Full opinion text
TABLE OF CONTENTS I.FINDINGS OF FACT —Phase Two Of Trial. 1131 A. Development of BATTLETECH Universe. 1131 B. Development of Virtual Reality. 1134 C. Sales Of The BATTLETECH Property. 1140 D. Recognition of BATTLETECH Among the Relevant Consumers. 1141 E. Originality and Distinctiveness of the BATTLETECH Property. 1141 F. Copyright Registrations. 1142 II.CONCLUSIONS OF LAW — Phase Two. 1145 A. FASA Has Established Original Expressions Of Ideas That Are Protected By The Copyright Act. 1145 B. FASA Has Established That It Has Protectible Trade Dress Rights. 1148 III.FINDINGS OF FACT —Phase Three of Trial. 1151 A. The Development Of The EXO-SQUAD Toy Line By Playmates. 1151 B. FASA’s Efforts To License Its BATTLETECH Designs To Tyco. 1155 C. FASA’s Alleged Confusion Evidence. 1155 D. Playmates’ Survey Evidence Established A Lack of Any Trade Dress Confusion. 1156 E. Playmates’ Heavy Attack E-Frame Prototype Is Not Substantially Similar To FASA’s Mad Cat Design. 1157 F. Playmates’ Marsala Light Attack E-Frame Toy Is Not Substantially Similar to FASA’s Black Hawk Design. 1158 G. Playmates’ Livanus Light Attack E-Frame Is Not Substantially Similar To FASA’s Black Hawk Design. 1158 H. Playmates’ Livanus Light Attack E-Frame Is Not Substantially Similar To FASA’s Bushwacker Design . 1159 I. Playmates’ General Shiva Light Attack E-Frame Is Not Substantially Similar To The King Crab Design. 1159 J. Playmates’ Aec DeLeon E-Frame Is Not Substantially Similar To FASA’s Koshi Design. 1160 K. Playmates’ Aec DeLeon E-Frame Is Not Substantially Similar To FASA’s Daishi Design. 1161 L. Playmates’ Maggie Weston Repair Light Attack E-Frame Is Not Substantially Similar To FASA’s Dasher Design. 1161 M. The Heavy Attack E-Frame Prototypes Of EXO-SQUAD Toys Were Independently Created. 1162 N. The Development Of EXO-SQUAD Toys Draws Inspiration From Third-Party Designs And Designs And Properties Other Than BATTLETECH 1163 O. Specific, Non-Trivial Design Features Distinguish EXO-SQUAD From BATTLETECH. 1166 IV. CONCLUSIONS OF LAW — Phase Three . 1167 A. FASA Failed To Establish By A Preponderance Of The Evidence That Its Protectible Copyright Interests Were Copied By Playmates. 1167 B. FASA Failed To Establish By A Preponderance Of The Evidence That There Is A Likelihood Of Confusion About The Source of EXO-SQUAD Toys. 1171 C. Playmates’ Inclusion Of A Picture Of Its Planned Heavy Attack E-Frame In Its 1993 Toy Catalog Did Not Constitute Unfair Competition. 1173 V. CONCLUSION. 1174 MEMORANDUM OPINION AND ORDER CASTILLO, District Judge. Toys and games are usually welcome diversions to the serious problems that too often confront our daily lives. This case, however, involves a serious business dispute about games and toys. Plaintiffs FASA Corporation and Virtual World Entertainment (collectively “FASA”) claim that defendant Playmates Toys, Inc. (“Playmates”) violated FASA’s copyright and trademark rights to a series of robot-like battlefield characters, which are used in a futuristic setting known as BATTLETECH, when Playmates introduced a series of futuristic robot-like toys known as EXO-SQUAD. In a previous opinion, this Court addressed Playmates’ motion for summary judgment and outlined many of the legal standards that the Court has applied in this bench trial. See FASA Corp. v. Playmates Toys, Inc., 869 F.Supp. 1334 (N.D.Ill.1994) (“FASA I”). FASA I granted Playmates’ motion for summary judgment as to Count II (common law unfair competition), Counts VII and VIII (anti-dilution) and Count IX (tortious interference) and denied the motion as to Count I (Lanham Act unfair competition), Counts III and IV (copyright infringement) and Counts V and VI (trademark infringement). These latter counts proceeded to trial and are addressed in this opinion. Prior to the commencement of trial, this Court, after receiving input from the parties, imposed time limitations for the trial of this case and divided the trial into four phases: Phase I dealt with a waiver issue; Phase II focused on the validity and identification of FASA’s alleged copyright and trade dress rights; Phase III focused on all infringement and liability issues; and Phase TV was to focus on damages. See FASA Corp. v. Playmates Toys, Inc., 892 F.Supp. 1061, 1070 (N.D.Ill.1995). (“FASA II ”). FASA II, which was.issued at the conclusion of Phase I, rejected Playmates’ affirmative defense of waiver, which could have been dispositive of all of FASA’s claims. This opinion, which deals with Phases II and III of the trial, is the third opinion issued by the Court in this case (“FASA III”). In this opinión, the Court finds that FASA has established certain protectible copyright and trademark rights but has failed to prove any facts which establish liability on the part of Playmates. Therefore, Phase IV of the trial will not be necessary and judgment is hereby entered in favor of Playmates. Pursuant to Fed.R.Civ.P. 52, the Court hereby enters the following Findings of Fact and Conclusions of Law regarding Phases II and III of the trial. The Findings of Fact are based upon consideration of the parties’ uncontested facts, all the admissible evidence, as well as this Court’s assessment of the credibility of the trial witnesses. To the extent, if any, that the Findings of Fact as stated may be deemed Conclusions of Law, they should be considered Conclusions of Law. Similarly, to the extent that matters expressed as Conclusions of Law may be deemed Findings of Fact, they should be considered Findings of Fact. I.FINDINGS OF FACT — Phase Two Of Trial A. Development of BATTLETECH Universe 1. FASA originally introduced BATTLE-TECH as a boxed board game entitled BATTLEDROIDS in 1984. The general idea of BATTLETECH involves a complex, war-strategy game involving a futuristic civil war where combatants are both humans and genetically bred humans and use large and medium scale robot-like tanks, as well as powered battlesuits, as their weapons. 2. The game was developed by FASA’s founders, Jordan Weisman and Ross Bab-cock, after they attended the 1984 Annual Trade Show of the Hobby Industries of America which was held in Anaheim, California between January 31, 1984 and February 5, 1984. (Weisman Tr. 261-275; Babcock Dep.). 3. While attending the trade show, Weis-man and Babcock saw several Japanese robot model kits that were displayed for sale by Twentieth Century Imports (“TCI”). Weisman and Babcock discussed with TCI representatives the possibility of creating a board game using the model kits as game markers.. (Weisman Tr. 268-70; Babcock Dep.). FASA obtained licenses from TCI to use several of the MECH designs. 4. Thereafter, FASA began to develop a fictional universe for the BATTLEDROIDS game. The game was set in the 31st century where the Star League, a once-flourishing empire consisting of five separate cosmic houses, has been devastated by over two hundred years of bitter civil war. Each house, encompassing hundreds of different •interstellar worlds, seeks to control the galaxy, known as the Inner Sphere. The battlefields on these worlds are dominated by BATTLEMECHs (also called “MECHs”), massive robot-like tanks of various shapes and designs: (Weisman Tr. 278-91, 358, 396-98; Babcock Dep.). 5. FASA also developed rules for playing the game. BATTLEDROIDS was a new type of science-fiction game system that combined a traditional board game with a more contemporary role-playing game. Each player would control one or more MECH playing pieces on a terrain-specific game board consisting of six-sided grids. The player or gamemaster directed the movement, weaponry and targéts of each MECH playing piece and recorded damage sustained to each MECH during battle in accordance with an elaborate set of rules. (PX 1; Weis-man Tr. 272-76). 6. In August of 1984, FASA created several copies of its prototype BATTLE-DROIDS game and made initial sales to some FASA distributors. (PX 149; Weis-man Tr. 268-74). 7. By September of 1984, FASA had decided to proceed with full scale production of the BATTLEDROIDS game and placed a large order for model kits from TCI for game markers. FASA also requested that TCI obtain artwork of the models from the Japanese manufacturer for use in the BATT-LEDROIDS game and supplemental products. (PX 138; DX 2; Weisman Tr. 288, 360-61; Lewis Tr. 743-^6). 8. In late November of 1984, the model kits arrived and were inserted into the BATTLEDROIDS game boxes. Thereafter, FASA began selling the BATTLEDROIDS game through its nationwide distribution network, which consisted of hobby shops, game shops, comic book shops and book stores. (PX 1,144-46; Weisman Tr. 272-81). 9. The name of the BATTLEDROIDS game was changed in 1985 pursuant to a settlement between FASA and LueasFilm, which had obtained a registration for the mark DROIDS. FASA was then negotiating •with LueasFilm for a license for Star Wars products and determined that it was in FASA’s best interest to work out an agreement with LueasFilm to sell off the remaining BATTLEDROID games and change the name. (PX 150; Weisman Tr. 273-74). 10. When a second edition of the game was printed in the fall of 1985, BATTLE-DROIDS became BATTLETECH. The rules of the game and the fictional setting of the game did not change, although the model kit markers were replaced by paper game markers bearing the same designs because the model kit markers were too large to function properly as game pieces. (PGX 2A; Weisman Tr. 275-80). 11. FASA designed the BATTLETECH universe as a dynamic and constantly evolving fictional environment and carefully planned a controlled schedule of complementary products to promote sales. (Weisman Tr. 275-89). The BATTLETECH game allowed a player to experience a unique interaction between the MECHs and their individual designs. (Weisman Tr. 378). 12. During the fall of 1985, FASA created and introduced its first two BATTLETECH game supplements: The Black Widow (a scenario pack) and The Fox’s Teeth (a scenario pack). Scenario packs are books that describe several different battles. The player is told how the battle started, what forces were used and how to orient his game maps and playing pieces to recreate the scene. The object is to see if the player can change the outcome of the original battle. Scenario packs are designed to appeal to the general reader of science fiction as well as the game player. These two products featured fictional text created by FASA along with FASA’s renditions of the MECH designs licensed from TCI. (PX 89; PX 94; PGX 2B; PGX 2C; Weisman Tr. 286-87). 13. In late 1985 and early 1986, FASA decided to continue the expansion of the BATTLETECH universe by creating its own original BATTLEMECH designs with a look that was intended to distinguish BATTLE-TECH from the Japanese models that were used in the original game. (Weisman Tr. 285). 14. The appearance of the Japanese designs to which FASA had access, were typical of the Japanese giant robot genre at the time and may be described as humanoid, reflecting human forms clothed in metal body armor in superhero-like poses. The weapons and other accessories appear to be attached to the surface of the units, rather than built into the units as integral parts. (Loose Tr. 435-36). 15. FASA hired Duane Loose, an independent artist under contract to FASA, to design MECHs for a source book called Technical Readout 3025, a product that FASA planned to release in 1986. (PX 36). A source book provides background information about the universe so that players can become more deeply involved in the fictional premise of the game. Technical Readout 3025 was designed to become a catalogue containing illustrations, statistics and history for the new MECH designs FASA was creating for use in the BATTLETECH game. The name of the book identifies it as a resource for robotic vehicles in the BATTLE-TECH universe in the year 3025. (PX 3C; 118-19; Weisman Tr. 284-88; Loose Tr. 418-28). 16. Duane Loose created original MECH designs for Technical Readout 3025 based upon MECH names and statistics furnished to him by FASA. The MECHs designed by Loose include: Assassin, Atlas, Awesome, Banshee, Blackjack, Catapult, Centurion, Charger, Clint, Commando, Cyclops, Dervish, Dragon, Enforcer, Firestarter, Grasshopper, Hatchetman, Hermes II, Jagermech, Javelin, Jenner, Orion, Panther, Quickdraw, Trebuchet, UrbanMech, Valkyrie, Victor, Vindicator, Vulcan, Whitworth and Zeus. (PX 96, 117; PGX 3C; Weisman Tr. 287-90; Loose Tr. 427-519). 17. Loose assigned to FASA all of his right, title and interest in the designs he created for FASA (PX 118; Loose Tr. 459-60). 18. The MECH designs created by Loose differed significantly from the Japanese designs by being primarily based on technology and machines rather than humanoid designs. The designs were intended to carry out FASA’s vision of MECHs as vertical tanks that appeared realistic enough to survive the futuristic battlefield. (Loose Tr. 435-40). 19. The armor of Loose’s MECH designs does not appear in uninterrupted expanses, but is made from small segments or panels of plating bolted together. The weapons and other accessories of these designs typically appear as integral to the MECH, rather than as an appendage, so they would not seem likely to be broken off in battle. Loose’s designs include occasional diagonal venting or stripes, a checkerboard effect on missile openings, and conical ends to angular weapons. (Loose Tr. 437-55). 20. Loose’s designs featured a prominent cockpit “with personality” based on visual language that would allow the public to identify the specific MECH by face. (Loose Tr. 442-43, 450). Loose specifically designed MECHs for FASA based on a two to three page written description provided by the writers of the FASA fiction. The deserip-tions that Loose used as a map in creating the designs generally covered the speed, armor, armament, history, name, and manufacturer of the MECH. Loose was given pictures and models of all the licensed designs to use as the basis for his drawings. (Loose Tr. 434:9-21, 528:2-23). 21. The original Japanese designs licensed by FASA are still sold in the BATT-LETECH universe along with other FASA designs. (Weisman Tr. 365:16, 375:25, 377:9-17, 388:3-389:24, 407:22-408:9, 414:17-425:15). The Japanese designs look different from Loose’s designs. Loose changed some of these humanoid-type designs by adding more realistic machine features. (Loose Tr. 438:12-439:14, 489:15-23). Mr. Loose repeatedly reworked the licensed designs. (Loose Tr. 451:19-453:6, 460:17-461:8, 462:13-21, 469:14-20, 495:5-16, 496:8-19, 497:14-21, 498:17, 501:6-11, • 503:20-504:3, 507:2-19, 508:14-509:2, 512:22-513:3, 517:1-6, 520:21-521:5, 552:16-23). 22. FASA continues to publish Mr. Loose’s drawings of the licensed designs as an integral part of the BATTLETECH universe: they appear in most FASA publications. (Loose Tr. 520:2-17). 23. Those BATTLETECH designs created by FASA’s successor designer, Mr. Knut-son, also tried to get away from a human form look. (Knutson Declaration (“Deel.”); Tr. 635:1-637:8). Mr. Knutson wanted to put his own “stamp” on the BATTLETECH designs he created. (Knutson Decl.; Knutson Tr. 641-42). 24. During 1986, FASA created and introduced nine new BATTLETECH products. (PGX 3, 94). In April of 1986, BATTLE-TECH Map Set #1 was released. (PGX 3A). The first BATTLETECH novel, Decision At Thunder Rift was introduced in July of 1986. (PGX 3B). In August of 1986, FASA released BATTLETECH Technical Readout 3025 (PGX 3C), followed by BATT-LETECH Blueprints (PGX 3H) and two new boxed games, AEROTECH (PGX 3G) and CITYTECH (PGX 3F). FASA also introduced MECHWARRIOR, The Role-Playing Game (PGX 3D) in August of 1986, a graphic novel called The Spider and The Wolf (PGX 31) in September of 1986 and another scenario pack called Cranston Snord’s Irregulars (PGX 3K) in November of 1986. Each product contained original text and/or artwork and sometimes incorporated text or art from previous BATTLETECH products, including, on occasion, FASA’s interpretation of several of the designs licensed from TCI. Each product contained a proper copyright notice. (Weisman Tr. 276-320). 25. The BATTLETECH Technical Readout 3025 received the 1986 H.G. Wells Award for Best Role-Playing Game Supplement. The H.G. Wells Awards are nominated by members of the Academy of Adventure Gaming Arts and Design and voted on by the general gaming public. They are presented each year at the ORIGINS game convention. (PX 417; Weisman Tr. 286, 292-93; Schick Deck). 26. By the end of 1986, BATTLETECH had established itself as one of the best selling science fiction games on the market with retail sales exceeding $1 million. (PX 73A, 80-84; Weisman Tr. 289-96; Stevers Deck). 27. FASA expanded the BATTLETECH universe in 1987 with the creation and release of 14 new products (PGX 4; PX 94), including: Grey Death Legion, a scenario book, in Jan., 1987 (PGX 4A) The Sword and The Dagger, a novel, in Feb., 1987 (PGX 4B) Mercenary’s Handbook,, a sourcebook, in Feb., 1987 (PGX 4C) BATTLEFORCE, a boxed game, in April, 1987 (PGX 4D) BATTLETECH Reinforcements, a game accessory, in June, 1987 (PGX 4E) BATTLETECH Map Set # 2, a game accessory, in June, 1987 (PGX 4F) House Steiner, a source book, in July, 1987 (PGX4G) Mercenary’s Star, a novel, in Aug., 1987 (PGX 4H) The Succession' Wars, a boxed game, in Aug. 1987 (PGX 41) Technical Readout 3026, a source book, in Aug. 1987 (PGX 4K) BATTLETECH Mamad, a rulebook, in Aug. 1987 (PGX 4J) Sorenson’s Sabres, a scenario pack, in Nov. 1987 (PGX 4M) Kurita: The Draconis Combine, a source book, in Nov. 1987 (PGX 4N) The Gaiter Campaign, a scenario book, in Nov. 1987 (PGX 4L). Each product contained original text and/or artwork and sometimes incorporated text or art from previous BATTLETECH products, including FASA’s interpretations of several of the designs licensed from TCI. Each product contained a proper copyright notice. (Weisman Tr. 295-310; Lewis Deck). 28. BATTLETECH won the 1987 Gamer’s Choice Award for the Best Science Fietion/Strategy Game at the 1987 GenCon Convention, the oldest and largest game convention in the world. (Lewis Deck). B. Development of Virtual Reality 29. In 1987, the founders of FASA spun off a sister company called Environmental Simulation Project, Inc. (“ESP”) (subsequently known as Virtual World Entertainment), which was dedicated to the design, creation, development and construction of the world’s first multi-player, real time simulator allowing consumers to explore and interact with the BATTLETECH universe in a computer generated “Virtual Reality.” (PX 409-13; Weisman Tr. 299-305). 30. On June 17,1987, FASA entered into an Agreement with Incredible Technologies, a computer development firm for the creation of hardware and software for ESP’s BATT-LETECH project. Under the terms of that Agreement, all tangible and intangible products of Incredible Technologies’ development work, including graphic materials, automatically became the sole property of FASA (along with any patent or copyright rights) upon FASA’s corresponding payment for such work. (PX 37, 47; Weisman Tr. 302-03). 31. As ESP began-to develop the BATT-LETECH Virtual Reality game, FASA continued to expand the BATTLETECH universe by creating new MECH designs and new BATTLETECH products. In 1988, FASA created two new MECHs for a source-book entitled House Liao. The Raven and the Cataphract were the original creations of FASA employee Todd Marsh. (PX 96; PGX 58; Lewis Decl.). 32. In 1988, FASA created and introduced twelve new BATTLETECH products (PX 94, PGX 5): The Pnce of Glory, a novel, in Jan. 1988 (PGX 5A) House Liao, a source book, in Feb. 1988 (PGX 5B) Dropships and Jumpships, a source book, in Feb. 1988 (PGX 5C) House Davion, a source book, in June 1988 (PGX 5D) Warrior En Guard, a novel, in July, 1988 (PGX 5E) Rolling Thunder, a scenario book, in July, 1988 (PGX 5F) Warrior Riposte, a novel, in July, 1988 (PGX 5G) Shrapnel, a short story collection, in Aug. 1988 The Periphery, a source book, in Sept., 1988 (PGX 5H) The Kell Hounds, a scenario book, in Dec., 1988 (PGX 51) PlasTech Mechs, a game accessory, in Dec. 1988 (PGX 5J) Cammo Specs, a game accessory, in Dec. 1988 (PGX 5K). Each product contained original text and/or artwork and sometimes incorporated text or art from previous BATTLETECH products, including, on occasion, FASA’s interpretations of several of the designs licensed from TCI. Each product contained a proper copyright notice and complied with all statutory copyright formalities. (Weisman Tr. 319-25; Lewis Decl.). 33. In 1989, FASA added 25 new MECHs to its growing collection of original MECH designs. Created by Dana Knutson, a FASA employee, the following MECHs were first featured in Wolfs Dragoons, a source book released in April of 1989 (PGX 6E): Falcon, Firefly, Flea, Hoplite, Hornet, Imp, Shogun and Wolfhound. Of these, the Flea and the Falcon were based on an original sketch created by Ral Partha, FASA’s BATTLE-TECH miniatures licensee, which assigned all right, title and interest in the design to FASA. (PX 96; Knutson Decl.; Lewis Decl.). 34. FASA employee Knutson also designed new MECHs for the source book entitled Technical Readout 2750 (PGX 61). These MECHs included: Black Knight, Champion, Crab, Crockett, Exterminator, Flashman, Hermes, Highlander, Hussar, King Crab, (depicted in Appendix A), Kinta-ro, Lancelot, Mongoose, Sentinel, Thorn, Thug and Wyvern. (PX 96; Lewis Deck; Knutson Decl.). Of these, the Black Knight, Crab, Highlander, King Crab, Lancelot, Mongoose, Thug and Wyvern were based on original sketches created by Ral Partha, FASA’s BATTLETECH miniatures licensee, which assigned all right, title and interest in the designs to FASA. (PX 96; Knutson Decl.; Lewis Decl.). 35. Many of the original designs created by Knutson are distinguished by the de-emphasis of the head, in contrast to the Japanese designs which frequently featured a head with antennae. Unless otherwise required by the writer, the Knutson designs incorporate a head lowered into the body or appear headless, with a torso that resembles a spaceship or a tank on legs. Knutson also attempted.to carry On the technical realism of the look created by Duane Loose for FASA. (Knutson Deck; Tr. 641-42). 36. Knutson created MECHs for FASA based upon the written description provided by the writers of the BATTLETECH fiction, which included specifics about the size, fire power, and other attributes of the MECH. (Knutson Deck). 37. In 1989, FASA created and released 10 new BATTLETECH products (PX 94; PGX 6): Wolves on the Border, a novel, in Jan.,. 1989 (PGX 6B) The Star League, a source book, in Jan., 1989 (PGX 6A) Warrior Coupe, a novel, in Jan., 1989 (PGX 6C) The War Book — Part I, a source book, in Feb., 1989 (PGX 6D) Wolfs Dragoons, a source book, in April, 1989 (PGX 6E) Heir to the Dragon, a novel, in June, 1989 (PGX 6G) BattleTech 20 Year Update, a source book, in June, 1989 (PGX 6F) BATTLETROOPS, a boxed game, in Aug., 1989 (PGX 6H) Technical Readout 2750, a source book, in Aug., 1989 (PGX 61) War Book II, a source book, in Sept., 1989 (PGX6K). Each product contained original text and/or artwork and sometimes incorporated text or art from previous BATTLETECH products, including, on occasion, FASA’s interpretations of several of the designs licensed from TCI. Each product contained a proper copyright notice. (Lewis Deck). 38. In 1989, FASA also laid the groundwork in the fiction of the BATTLETECH universe for the introduction of new MECHs created for the Virtual Reality game. The fictional premise involved the coming of the Clans, groups of strange, aggressive military forces from beyond the Periphery or outer edges of the known space. The Clans used an advanced eugenics program to breed a specialized group of elite warriors to phot OMNIMECHs (Clan MECHs) and Aerospace fighters. The Clans also introduced a new type of combatant into the BATTLE-TECH universe known' as an Elemental. These genetically bred human beings stood over eight feet tall and possessed superior strength and speed. Equipped with individual battle armor suits, known as Elemental suits, a small group of Elementáis was capable of bringing down a single MECH. The Clans (and the Elementáis) added a completely new dimension to the BATTLE-TECH universe by permitting new conflict and combat. 39. Although FASA had planned to incorporate all of FASA’s original MECH designs into the BATTLETECH Virtual Reality game, programmers encountered difficulty in reproducing the large number and variety of MECHs existing in the BATTLETECH universe. As a result, Incredible Technologies and FASA created the OMNIMECHs. 40. The first of the OMNIMECHs was an original design known as the Mad Cat, which is depicted in Appendix B. The Mad Cat was designed to be lighter, faster, stronger and more flexible than other BATTLETECH MECHS. (Weisman Tr. 311-13). BATT-LETECH fans received their first glimpse of the Mad Cat in a newsletter in the summer of 1988. (PX 155). 41. The Mad Cat and other Clan OMNI-MECHs were created by Tim Skelly, a software programmer employed by Incredible Technologies, under the direction of FASA founders Jordan Weisman and Ross Bab-cock. (Weisman Tr. 310-18; Babcock Dep.). Once developed on the computer, the Mad Cat image was translated by an artist, Steve Venters, an independent contractor of FASA, into a full scale design and incorporated, along with the three other OmniMech designs (Thor, Vulture, and Loki) developed for the Virtual Reality game, into the BATTLE-TECH game systems, supplements, novels and other products. (PX 806-09; Weisman Tr. 317-19; Venters Deck; Lewis Deck). 42. Steve Venters’ remaining OmniMech designs (Black Hawk, (depicted in Appendix C); Daishi, (depicted in Appendix D); Dasher (depicted in Appendix E); Dragonfly; Fenris; Gladiator; Koshi, (depicted in Appendix F); Man O’War; Masakari; Puma; Ryoken and Uller), were also original creations. Venters’ goal in creating his designs was to make the MECHs symmetrical and based on basic shapes and combinations of basic shapes. His designs were intended to look as if the MECHs were actually built by machines. Further, his designs were realistic in the sense that they were not true science “fiction” but “science projection”— something that may actually develop in the future. (Venters Deck). 43. Steven Venters assigned to FASA all his right, title and interest in the designs he created for FASA. (Venters Deck). 44. The Mad Cat made its virtual reality debut in August of 1990 with the opening of The BATTLETECH Center Virtual Reality Entertainment Center at North Pier in Chicago, Illinois. (Weisman Tr. 330-36). 45. The BATTLETECH Center was the first generation of a new genesis of electronic entertainment, which has come to be known as ‘Virtual Reality.” After a briefing in the ready area of the Center, the consumer is seated in a jet fighter style cockpit designed to represent the control center of his own BATTLEMECH. • The cockpit contains a variety of monitors, switches, buttons and lighted displays. The consumer “moves” the MECH in the computer generated environment through the use of a throttle and joystick. As the MECH moves, a large television monitor in the cockpit shows the changing terrain outside. The consumer can explore one hundred square miles of an alien world, complete with canyons, obstacles, changing weather patterns, friendly MECHs, and enemy MECHs. The consumer operates the MECH’s weapons system through various triggers and buttons on bpth a joystick as well as on auxiliary instrument panels throughout the cockpit. The game is completely interactive with play determined by the strategies and tactics of up to eight different consumers participating in the same battle simulation. (Weisman Tr. 319-28; Babcock Dep.). 46. The BATTLETECH Center not.only utilized the characters, storylines, images, designs, descriptions and characteristics created and developed by FASA for BATTLE-TECH, it also added to that continually evolving universe. (Weisman Tr. 310-40; Lewis Deck). 47. Virtual World Entertainment offers the BATTLETECH game at the BATTLE-TECH Center and at Virtual World Centers pursuant to a license from FASA. (Weisman Tr. 332-39). 48. The BATTLETECH virtual reality game is currently featured at Virtual World Centers located in San Francisco, San Diego, Houston, Las Vegas, Atlanta, Sydney, Australia, Tokyo and Yokohama, Japan. (Weis-man Tr. 335). 49. Since the opening of The BATTLE-TECH Center, Virtual World Entertainment estimates that its sales attributable to BATT-LETECH exceed $5,000,000. (PX 402-08; Weisman Tr. 408). 50. The image of the Mad Cat is featured prominently on signs both inside and outside The BATTLETECH Center and Virtual World Centers. The image of the Mad Cat is also used extensively in promotional literature (for FASA and these Centers), which receives wide distribution throughout the United States. In addition, the Mad Cat has been fully incorporated into the BATTLE-TECH game systems and appears numerous times in source books, supplements, rules manuals and technical readouts as well as on posters, pins and other BATTLETECH products. (PX 95; Weisman Tr. 336-37; Lewis Deck). 51. Since the opening of The BATTLE-TECH Center, BATTLETECH and the BATTLETECH virtual reality game have received extensive unsolicited media coverage. BATTLETECH has been featured in television coverage on national news and entertainment programs, and in articles in the New York Times, Wall Street Journal, Los Angeles Times, Chicago Tribune, Time Magazine, Sports Illustrated, Business Week and Entertainment Weekly, among hundreds of others. (PX 400-01; Weisman Tr. 321-28; Morris Deck). 52. As Virtual World Entertainment promoted BATTLETECH through its virtual reality game, FASA created and introduced 28 new BATTLEMECHs in 1990. Joel Biske, a FASA employee, created Axman, Caesar, Grand Dragon, Hatamoto-Chi and Wolf Trap. Dana Knutson, FASA’s Art Director, created Annihilator, Katana, Mercury and Nightsky. Jim Nelson, a FASA employee, created the Clan Elemental suit, Guillotine and Mauler. Steve Venters, an independent contractor hired by FASA, translated the computer images of the Mad Cat, Lóki, Thor and Vulture, into full scale designs. The original designs from Biske, Knutson, Nelson and Venters were all first published in the BATTLETECH Technical Readout S050 released in April of 1990. (PGX 7B; PX 96,115,122,124,128; Lewis Deck; Biske Deck; Knutson Deck; Venters Deck). 53. The Clan Elemental suit (depicted in Appendix G) was created to look humanoid, unusual and distinct from anything else in the BATTLETECH universe. (Nelson Deck). However, the Clan Elemental Suit borrows heavily from various prior powered body suits including specifically the Storm Trooper suit, which was first used in 1976 during the initiation of the Star War trilogy movies. (DX 501; Macek Tr. 1104-05; Ro-vin Deel.; Appendix G). 54. In addition to Technical Readout 3050 (PGX 7B), FASA created and introduced eight new BATTLETECH products in 1990 (PGX 7; PX94): 4th Succession War, a scenario book, in Jan., 1990 (PGX 6L) Lethal Heritage, a novel, in Feb., 1990 (PGX 7A) The Battle for Twycross, a scenario book, in June, 1990 (PGX 7C) THE BATTLETECH Compendium, a rule book, in July, 1990 (PGX 7E) House and Clan Patches, an accessory, in July, 1990 (PGX 7D) BATTLETECH Reinforcements 2, a game accessory in Sept., 1990 (PGX 7F) Blood Legacy, a novel, in Nov., 1990 (PGX 7G) More Tales of the Black Widow, a scenario book, in Nov. 1990 (PGX 7H). Each product contained original text and/or artwork and sometimes incorporated text or art from previous BATTLETECH product, including on occasion FASA’s interpretations of several of the designs licensed from TCI. Each product contained a proper copyright notice. 55. The BATTLETECH Compendium, a comprehensive rulebook released in 1990, received the 1990 ORIGINS Award for Best Miniature Rules. (Lewis Deck). 56. In 1991, FASA added another fourteen original MECH designs to the BATT-LETECH universe, four of which were created by Kadakowa Shoten, FASA’s Japanese licensee. In addition, Jeff Laubenstein, a FASA employee, created Cudgel, Daedaeus, Juggernaut, Longshot, Onslaught, Paladin, Mantis and Ronin. All of these MECHs were featured in a new BATTLETECH boxed game caUed SOLARIS VII (PGX 8M). Dana Knutson, FASA’s Art Director, also created Excalibur and Spartan in 1991 for a scenario book entitled Rhonda’s Irregulars (PGX 8N). (PX 96, 115; Lewis Deck; Lau-benstein Deck; Knutson Deck). 57. In 1991, FASA created and published 18 new products for the BATTLETECH universe (PGX 8; PX 94): BATTLETECH OmniMeeh Blueprints, an accessory, in Jan., 1991 (PGX 8A) BATTLETECH Map Set # 3, a game accessory, in Feb., 1991 (PGX 8B) BATTLETECH Record Sheets: Vol. 1, a game accessory, in March, 1991 (PGX 8C) House Marik, a source book, in April, 1991 (PGX 8D) BATTLETECH Record Sheets: Vol. 2, a game accessory, in April, 1991 (PGX 8E) BattleTech Map Set # 4, a game accessory, in May, 1991 (PGX 8F) BATTLETECH Record Sheets: Vol. 3, a game accessory, in July 1991 (PGX 8G) Assault Record Sheets: Vol. 4, a game accessory, in Aug., 1991 (PGX 8H) Mechwarrior — 2nd Edition, a rule book, in Aug., 1991 (PGX 81) Lost Destiny, a novel, in Sept., 1991 (PGX 8K) Way of the Clans, a novel, in Sept., 1991 (PGX 8 J) Wolf Clan Sourcebook, a source book, in Oct., 1991 (PGX 10Q) Blood Name, a novel, in Oct., 1991 (PGX 8L) Solaris VII, a boxed game, in Nov., 1991 (PGX8M) Rhonda’s Irregulars, a scenario book, in Nov., 1991 (PGX 8N) BATTLETECH Reinforcement Record Sheets, a game accessory in Dee., 1991 (PGX8P) Falcon Guard, a novel, in Dec., 1991 (PGX 8Q) Clan Troops, a game accessory, in Dee., 1991 (PGX 8R). Each product contained original text and/or artwork and sometimes incorporated text or art from previous BATTLETECH products, including, on occasion, FASA’s interpretations of several of the designs licensed from TCI. Each product contained a proper copyright notice and complied with all statutory copyright formalities. (Lewis Deck). 58. FASA commissioned the creation of over 70 original MECH designs in 1992 and 1993. At least 55 of these new original MECH designs first appeared in a new source book entitled Technical Readout 3055 (PGX 9E), and sixteen of these designs were created by FASA’s Japanese licensee, JVC. These new MECH designs were the original creations of three FASA employees: Joel Biske, Dana Knutson and Mike Nielson. Biske created Cerberus, Gunslinger, Hitman, Tempest and Wraith. Knutson created Anvil, Apollo, Bandersnatch, Battle Hawk, Ber-serker, Daikyu, Daimyo, Dart, Falconer, Gal-lowglas, Grim Reaper, Hammer, Hercules, Huron Warrior, Jackal, Komodo, Linebacker, Penetrator, Phantom, Pouncer, Salamander, Scarabus, Snake, Stealth, War Dog and Watchman, Epimetheus, Prometheus, Wildfire, Spector and Starslayer. Mike Nielson created Albatross, Devastator, Grand Titan, Rakshasa, Thunder and Venom. (PX 96; Lewis Deel.; Biske Deck; Knutson Deck). 59.In 1992, FASA created and released 12 new BATTLETECH products (PGX 9; PX 94): Objective Raids, a source book, in Jan. 1992 (PGX 9B) Unbound, a scenario book, in Jan. 1992 (PGX 9A) Bloodright, a scenario book, in March, 1992 (PGX 9C) Wolfpack, a novel, in April, 1992 (PGX 9D) Technical Readout 3055, a source book, in May, 1992 (PGX 9E) Mercenary’s Handbook, a source book, in June, 1992 (PGX 9F) Natural Selection, a novel, in June, 1992 (PGX 8S) • McCarron’s Armored Cavalry, a scenario book, in July, 1992 (PGX 9G) Jade Falcon, a source book, in July, 1992 (PGX 9H) BATTLETECH Record Sheets: 3055, a game accessory, in Aug., 1992 (PGX 91) Comstar, a source book, in Oct., 1992 (PGX 9K) Null Set, a scenario book, in Nov., 1992-(PGX 9J). Each product contained original text and/or artwork and sometimes incorporated text or art from previous BATTLETECH products, including, on occasion, FASA’s interpretations of several of the designs licensed from TCI. Each product contained a proper copyright notice and complied with all statutory copyright formalities. (Lewis Deck). 60. In 1993, FASA added 6 new MECHs to the BATTLETECH universe. FASA employee Mike Nielson created Sasquatch, Werewolf, Cauldron-Born, Hankyu, Nobori-Nin and Copperhead. (Knutson Deck, Lewis Deck). 61. In 1993, FASA created and released 15 new BATTLETECH products (PGX 10; PX 94): BattleMechs, a game accessory, in Feb. 1993 (PGX 10A) Ideal War, a novel, in March, 1993 (PGX 10B) BATTLETECH Intelligence Operation Handbook, a source book, in March, 1993 (PGX 10C) Blood of Heroes, a novel, in May, 1993 (PGX 10D) BATTLETECH ROC Poster, a poster, in July, 1993 (PGX 10E) BattleMech Recognition Cards, a game accessory, in July, 1993 (PGX 10F) Assumption of Risk, a novel, in July, 1993 (PGX 10G) Day of Heroes, a scenario book, in July, 1993 (PGX 10H) BATTLESPACE, a boxed game, in Aug., 1993 (PGX 10J) Far Country, a novel, in Aug., 1993 (PGX 10K) Solaris: The Reaches, a game accessory, in Sept. 1993 (PGX 10L) BATTLETECH, 3rd Edition, a boxed game, in Sept., 1993 (PGX 10M) Vehicle Record Sheets, a game accessory, in Oct., 1993 (PGX ION) Hot Spots, a scenario book, in Oct., 1993 (PGX 10P) Luthien, a scenario book, in Dec., 1993 (PGX 10Q). Each product contained original text and/or artwork and sometimes incorporated text or art from previous BATTLETECH products, including, on occasion, FASA’s interpretations of several of the designs licensed from TCI. Each product contained a proper copyright notice and complied with all statutory copyright formalities. (Lewis Deck). 62. The Third Edition of the BATTLE-TECH Game, released in 1993, received the ORIGINS Award for Best Graphic Presentation of a Board Game. (PGX 10M, Lewis Decl.). 68.In 1994, FASA created and released 14 new BATTLETECH products containing more new original MECH designs (PGX 11; PX 94): 4th OmniMech Poster Set, an accessory, in Feb., 1994 (PGX 11A) D.R.T.-Dead Right There, a novel, in March, 1994 (PGX 11B) BATTLETECH Tactical Handbook, a rule book, in March, 1994 (PGX 11C) BATTLETECH 1994 Posters, an accessory, in March, 1994 (PGX 11D) Main Event, a novel, in May, 1994 (PGX 11E) Technical Readout S057, a source book, in June, 1994 (PGX 11F) Tukayyid, a scenario book, in July, 1994 (PGX 11G) Close Quarters, a novel in July, 1994 (PGX 11H) BATTLETECH Compendium: Rules of Warfare, a rule book, in July, 1994 (PGX IIJ) Bred for War, a novel, in Aug., 1994 (PGX IIK) Royalty & Rogues, a scenario book, in Oct., 1994 (PGX 11M) The Black Thoms, a scenario book, in Nov., 1994 (PGX HP) The Invading Clans, a source book, in Nov., 1994 (PGX 11N) CityTech — 2nd Edition, a boxed game, in Dee., 1994 (PGX 11Q). Each product contained original text and/or artwork and sometimes incorporated text or art from previous BATTLETECH products, including, on occasion, FASA’s interpretations of several of the designs licensed from TCI. Each product contained a proper copyright notice. (Lewis Decl.). 64. In 1994, FASA added 9 new MECHs to the BATTLETECH universe. FASA employee Nielson created Grendel, Kingfisher, Shadow Cat, Shootist, Grizzly, Kodiak, Piranha, Super Nova and Thresher. 65. Since 1985, FASA has licensed and continues to actively license aspects of the BATTLETECH universe to third parties for use in thé creation, development, manufacturing, publication and distribution of additional BATTLETECH products. Licensees have included: Ral Partha for lead and pewter miniature models (since 1985) (PX 27-32); Nova games for flip books (1987) (PX 35); Pacific Rim Publishing for BattleTechnology Magazines (since 1987) (PX 40, 41, 45, 56); Activision/Mediagenic for computer disk games (since 1987) (PX 36, 42, 46); Shield Laminating for personnel files (1988) (PX 43); ESP/Virtual World Entertainment for virtual reality simulation games (since 1987) (PX 61); New American Library, and ROC/Penguin Books for novels (since 1990) (PX 48, 51, 63); Kesmai for on-line games (since 1991) (PX 55); Horizon for a Mad Cat vinyl model (1992) (PX 59); Tyco for BATT-LETECH toys (since 1993) (PX 64); and Saban Entertainment for a BATTLETECH animated series (since 1993). (Lewis Decl.). C. Sales Of The BATTLETECH Property 66. FASA’s domestic sales of BATTLE-TECH products since 1984 exceed $13 million. (PX 72, 73, 73A; Lewis Deck; Lewis Tr. 755). FASA has sold approximately 234,-000 basic BATTLETECH role playing games. 67. Domestic sales of BATTLETECH novels by FASA licensee ROC/Penguin Books since 1991 total $2.3 million. (PX 75; Lewis Decl.). 68. Domestic sales of miniature lead or pewter models of BATTLETECH MECH designs by FASA licensee Ral Partha since 1985 total $4.8 million. (PX 76; Lewis Decl.). 69. Domestic sales of BATTLETECH computer games by FASA licensee Activision/Mediagenic since 1987 exceed $5 million. (PX 77; Lewis Decl.). 70. Domestic sales of BATTLETECH online games by FASA licensee Kesmai since 1991 total $1.2 million. (PX 78; Lewis Decl.). 71. Since 1987, FASA has also executed agreements to distribute BATTLETECH products worldwide. Distributors include: Jedko for Australia and New Zealand (since 1987) (PX 65); TM Games (England) (since 1988); Fantasy Products (Germany) (since 1988) (PX 66); Disenos Orbitales (Spain) (1990-93) (PX 67); Olive Books of Israel (Israel) (since 1990) (PX 68); Publicacoes (Portugal) (since 1991) (PX 69); Kadakowa Shoten (Japan) (since 1992); Zinco (Spain) (since 1993); and Jeux Descartes (France) (since 1993). (Lewis Deck). 72. Japanese sales of BATTLETECH products since July of 1992 exceed an estimated $1 million. (PX 79; Lewis Decl.). 73. In the ten years since its introduction, BATTLETECH has been the subject of countless advertisements placed by FASA in science fiction and game publications. It has also been featured in articles and reviews appearing regularly in those publications. (PGX 71; PX 795; Lewis Deck; Morris Deck; Doetorow Deck; Weisman Tr.; Bab-cock Dep.; M. Weisman Dep.). 74. In the ten years since the introduction of BATTLETECH, FASA has published and distributed throughout the United States yearly catalogues (with additional seasonal updates) featuring BATTLETECH products as well as promotional brochures and posters for the genéral public and trade. (PGX 12, 13,18; J. Weisman Tr. 370-85; Lewis Deck). 75. BATTLETECH products have also been featured in catalogues and promotional materials distributed throughout the United States by its licensees, including ROC/Penguin Books, Ral Partha and Activision. (PGX 14,16,17; PX 15; Lewis Deck). D. Recognition of BATTLETECH Among the Relevant Consumers 76. At the present time, the BATTLE-TECH game is primarily enjoyed by male enthusiasts between the ages of 12 and 22 who are highly literate. With the distribution of the BATTLETECH game in computer software and other media, the starting age and level of education for players may eventually be lower. 77. FASA sponsors a BATTLETECH fan club for game enthusiasts, which has had as many as 3,000 members at a time in the United States alone. 78. FASA sponsors tournaments and events at annual gaming conventions around the country, the largest of which draws as many as 20,000 attendees. 79. FASA stays in very close contact with its fans, fielding questions and comments by mail, telephone and on-line services from approximately 5,000 individuals each year. A new Internet home page location sponsored by VWE for the BATTLETECH game currently is receiving approximately 3,000 “visits” each week. E. Originalitg and Distinctiveness of the BATTLETECH Property 80. FASA’s BATTLETECH universe is composed of a large number of diverse MECH designs. (PX 186). Unlike the Japanese giant robot genre, which has only one category of giant robot, FASA’S MECH designs fall into the general categories of BATTLEMECH and OMNIMECH, each of which may be divided into four types: light, medium, heavy and assault. Each is portrayed as realistically being able to perform in accordance with detailed specifications, allowing the player to temporarily suspend his or her disbelief within the fictional setting. 81. FASA’s BATTLETECH universe places these diverse designs in the context of a science fiction story with a unique combination of elements. While other science fiction works have included futuristic battle involving giant warrior robots piloted by conventional (i.e., hand and foot) controls or plug-in connections, the BATTLETECH ME-CHWARRIORs control their MECHs through a hybrid of neural link (i.e., brain waves) and conventional controls. 82. Philip Johnson of Leo J. Shapiro and Associates, Inc. conducted a survey of 200 consumers of role playing and other games. The survey sample was limited to role playing and virtual reality game players from around the country, a group estimated to be approximately two to three million individuals. (Johnson Deck; PX 145). Ninety percent of the respondents purchased a model, toy, figurine, or miniature in the past two years and/or expect to do so in the coming two years. (Id.). 83. Each respondent of the Johnson survey was shown elements of the BATTLE-TECH property that FASA believes have acquired secondary meaning, including the setting in which the story takes place, the robotic vehicles that are used for fighting, and the MECHWARRIORs and Clan Ele-mentáis who pilot these craft. (PX 415). The questionnaire and interviewing procedures of the survey design were conducted in accordance with generally-accepted standards of objective procedure and survey technique. The interviewing methodology was a “double-blind” design, whereby neither the respondents nor the interviewers knew the purpose of the study. (PX 415; Johnson Deck). However, the Court notes that this survey was specifically limited by FASA to role playing, virtual reality game players. (Johnson Tr. 826-31; Mantis Deck). 84. Overall, two out of three (67%) of the survey participants identified BATTLE-TECH7FASA as the source of the elements depicted in the exhibit that they were shown. This level of source identification indicates that there is some secondary meaning for the elements that are used in the BATTLE-TECH property, including the setting in which the story takes place, the robotic vehicles that are used for fighting, and the ME-CHWARRIORs and Clan Elementáis who pilot these craft. (PX 415; Johnson Deck). F. Copyright Registrations 85. FASA is the owner of the following Certificates of Registration from the United States Copyright Office, among many others, issued more than five years after first publication of the work: (a)TX-3-524-175 — BattleTech: A Game of Armored Combat Second Edition (PX 110) This boxed game was the first product to carry the BATTLETECH name when it was released in 1985. The scope of this copyright includes the game mechanics and statistics, fictional text and artwork which depict the history of the BATTLETECH universe, including, among other things, the MECHs, the neural link and hand/foot controls for piloting the MECHs, the weaponry, and the pirates on the edge of known space (the “Periphery”). All of the MECHs included in this work are FASA renditions of the Japanese images licensed from Twentieth Century Imports (the “TCI designs”). (b) TX-3-679-891 — City Tech: The Battle-Tech Game of Urban Combat (PX 111) This boxed game, released in 1986, provides specialized rules for playing the BATTLETECH game in an urban environment. The scope of this copyright includes the game mechanics and statistics, fictional text and artwork new to this work as well as game mechanics and statistics, fictional text and artwork created by FASA for other BATTLETECH products and included in this work. The copyright also covers three original FASA MECH designs: Hunchback, Spider and Stalker. The playing pieces for the game reflect both the original FASA MECHs as well as the TCI designs. (c) TX-3-616-379 — BattleTech Technical Readout 3025 (PX 103) This source book, released in 1986, was the first “technical readout,” describing and illustrating MECHs, vehicles, and spacecraft from the 3025 era. The scope of this copyright includes the fictional text, artwork and game statistics new to this work as well as fictional text, artwork and game statistics created by FASA for other BATTLETECH products and included in this work. The copyright also covers new MECHs created by FASA (Assassin, Atlas, Awesome, Banshee, Blackjack, Catapult, Centurion, Charger, Cicada, Clint, Commando, Cyclops, Dervish, Dragon, Enforcer, Firestarter, Grasshopper, Hatch-etman, Hermes II, JagerMech, Javelin, Jenner, Orion, Panther, Quickdraw, Tre-buchet, UrbanMeeh, Valkyrie, Victor, Vindicator, Vulcan, Whitworth and Zeus) along with other vehicles and spacecraft. (d) TX-3-626-452 — Mechwarrior: The BattleTech Role Playing Game (PX 105) This book was released in 1986 and provides the rules for role playing in the BATTLETECH' universe in the 3025 era. The scope of this copyright includes the game mechanics and statistics, fictional text and artwork new to this work as well as game mechanics and statistics, fictional text and artwork created by FASA for other BATTLETECH products and included in this work. The copyright also covers several MECH designs original to FASA as well as uniforms, equipment and weapons. (e) TX-3-748-839 — BattleForce: Small Unit Actions in the 31st Century (PX 109) This boxed game was released in 1987 and allows the player to take the role of battalion or regimental commander in the 3025 era. The scope of this copyright includes the game mechanics and statistics, fictional text and artwork new to this work as well as game mechanics and statistics, fictional text and artwork created by FASA for other BATTLE-TECH products and included in this work. The copyright also covers the original FASA MECH designs of Atlas and Cicada, as well as a heavy tank, on the front of the box. The cardboard playing pieces represent groups of MECHs or other combat units bearing the military symbols of their units. (f) TX-3-624-571 — BattleTech Manual: The Rules of Warfare (PX 107) This book, released in 1987, is a compilation of the rules of the BATTLETECH, CITYTECH and AEROTECH games, plus additional optional rules, set in the year 3025. The scope of this copyright includes the game mechanics and statistics, fictional text and artwork new to this work as well as game mechanics and statistics, fictional text and artwork created by FASA for other BATTLETECH products and included in this work. The copyright also includes the original FASA MECH, Atlas, which is featured on the cover. For purposes of this litigation, the scope of this copyright does not include any of FASA’s renditions of the TCI designs which may be depicted in this work. (g)TX-3-626-905 — BattleTech Technical Readout 3026 (Vehicles and Personal Equipment) (PX 106) This source book, released in 1987, is the second “technical readout,” describing the vehicles and personal equipment in the BATTLETECH universe in the year 3026. The scope of this copyright includes the game mechanics and statistics, fictional text and artwork new to this work as well as game mechanics and statistics, fictional text and artwork created by FASA for other BATTLETECH products and included in this work. The copyright also includes the exoskeleton mechanical hardware created by FASA as a precursor to the Elemental suit. 86. FASA is the owner of the following Certificates of Registration from the United States Copyright Office, among many others, issued within five years after first publication of the work: (a) TX-3-685-465 — BattleTroops: A Game of Urban Man-to-Man Combat in the BattleTech Universe (PX 108) This boxed game was released in 1989 and allows the player to simulate man-to-man infantry combat in the BATTLE-TECH universe in the 3025 era. The scope of the copyright includes the game mechanics and statistics, fictional text and artwork new to this work as well as game mechanics and statistics, fictional text and artwork created by FASA for other BATTLETECH products and included in this work. The copyright also includes the cover art depicting infantry and a destroyed MECH on the battlefield. For purposes of this litigation, the scope of this copyright does not include any of FASA’s renditions of the TCI designs that may be depicted in this work. (b) TX-3-631-325 — BattleTech Technical Readout 2750 (PX 102) This source book, released in 1989, is the third “technical readout,” describing and illustrating MECHs, vehicles and spacecraft from the Star League era. The scope of the copyright includes the game mechanics and statistics, fictional text and artwork new to this work as well as game mechanics and statistics, fictional text and artwork created by FASA for other BATTLETECH products and included in this work. The copyright also covers numerous MECHs created by FASA (Black Knight, Champion, Crab, Crockett, Exterminator, Flashman, Hermes, Highlander, Hussar, King Crab, Kintaro, Lancelot, Mongoose, Sentinel, Thorn, Thug, Wyvern) along with other aerospace fighters, combat vehicles, warships and personal equipment. For purposes of this litigation, the scope of this copyright does not include any of FASA’s renditions of the TCI designs that may be depicted in this work. (c) TX-3-478-047 — BattleTech Technical Readout SOSO (PX 100) This source book, released in 1989, is the fourth “technical readout”, describing and illustrating MECHs from the 3050 era when the Clans and their technology from the Periphery have invaded the Universe. The scope of the copyright includes the game mechanics and statistics, fictional text and artwork new to this work as well as game mechanics and statistics, fictional text and artwork created by FASA for other BATTLETECH products and included in this work. The copyright also covers numerous MECHs created by FASA (Falcon, Firefly, Flea, Hoplite, Hornet, Imp, Shogun, Wolfhound, Axman, Grand Dragon, Hatamo-to-Chi, Wolf Trap, Annihilator, Caesar, Katana, Mercury, Night Sky, Elemental, Guillotine, Mauler, Vulture, Koshi, Loki, Mad Cat, Man O’ War, Masakari, Puma, Ryoken, Thor and Uller). For purposes of this litigation, the scope of this copyright does not include any of FASA’s renditions of the TCI designs that may be depicted in this work. (d) TX-3-478-044 — BattleTech: The Return of Kerensky The Clans are Coming (Poster) (PX 97) The scope of the copyright for this poster, released in 1990, includes the design and depiction of the Mad Cat OMNI-MECH which it features. (e) TX-3-478-045 — The BattleTech Compendium (PX 98) This rule book, released in 1990, is a compilation of all the rules included in the boxed games of BATTLETECH, CI-TYTECH and AEROTECH, as well as additional optional rules and fiction relating to the Clan invasion. The scope of this copyright includes the game mechanics and statistics, fictional text and artwork new to this work as well as game mechanics and statistics, fictional text and artwork created by FASA for other BATTLETECH products and included in this work. The copyright also includes the Mad Cat MECH and an Elemental suit featured on the cover as well as the descriptions and depictions of the Mad Cat, Elemental suit, Thor, Vulture and Ryoken MECHs within the book. For purposes of this litigation, the scope of this copyright does not include any of FASA’s renditions of the TCI designs that may be depicted in this work. (f) TX-3 — 478-048—BattleTech Wolf Clan Sourcebook (PX 101) This reference book, released in 1991, adds to the fiction surrounding the Clans in general and the Wolf Clan in particular. The scope of this copyright includes the game statistics, fictional text and artwork new to this work as well as game statistics, fictional text and artwork created by FASA for other BATT-LETECH products and included in this work. The copyright also includes the culture and military organization of the Wolf Clan as well as the eugenics warri- or breeding program and the societal caste system story elements. In addition, the copyright covers four new MECH designs created by FASA for this work (Linebacker, Naga, Phantom and Pouncer). (g) TX-3-478-046 — Mechwarrior The BattleTech Role Playing Game (Second Edition) (PX 99) This rule book, released in 1991, provides the rules for role playing in the BATTLETECH universe in the 3050 era. The scope of this copyright includes the fictional text, artwork and game mechanics and statistics new to this work as well as game mechanics, fictional text, artwork and game mechanics and statistics created by FASA for other BATTLETECH products and included in this work. The- copyright also includes the Vulture, an original FASA MECH design, together with the interior of a MECH cockpit, on the cover, the illustration of the Mechwarrior neural helmet and the designs of the MECHs and OMNIMECHs depicted therein. (h) TX-3-738-363 — BATTLETECH So-laris VII: The Game World (PX 112) This boxed game, released in 1991, allows the player to simulate gladiatorial MECH combat on the planet of Solaris VII. The scope of this copyright includes the fictional text, artwork and game mechanics and statistics new to this work as well as game mechanics, fictional text, artwork and game mechanics and statistics created by FASA for other BATTLETECH products and included in this work. The copyright also covers four new MECH designs created by FASA licensee, Kadakowa Shoten, including Colossus, Koto, Morpheus- and Tsunami, as well as eight MECH designs created by FASA (Cudgel, Daedalus, Juggernaut, Longshot, Onslaught, Paladin, Mantis and Ronin). (i) TX-3-664-382 — BATTLETECH Technical Readout: 3055 (PX 104) This source book, released in 1992, is the fifth “technical readout,” describing and illustrating additional MECHs from the 3050 era. The scope of the copyright includes the game mechanics and statist tics, fictional text and artwork new to this work as well as game mechanics and statistics, fictional text and artwork created by FASA for other BATTLETECH products and included in this work. The copyright also covers the design and depiction -of numerous MECHs created by FASA (Anvil, Apollo, Bandersnatch, Battlehawk, Berserker, Daikyu, Daimyo, Dart, Falconer, Gallowglas, Grim Reaper, Hammer, Hercules, Hitman, Huron Warrior, Jackal, Komodo, Linebacker, Penetrator, Salamander, Scarabus, Snake, Stealth, Tempest, War Dog, Watchman, Albatross, Grand Titan, Hollander, Naginata, Rakshasa, Thunder and Venom) as well as the designs and depictions of MECHs created by FASA licensee, Victor Musical Industries (“JVC”) (Baboon, Behemoth, Galahad, Goshawk, Hellhound, Jenner IIC, Kraken, Peregrine, Viper, Vixen). 87. With the exception of the original models and images obtained from TCI, all BATTLETECH images, designs and-products, including the characters, designs, fictional text, statistics and other features, were created by FASA employees or independent contractors under agreements with FASA that make FASA the sole owner of all rights to BATTLETECH products and the BATT-LETECH universe. II. CONCLUSIONS OF LAW — Phase Two A. FASA Has Established Original Expressions Of Ideas That Are Protected By The Copyright Act 1. To prevail on its claims of copyright infringement FASA must, in the first instance, prove ownership of a valid copyright. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358 (1991). A copyright registration certificate, when issued within five years of publication of the work, constitutes prima facie evidence of ownership of a valid copyright. See 17 U.S.C. § 410(c). As pages 29 through 34 of this opinion illustrate, FASA has produced these certificates for some of its designs. The burden is therefore on Playmates to rebut the presumption that FASA is the rightful owner of valid copyrights. In this case, FASA’s ownership of the pertinent copyrights and the validity of these copyrights have not been directly chai-lenged. Instead, P