner Industries, Inc. v. H. K. James & Co., 535 F.Supp. 1249, 1253 (E.D.Pa.1982). The trend of the law in preliminary injunction cases involving copyright infringement appears to be that, upon a showing of likelihood of success on the merits, irreparable injury to the plaintiff will be presumed. At a minimum, the Second and Seventh Circuits have adopted such an approach. Wainwright Securities Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 94 (2d Cir. 1977), cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 759 (1978); Atari, 672 F.2d 607, 620 (7th Cir. 1982); see generally 3 Nimmer § 14.06[A], pp. 14-50 & n. 16. The presumption of irreparable injury has also been applied by a number of district courts. See, e.g., Northwestern Bell Telephone Co. v. Bedco of Minnesota, Inc., 501 F.Supp. 299, 303 (D.Minn.1980); Metro-Goldwyn-Mayer, Inc. v. Showcase Atlanta Cooperative Productions, Inc., 479 F.Supp. 351, 362 (N.D.Ga.1979); Neal v. Glickman, 391 F.Supp. 1088, 1089 (N.D.Texas 1975); Walt Disney Productions v. Air Pirates, 345 F.Supp. 108, 110 (N.D.Cal.1972), aff’d in part and rev’d in part on other grounds, 581 F.2d 751 (9th Cir. 1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1054, 59 L.Ed.2d 94 (1979). Closer to home, a string of Pennsylvania district court cases has adopted the presumption. See, e.g., Klitzner Industries, 535 F.Supp. at 1258-59; Custom Decor, Inc. v. Nautical Crafts, Inc., 502 F.Supp. 154, 157 (E.D.Pa.1980); Triangle Publications, Inc. v. Sports Eye, Inc.,