Lewis Galoob Toys, Inc. v. Nintendo of America, Inc. 964 F.2d 965 (9th Cir. 1992) Galoob made a doo-dad that fit between a Nintendo video game and the game cartridges. It allowed you to cheat. The doo-dad would alter the data coming from the cartridge to give the player more lives or super-strength or whatever. Nintendo sued for copyright infringement. Nintendo argued that the doo-dad made a copy of the data on the cartridge in order to alter it, and then altered it. That constituted a derivative work. 17 U.S.C. §106(2) grants the copyright holder exclusive license to prepare derivative works. It does not define what it means to "prepare" a work. Galoob argued that the data on the doo-dad was only stored temporarily, therefore it was not fixed, and therefore not independently copyrightable. Galoob argued that it couldn't be a derivative work unless it was copyrightable. 17 U.S.C. §102(a) requires that "a work must be fixed in a tangible medium of expression." The Trial Court found for Galoob. Nintendo appealed. The Appellate Court affirmed. The Appellate Court looked to the definitions in 17 U.S.C. §101 and found that a derivative work is a "work" and that a "work" is only "created" once it is "fixed in a tangible medium of expression." But does the term "create" in §101 equal the term "prepare" in §106(2)? This Court assumed it did. The Court found that the doo-dad did not make a fixed copy, therefore it was not derivative work. "It does not contain or produce a Nintendo game's output in some concrete or permanent form, nor does it supplant demand for Nintendo game cartridges."