Looks like Robin Antonick, the creator of popular video game Madden NFL Football, has lost his $11 million lawsuit.
Antonick sued Electronic Arts (EA) for breach of contract in 2011. He claimed that the contract he signed in 1986 entitled him to royalties on all subsequent derivative creations of the Madden Football game. Even though the issue was focused on the contract, the US copyright law was on his side and it was found that he was entitled to derivatives from the original Apple II version. This caused trial judges to examine more technical aspects such as; the width of the playing field, virtual player attributes and plays and formations, in order to determine if these elements could be protected “within the meaning of the United States copyright law.
In 2013 a California federal judge found Antonick’s case presented adequate evidence and awarded him with a $11 million verdict. A few months later the judge then entered into a judgment as a matter of law. This conclusion favored EA and the court found that a reasonable juror could not come to the decision that later Sega versions of the Apple II game were “virtually identical.” As such there was not sufficient evidence to support the case in Antonick’s favor. Antonick appealed, but again the 9th Circuit pointed out that Antonick’s failure to bring to evidence “source codes” may have been the reason for his failed claim.
Last Monday, Circuit Judge Andrew Hurwitz affirmed the trial judge’s opinion. This means that with the absence of source codes, the jury cannot compare the works to determine substantial similarity. Antonick further contended that EA’s access to his source code combined with an obvious motive to copy it, was enough evidence. There would be no need to introduce the source codes because expert witnesses could simply testify on the similarities of the work. However, Hurwitz was not convinced by this argument, giving three reasons to why Antonicck’s logic fails;
The first being that, even though there is access and motive to copy, this “does not establish that the protected portions of the works are substantially similar.” As such the mere fact that EA had access “cannot establish copyright infringement.”
The second, is that when you interpret the law, it is evident that expert testimony does not satisfy “plaintiff’s burden of proof under the intrinsic test, which depend[s] on the response of the ordinary reasonable person.”
Finally, the testimony is about how the game appears, “not how they are coded- and Antonick does not assert a copyright interest in Apple II Madden’s audiovisual appearance, only in its coding.”
As such the 9th Circuit also reminds that it does not rule on the possibility of owed royalties or infringement made from copying computer code.
This decision will now shape how similar claims in the digital gaming arena are to be litigated in the future. It is important to understand the difference between copyright claims used to prove substantial similarities on the visual appearance of a video game, versus, copyright claims based on the coding.
Credit: Jessica Wong
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