The Tangled History of Omni/Glak/Eagle/Magic Electronics (Part 1)

            Magic Electronics of Cranston, Rhode Island is little remembered today but in 1984 and 1985, they released over two dozen video games, a few of which were minor hits. Their most well-known games were probably The Glob, Super Glob, H.B.'s Olympics, 8 Ball Action, Driving Force, Samurai (Nichon Ichi), and Special Forces: Kung Fu Commando, all of which made the RePlay and/or Play Meter charts. Most of these games have been forgotten today as had Magic Conversions. There are a number of reasons: they made only conversion kits, they released their games at the height of the industry crash, and their games were designed by or licensed from other companies and are thus not associated with Magic.

            Nonetheless, Magic had a fairly interesting history. Tracing that history, however, can be difficult since it is intertwined with the history of a number of other companies and tangentially related to even more. In fact, I could have called this article "the tangled history of Ferncrest Distributors/Omni Video Games/Glak Associates/Eagle Conversions/Magic Conversions/Epos Corporation/Cardinal Amusements/Montgomery Vending/Magic Electronics"  but that doesn't really roll off the tongue.

            The main connections between Magic and its direct ancestors were two men: Frank Gaglione and Kevin McIntyre, who served as President and VP of most of them. Their history starts with another Rhode Island company called Omni Video Games.

Omni Video Games, Inc.

 

            Of all the companies associated with Magic Electronics, Omni Video Games is the most famous, largely because of their role in the Stern v. Kauffman case, one of the most influential and important cases in video game history. Omni was headed, and likely founded, by Frank Gaglione. Little is known about Gaglione’s early life. It appears that he may have been born in 1913. On April 2, 2013, the Rhode Island Senate passed a resolution honoring Frank Gaglione of Providence on his 100^th birthday (http://webserver.rilin.state.ri.us/BillText13/SenateText13/S0805.pdf).

Given the name and the fact that Gaglione’s business were all in the Providence area, it seems likely that this is the same person (a Frank Gaglione who died in Buffalo in 1997 appears to be a different person). By 1980, Gaglione had established a company called Ferncrest Distributors in Warwrick, RI to distribute slot machines and video games for Universal and other coin-op companies. I am not sure exactly when Omni was founded but it appears to have been around 1980. According to the records of the Rhode Island Secretary of State, Omni Video Games, Inc. was incorporated on June 24, 1980 as Omni Gaming Systems, Inc. The incorporation record claims that the name was changed to Omni Video Games. Inc. in 1993, and lists Barbara Maggiacomo listed as president (whose address is listed as 123 Shadow Brook Lane in Warwick). It also claims that Omni filed the fictitious name of Elm Manufacturing on 3/12/84. I'm not sure this is the same company, but given the name and the Warwick association, it seems likely). Frank Gaglione's name doesn't appear on the summary of the incorporation record on the Sec. of State website, but it might appear in the actual articles (articles of incorporation generally include officers of the company)

Omni produced at least a dozen-and-a-half titles between 1980 and 1982. A number of them seem to have been legit. The licensed a number of games, for instance from Artic Electronics/ATW USA, including Mars and Devil Fish (I believe that Artic Electronics is a different company from the Artic International that was sued by Williams and Midway. I read that they actually changed the name of their US branch to ATW to avoid confusion with the other Artic). Other Omni games, however, were anything but legitimate. Midway sued them over their bootleg versions of Pac-Man, Galaxian, and Rally-X.

 

Stern v. Kaufman

            The 1981 case Stern v. Kaufman brought Omni its most lasting fame. It was not, however, the first time they’d tangled with Stern in court. In November, 1980 Stern had filed a complaint against the company over a bootleg version of Astro Invader called Zygon and succeeded in shutting production on the game down. Omni was unfazed. In April, 1981, just four weeks after Stern released Scramble (like Astro Invader, it was licensed from Konami), Omni released their own version (called either Scramble or Scramble 2), selling it for $650 less than Stern. Stern filed a complaint almost immediately.

The “boring” stuff

            First, the stuff that many will find boring (though I actually think it’s interesting) – the case itself.  I don’t have time to go into all the details here (that could take up an entire post) but the case hinged on a few provisions of the Copyright Act of 1976 (incorporated into Title 17 of the U.S. code), which protects "… original works of authorship fixed in any tangible medium of expression ". The act then goes on to list examples. The list does not include video games specifically, but it does included literary works, and audiovisual works, and video games were generally registered under one of these two categories. Rather than registering the code as a “literary work” Stern had registered a video tape of the actual gameplay as an audiovisual work. One reason might have been that registering the code might not prevent someone from creating an exact copy of the game with original code. Registering the gameplay, on the other hand, protected the game even if someone duplicated it with new code. According to George Gerstman, Stern’s lawyer in the case, there was another reason. Gerstman had earlier worked on a case called Data Cash Systems v. JS&A group that involved a copy of an electronic chess game. In that case, the judge had ruled that game code embedded on ROMs was not copyrightable since the code wasn’t “readable”. As a result, the copyright office stopped granting copyrights for programs on ROMS or PROMS (after the trial, Gerstman was able to persuade them to change their policy and the Data Cash decision was apparently later overruled).

            The idea of submitting a videotape of gameplay had come up in the Astro Invader case and Gerstman himself shot the video. To do so, he had to lug his “portable” VCR to the Stern factory (which consisted of a camera and a base VCR unit that he had to strap to his back). In addition, neither TV monitors nor VCRs were common in courtrooms at the time (not even in New York, where the Kaufman trial took place) and Gerstman had once again haul his VCR to court.

            In the trial, Omni claimed that Konami//Stern’s Scramble did not meet the copyright act’s originality requirement because what happened in the game depended on the actions of the player. The video tape wasn’t original either, because it depended on the ROMs and the underlying code, which Stern had not registered. The judge disagreed and issued a temporary injunction against Omni. On appeal, Omni tried attacking the “fixation” requirement of the copyright act claiming that the game was not “fixed” because it was different every time you played it. They also claimed that each act of playing the game constituted an original work, while the video tape only showed one particular instance. Omni lost again.

The not so boring stuff

            Some aspects of the case were a bit more exciting. One was that Frank Gaglione himself was called to testify. Of course, that itself is not very interesting, but the reason he was called is. As Gerstman explains in his book “Clear and Convincing Evidence”:

“The president of Omni, Frank Gaglione, was present at the hearing. Judge Nickerson had recently been the judge in a federal criminal case concerning the New York mob. Without impugning Frank’s character, let’s just say that he was wearing a dark red shirt, a dark suit and a light tie. Frank was a tough looking guy. I wanted to be sure that Judge Nickerson knew that Frank was Omni’s president. I called Frank to the stand as an adverse witness. Frank had not expected this. Although I had not taken his deposition earlier, I was confident that I would be able to get useful testimony from him.”
[George Gerstman (2013-04-02). Clear and Convincing Evidence: My career in intellectual property law (Kindle Locations 1913-1917). AuthorHouse. Kindle Edition.]

            Also interesting was that two weeks after Stern filed a complaint against Omni for copyright infringement, Omni filed a complaint against Stern for trademark infringement. “What gives?” you may well be asking. As it turns out, in December of 1980, Gaglione ordered 10 marquees bearing the name “Scramble” from a company called BCA posters (Konami had already showed Scramble in Japan, so the title was known in the video game industry). Gaglione slapped five of the marquees on three other Omni bootlegs that were already in production (Space Guerrilla, Space Carrier, and Rally-X) then filed for a trademark on the name “Scramble”. It was a rather shameless attempt, but you have to admire the guys’ chutzpah. Thankfully, the court didn’t buy it for a second.

 

            A final amusing (in retrospect) incident occurred after the trial. Despite the judge’s order, Omni continued to produce their bootleg Scramble game, this time under the name Air Shuttle. In October, Stern found out about some copies of Air Shuttle that had been sold in Tulsa, OK and got a court order allowing them to seize the games (they even got the judge to fast track the process). Gerstman himself went to Tulsa and, aided by a US Marshall, helped confiscate games from 14 different locations. They later found more bootleg games in Brooklyn. This time, however, things didn’t go so smoothly. Gerstman and another US Marshal went to a convenience store to seize five games. After loading three of them on their truck, 8 men walked in with Doberman pinscher’s on leashes, then locked the door behind them and threatened to turn the snarling dogs loose if the games were not returned posthaste. Gerstman and the Marshall (wisely) decided to comply. As the left, they were pelted by rocks from kids lining the rooftop.

            In any event, the judge was none too pleased that Omni had continued producing their games in violation of his order and brought criminal contempt charges against Frank Gaglione (to expedite matters, the charges were later dropped). Not long after the case, the Omni Video Games disappeared from the trade magazines (though the company didn’t go away entirely. In 1986 they were assigned rights to a video game scoring system developed by Wing Company, Ltd (which served as the basis for a 1991 lawsuit). Frank Gaglione, meanwhile, went on to form another company, this one in Providence, called Glak Associates - but that will have to wait for part 2.

Games Made by Omni

            I don’t really have a good list of games made/distributed by Omni, since I don’t really track bootleg games, but here are some titles I’ve come across:

·         Devil Fish (licensed? from Artic Electronics)
·         Mars (licensed? from Artic Electronics)
·         Packman (Pac-Man bootleg)
·         Piranha
·         Pool Hustler? (Omni registered a trademark on this name, but I don’t know if they ever made a game)
·         Rally-X (bootleg)
·         Red UFO (appears on flyer, may be same as Artic’s Defend the Terra Attack on the Red UFO)
·         Scramble/Scramble 2 (bootleg)
·         Space Carrier
·         Stand-Off (Omni registered a trademark on this name, but I don’t know if they ever made a game)
·         Super Sphinx (Omni showed this game at the 1982 AOE show in March)
·         Uniwars
·         Zygon (Astro Invader bootleg)
·         Golden Poker (licensed??? Bonanza)