Appeals Court Dumps Infringement Lawsuit Against EA After Plaintiff Fails To Produce Evidence
from the well,-I-have-lots-of-hearsay-and-conjecture... dept
The Ninth Circuit Court of Appeals has affirmed [PDF] the dismissal of a copyright infringement suit brought against Electronic Arts by Robin Antonick, a programmer who worked on the Apple II version of the game Madden back in the mid-80s.
Antonick was locked out of royalties for other versions of the game by the software company, but alleged Electronic Arts did nothing more than copy his code when porting it to other platforms — creating a “derivative work” that he was supposedly entitled to collect royalties on. Antonick might have had a case. But while allegations are nice…
In 2011, Antonick brought this diversity action against EA, seeking contract damages in the form of unpaid royalties for Sega Madden and Super Nintendo Madden. […] Antonick produced evidence that Park Place was rushed and inadequately staffed, and argued that it copied his code to meet the demanding deadline for the first Sega Madden. Antonick’s expert, Michael Barr, opined that Sega Madden was substantially similar to certain elements of Apple II Madden. In particular, Barr opined that the games had similar formations, plays, play numberings, and player ratings; a similar, disproportionately wide field; a similar eight-point directional system; and similar variable names, including variables that misspelled “scrimmage.”
…evidence is better.
But neither the source code for Apple II Madden—the “Work”— nor the source code of any allegedly infringing works were introduced into evidence. Nor were images of the games at issue introduced.
Not that evidence (or a lack thereof) apparently mattered to the jury. It found that EA had created a derivative work with its Sega version of Madden, but the court found (post-verdict) that Antonick had not produced any evidence clearly pointing to copyright infringement. Without that evidence, Antonick is out of luck when it comes to his contract/royalty claims.
Antonick tried to route around this obstacle by claiming EA had both the opportunity and the motive to copy his work. On top of that, he tried to pursue this as a “look and feel” case while still relying on the supposedly-copied code as the basis for his claims. The Ninth Circuit found these arguments — and Antonick’s witness — unpersuasive.
[T]he lay testimony was about how the games appeared, not how they were coded—and Antonick does not assert a copyright interest in Apple II Madden’s audiovisual appearance, only in its coding.
Antonick argues that copying was shown by testimony of Michael Kawahara, an Apple II Madden assistant producer. When asked whether he recognized any of the plays in Sega Madden from Apple II Madden, Kawahara answered affirmatively, stating that “[it] was – well, since the interface was – well, it was the same as we used in the Apple II. It was very easy to look at all of the plays in the Genesis version and they looked identical . . . to the original Apple II version.” This comment, however, does not establish that the source code for the two games were substantially similar. Kawahara had no programming responsibilities for Apple II Madden; did not understand the Apple II Madden code; did not see the Sega Madden code; and admitted that he had no knowledge about differences in the games’ codes.
A statement entered into evidence by the plaintiff — introduced to back up Antonick’s claim about EA’s motive/opportunity to copy the source code — only made the case weaker.
Antonick also cites a statement by Richard Hilleman, an EA representative, that it was “possible” he had told an interviewer that “the Sega game took the system’s approach from Mr. Antonick’s game and just simply put a different aesthetic on top of it.”
This is an area that often trips up those deeply reliant on IP protections but surprisingly uninformed about what those protections actually cover. The Appeals Court straightens out this popular misconception.
But, an “approach” is an idea that cannot be copyrighted—only its expression in code is protectable—and Sega Madden could have used Apple II Madden’s “approach” to football video games without violating the copyright laws.
That’s the minor failure of the suit — mistaking ideas for expression. The ultimate failure is Antonick’s inability to back up his assertions with actual evidence. Infringement claims with no evidence presented pushed Antonick into resorting to “look and feel” claims, which are notoriously difficult to turn into courtroom victories.