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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT W. ALLEN, individually
and d/b/a NATIONAL ACADEMIC
v. No. 94-56593
ACADEMIC GAMES LEAGUE OF D.C. No.
AMERICA, INC., a corporation, CV-93-1563-WJR
R. LAWRENCE LISS, an individual,
NEAL GOLDEN, an individual, JAMES OPINION
DAVIS, an individual, STUART E.
WHITE, an individual, JEAN
SKOMRA, an individual, and DOES 1
Appeal from the United States District Court
for the Central District of California
William J. Rea, District Judge, Presiding
Submitted April 9, 1996*
Filed July 12, 1996
Before: Mary M. Schroeder and Edward Leavy,
Circuit Judges, and James T. Trimble,** District Judge.
*The panel unanimously finds this case suitable for decision without
oral argument pursuant to Fed. R. App. P. 34(a) and 9th Cir. R. 34-4.
**The Honorable James T. Trimble, Jr., United States District Judge for
the Western District of Louisiana, sitting by designation.
Opinion by Judge Trimble
Donald G. Norris and Debra K. Butler, Burton & Norris, Pas-
adena, California, for the plaintiff-appellant.
Charles H. Carpenter, Glendale, California, for defendants-
appellees James Davis and Stuart White.
Joseph R. Zamora, Liebman, Reiner & Walsh, Los Angeles,
California, for defendant-appellee Neal Golden.
TRIMBLE, District Court Judge:
Due to a controversy over the use of academic games in a
tournament setting, Robert W. Allen (Allen) individually and
d/b/a National Academic Games Project (NAGP) filed suit
against Academic Games Leagues of America, Inc., R. Law-
rence Liss, Neal Golden, James Davis, Stuart E. White, and
Jean Skomra (collectively referred to as AGLOA) alleging
copyright, trademark, and tradename infringement. AGLOA
filed a motion for summary judgment against Allen's claims
for copyright infringement. The district court granted the
motion and Allen timely appealed.
Since the 1960's, Robert W. Allen has been involved in the
development of academic games, including the games at issue
in this appeal, A MAN CALLED MR. PRESIDENT,1 EURO-
CARD or WORLD CARD,2 linguiSHTIK, 3 and PROPA-
GANDA.4 Allen has been employed in various capacities for
schools and school districts for the purpose of integrating the
subject games, as well as other academic games, into class-
room settings and student competitions. For several years,
middle and high school level students from six states have
participated in national tournaments that Allen conducted
under the name of National Academic Games Project
1 A game testing facts about American Presidents and copyrighted by
Allen in 1970.
2 A game testing history and current events and copyrighted by Allen in
3 A game testing grammar and sentence structure and copyrighted by
Allen in 1991.
4 A game introducing players to propaganda techniques used by politi-
cians and related agencies. The district court found that Allen failed to
establish legal ownership of a copyright for this game.
(NAGP), a sole proprietorship of Allen. The highest number
of students attending a NAGP tournament was 900 in the mid
1980's and approximately 800 students attended the tourna-
ment in 1991.
In 1992, a non-profit corporation, Academic Games League
of America (AGLOA) was formed to conduct a national tour-
nament that used some of Allen's academic games as a culmi-
nation to local and regional student competitions that also
used the subject games during the school year. Prior to form-
ing AGLOA, the individual respondents had significant roles
in the NAGP national tournaments for many years. However,
while each of the individual respondents was principally
involved in AGLOA activities, Allen was not included. In
fact, AGLOA was formed due to a personality conflict that
developed between Allen and the individual respondents and
because of disagreements on how to conduct and develop the
Beginning in April, 1992, AGLOA conducted annual tour-
naments that coincided with Allen's NAGP national tourna-
ment. The tournaments occurred at the same time because of
a need to wait for the completion of local and regional compe-
titions and to accommodate the activities of graduating high
school seniors. The subject games used at the AGLOA tour-
naments were purchased and brought to the tournaments by
the participating students and schools. To date, three AGLOA
tournaments have been conducted involving approximately
500 students, in 1992, to 900 students, in 1994.
At each AGLOA tournament, the subject games were
played under rulebooks developed by an AGLOA committee
that continuously revised the rules to enable students to play
each game under tournament conditions while enhancing stu-
dent educational value and interest in the games. Tournament
rulebooks used at NAGP tournaments were not copyrighted
by Allen and were actually developed and revised by a com-
mittee of persons that consisted primarily of the individual
respondents. While each of the subject games contains a game
manual, AGLOA tournament rulebooks do not repeat the
rules found in the game manuals, but refer to the rules and
elaborate on how each game is to be played in a tournament
Allen derives income from the sale of each of the subject
academic games. AGLOA buys games from Allen to sell
directly to participating schools at cost and does not copy any
of Allen's copyrighted materials in their tournaments. The
only players in AGLOA's leagues are students. Allen has
never objected to the playing or use of his academic games by
students, who have played Allen's games in regional leagues
for over twenty years.
A. Public Performance
 The Copyright Act of 1976 confers upon copyright
holders the exclusive right to perform and authorize others to
perform their copyrighted works publicly. See 17 U.S.C.
S 106(4). "Perform" and "publicly" are defined in the Copy-
right Act as, respectively, "to recite, render, play, dance, or
act it, either directly or by means of any device or progress
. . ." and "to perform or display it at a place open to the public
or at any place where a substantial number of persons outside
of a normal circle of a family and its social acquaintances is
gathered . . . ." 17 U.S.C. S 101. In applying these statutory
definitions to the playing of Allen's games in a tournament
setting, we conclude that the playing of a game is not a
"performance" within the meaning of the Copyright Act.
 Allen maintains that the language of Section 106(4) pre-
cludes AGLOA from conducting their national tournament
because it constitutes a public performance of his protected
literary works, the subject copyrighted games. Allen contends
that a purchaser of a board game only obtains the right to play
the board game in settings that are not "public" because play-
ing or performing the games publicly is a right held exclu-
sively by the copyright holder under S 106(4). However, the
interpretation of "play," as used to define "perform" in S 101
of the Copyright Act, has generally been limited to instances
of playing music or records. See Polygram Intern. Pub., Inc.
v. Nevada/TIG, Inc., 855 F.Supp. 1314, 1321 (D. Mass.
1994); Hickory Grove Music v. Andrew Andrews, 749 F.Supp.
1031, 1036 (D. Mont. 1990), but cf. Red Baron-Franklin
Park, Inc. v. Taito Corp., 883 F.2d 275, 278-79 (4th Cir.
1989), cert. denied, 493 U.S. 1058 (1990), (holding that a
video arcade owner's use of copyrighted circuit boards in
coin-operated video machines available to the public for a fee
constituted public performance of the copyrighted work under
S 106(4)). The term "play" has not been extended to the play-
ing of games. To do so would mean interpreting the Copy-
right Act in a manner that would allow the owner of a
copyright in a game to control when and where purchasers of
games may play the games and this court will not place such
an undue restraint on consumers.
Whether privately in one's home or publicly in a park, it is
understood that games are meant to be "played." In this situa-
tion, the games are being played by students who come
together for the purpose of friendly, academic competition.
There is no indication that this nonprofit corporation,
AGLOA, and the individual respondents are making the sub-
ject games available to the public for a fee. The students,
schools, and school districts use their own games, purchased
from Allen, in the tournaments, and respondents are merely
organizers of this event. Moreover, AGLOA's tournaments
are limited to students who participated in regional competi-
tions which also involved the playing of Allen's games.
 Even if the playing of games could constitute a perfor-
mance, we would have to recognize the applicability of the
fair use doctrine under Section 107 of the Copyright Act. This
section allows the fair use of a copyrighted work in such
instances as for nonprofit educational purposes and where the
effect of the use upon the potential market for or value of the
protected work is limited. As indicated above, AGLOA tour-
naments are held not for profit, but for encouraging education
among young students. The potential market for the subject
games has in all likelihood increased because participants of
the AGLOA tournament have had to purchase Allen's games.
Analysis of other factors involved in S 107 leads this court to
conclude that the application of the fair use doctrine in this
case is clearly appropriate.
B. Derivative Works & The Merger Doctrine
Section 106(2) of the Copyright Act reserves for copyright
holders the exclusive right to prepare derivative works. A
"derivative work" is defined in S 101 as "a work based upon
one or more preexisting works, such as a translation . . . or
any other form in which a work may be recast, transformed,
or adapted. A work consisting of . . . modifications which, as
a whole, represent an original work of authorship, is a `deriva-
tive work.'" The district court found and both parties agree
that the NAGP tournament rulebooks were not copyrighted.
However, because Allen's game manuals to the subject games
have been copyrighted, the issue concerning the AGLOA
tournament rulebooks is whether they are "derivative works"
of Allen's game manuals.
 Allen asserts that to constitute a derivative work, the
infringing work need only incorporate in some form a portion
of the copyrighted material. This court, however, has consis-
tently held that to prove infringement, one must demonstrate
substantial similarity between the works. Litchfield v. Spiel-
berg, 736 F.2d 1352, 1355 (9th Cir. 1984), cert. denied, 470
U.S. 1052 (1985). Although the district court found that some
of the rules discussed in the AGLOA rulebooks were also
found in Allen's game manuals, this court is not convinced
that it is even necessary to consider whether the AGLOA rule-
books in fact constituted "derivative works" under the Copy-
 A copyright only protects a particular expression of an
idea and not the idea itself Mazer v. Stein, 347 U.S. 201, 218
(1954). Thus, ideas contained in a copyrighted work may be
freely used so long as the copyrighted expression is not
wholly appropriated. This is often the case with factual works
where an idea contained in an expression cannot be communi-
cated in a wide variety of ways. Landsberg v. Scrabble Cross-
word Game Players, Inc., 736 F.2d 485, 488 (9th Cir. 1984),
cert. denied, 469 U.S. 103 7 (1984). Consequently, the
notions of idea and expression may merge from such "stock"
concepts that even verbatim reproduction of a factual work
may not constitute infringenent. Accord See v. Durang, 711
F.2d 141, 143 (9th Cir. 1983); Sid & Marty Krofft Television
Productions, Inc. v. McDonald's Corp., 562 F.2d 11 57, 1163
(9th Cir. 1977); Aliotti v. R. Dakin & Co., 831 F.2d 898, 901
(9th Cir. 1987).
 This doctrine of merger is particularly applicable with
respect to games "since they consist of abstract rules and play
ideas." Midway Mfg. Co. v. Bandai-America, Inc., 546
F.Supp. 125, 148 (D.N.J. 1982); see also Anti-Monopoly, Inc.
v. General Mills Fun Group, 611 F.2d 296, 300 n.1. (9th Cir.
1979). A similar logic has been applied to rules of a contest
where most subsequent expressions of an idea of a rule are
likely to appear similar to the words of a related rule. See
Morrissey v. Proctor & Gamble Co., 379 F.2d 675, 678-79
(1st Cir. 1967); Affiliated Hospital Products, Inc. v. Merdel
Game Mfg. Co., 513 F.2d 1183, 1188-89 (2nd Cir. 1975).
Here, Allen has not shown that it is possible to distinguish the
expression of the rules of his game manuals from the idea of
the rules themselves. Thus, the doctrine of merger applies and
although Allen may be entitled to copyright protection for the
physical form of his games, he is not afforded protection for
the premises or ideas underlying those games. To hold other-
wise would give Allen a monopoly on such commonplace
ideas as a simple rule on how youngsters should play their
For the foregoing reasons, the decision appealed from is