GC2 Inc. v. Int’l Game Tech., No. 16 C 8784, Slip Op. (N.D. Ill. Nov. 12, 2018) (Kennelly, J.).

Judge Kennelly granted in part defendants’ (collectively IGT) Fed. R. Civ. P. 56 motion for summary judgment as to plaintiff GC2’s “Kitty Glitter” and “Maid of Money” games, to limit GC2’s recovery of profits and on GC2’s Digital Millenium Copyright Act (DMCA) and Illinois Consumer Fraud Act (ICFA) claims in this case involving video slot machines.

Of particular note, the Court held as follows:

  • While IGT may have copied something from GC2’s Kitty Glitter game, that something was not protectable. No reasonable fact finder could have found IGT’s games to be substantially similar to GC2’s Kitty Glitter game. Both games have three rows and five columns of spinning squares with images corresponding to high-value plahing cards. These are common slot machine elements. Similarly, both have images including ones saying “Kitty Glitter.” But GC2 did not claim copyright in the game’s name. The only other similarity is that both games include pictures of cats. The cat images, however, are substantially different.
  • The same was true as to GC2’s Maid of Money claim. GC2 did not even make an effort to dispute that IGT’s game had an entirely different look and feel.
  • The Court granted IGT’s motion to limit each defendant’s copyright damages to its own profits on the accused games. The general copyright rule is that damages are not joint and are limited to the defendant’s own profits. GC2 offered no evidence or argument sufficient to overcome that rule. In particular, GC2 failed to show that the defendants were part of a partnership or joint venture.
  • GC2 waived any DMCA claim as to Kitty Glitter games by stating in an interrogatory response that it did not allege a DMCA violation as to Kitty Glitter.
  • The Court denied IGT’s motion as to alleged removal of a copyright notice from certain games because removal of a copyright notice can constitute a removal of copyright management information (CMI).
  • The Court held that GC2 presented enough evidence to make a claim of intent under the DMCA.
  • The Court held that DMCA damages were based upon IGT’s acts, not the number of users of IGT’s software.
  • The Court granted summary judgment to IGT as to GC2’s ICFA claim because actual damage is an element of the claim and GC2 offered no evidence of actual damage.