Another landmark emulation case, although slightly different from the Connectix one.  Bleem was another emulator for the Sony Playstation, and Sony sued it for the use of copyrighted images on their packaging.  Basically, on its packaging Bleem compared what a video game looked like on a Playstation vs. what it looked like on the emulator.  To do this, they used screen shots of Sony video games, which Sony contested.  Bleem, of course, claimed fair use.  The court decided in agreement with Bleem, noting that the use of copyrighted images fell under fair use because it was comparative advertising.  Since Bleem is a direct competitor to the Playstation, it needs to be able to use copyrighted material in order to make a successful advertisement.  Sony even claimed that Bleem was hurting the market for screen shots by using them in advertising, but the court shot that argument down as well, stating that Sony could still use the screen shots in advertising if they wanted to.  Also, since a screen shot is an absurdly small portion of the total work, Bleem is not actually copying that much from Sony. 

Similar to the Connectix case, the Bleem case drove home to the video game industry that contesting emulators themselves would lead nowhere.  With emulators being fully allowed to advertise using copyrighted video games, there was no need to hide their real uses.  Emulators and their creators are free to proudly display the abilities of their systems, without fear of any legal reprisal.  This makes it much easier to distribute a particular emulator using advertising, and in turn makes emulators much more widespread.  If this decision had gone the other way then the difficulty in advertising an emulator (remember, you wouldn’t be able to use any copyrighted shots in the advertising) would have been a huge obstacle to distribution.  But, without any legal recourse to stop the distribution of emulators or make them harder to spread, the video game industry needs to focus on the people illegally distributing the actual games, not the programs that play the games.

This was one of the most famous and controversial cases in the arena of the issues surrounding Video Game Emulators. The irony is that the case had nothing to do with a single piece of software. Instead it was over a screenshot of a Sony Playstation game screen that appears on the back cover of the packaging of the Bleem software. This screenshot was a comparison of what a game looked like when viewed through the normal Playstation console vs. how it would appear on the Bleem software, with supposedly enhanced graphics due to a properly equipped PC’s superior ability to represent color and pixels.

Sony had filed suit and won over the issue of this screenshot, it was quickly appealed and argued before the 9th Circuit Court. Bleem openly admitted that it took the screenshot and used it for advertisement and for the packaging, but doing so was protected as a fair use. The Court made special effort to apply the four factors in determining fair use: The purpose and character of the use, the nature of the copyrighted work, the amount used in relation to the whole, and the effect on the potential market or value of the copyrighted work.

The fair use argument of Bleem brought forth examples from landmark cases like Campbell v. Acuff-Rose and Harper & Row v. The Nation. The Court’s attempt to avoid rigid application to copyright statute illustrates the frame of mind in which this decision was made. It was found that Sony’s argument did not stand the scrutiny as the screenshot did not have enough substance or was not the heart of the work, which was supposedly infringed. In relation to the last of the four factors in determining fair use, Sony was in the market in this instance with video game hardware and software, yet argue that they at the same time were in the market with the screenshots themselves. The Court clearly rejected this line of argument because the screenshots had no adverse affects on the market that Sony represented. Although the case was not directly about the Bleem emulator software, its presence undoubtedly hung as a pendulum over the entire case and was even addressed by the Court. It was not difficult to read between the lines to find what this case was really about.