Source Code Evidence Required to Establish Computer Game Copyright Infringement

Robin Antonick developed the computer code for the original John Madden Football game for Apple II (Apple II Madden), released by Electronic Arts (EA) in 1988. Antonick also developed Madden games for IBM-compatible computers. Antonick began work on Nintendo and Sega Genesis games, but EA told him to stop work on games for those platforms. EA then hired Park Place Productions to develop Madden games for the Sega Genesis and Super Nintendo platforms. EA agreed in its 1986 contract with Antonick to pay royalties on derivative works of the Apple II Madden game. EA did not pay Antonick royalties on the games Park Place developed and informed Antonick that those games were not derivative works.

Antonick sued EA for breach of contract in 2011 for EA’s refusal to pay Antonick royalties on the Madden games Park Place developed. At trial, neither the source code for the Apple II Madden game nor the source code for the allegedly infringing Park Place Madden games was introduced into evidence. Likewise, no images of the games were introduced into evidence. At the end of the jury trial, the district court granted judgment as a matter of law to EA. The district court determined that Antonick did not provide sufficient evidence of copyright infringement because Antonick did not introduce into evidence either the source code for the Apple II Madden game or the source code for the Sega Madden game developed by Park Place. The Ninth Circuit Court of Appeals affirmed. The jury found that the statute of limitations did not bar Antonick’s claims, but that issue was not appealed and therefore the Ninth Circuit did not discuss it.

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No Reasonable Possibility of Access to Copyrighted Home Plans, No Infringement

Building Graphics, Inc. is an architecture firm located in Charlotte, North Carolina.  The firm registered copyrights on some of its home plans between 1993 and 1998.  Lennar Corp. builds homes in eighteen states and planned to enter the Charlotte market in 2001.  Lennar hired Drafting & Design, Inc., an architecture firm, to design homes for Lennar to build in the Charlotte area. 

Building Graphics sued Lennar and Drafting & Design for infringing the copyrights on three of its home plans from the 1990s.  Following discovery, Lennar and Drafting & Design moved for summary judgment.  The district court granted the defendants’ motion, ruling that Building Graphics did not show that it was reasonably possible that Lennar had access to Building Graphics’ copyrighted home plans and that there was no substantial similarity between the two sets of plans.  The Fourth Circuit affirmed the district court’s decision based on Building Graphics’ failure to show a reasonable possibility of Lennar’s access to the copyrighted plans.

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Floral Fabric Design Copyright Infringement Case Remanded for Jury Trial by Ninth Circuit

L.A. Printex is a fabric printing company based in Los Angeles.  Ms. Bubbles is an L.A-based apparel wholesaler.  Aeropostale, a mall-based retailer, purchases apparel from Ms. Bubbles and other vendors.  L.A Printex sued Aeropostale and Ms. Bubbles for copyright infringement when it discovered that Aeropostale was selling shirts, under the Aeropostale trademark, displaying a design similar to L.A. Printex’s C30020 floral design.  Aeropostale ordered the shirts from Ms. Bubbles.

The district court granted the defendants’ motion for summary judgment, finding that there was no issue for trial on whether defendants had access to L.A. Printex’s design and whether the two designs were substantially similar.  L.A. Printex appealed and the Ninth Circuit held that L.A. Printex raised a genuine dispute of material fact on both access and substantial similarity.

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“Stealing Idea” Suit Dismissed on Summary Judgment

Frank Coble accused Anita Renfroe of stealing his idea for a song and filed suit against her, alleging copyright infringement and the trademark law claims of unfair competition and false designation of origin.  The district court granted Renfroe’s motion for summary judgment on both the copyright and trademark claims.

Facts.  Coble and Renfroe are both comedians.  Coble performs standup comedy and is also a full time artist.  Renfroe is a full time professional singer, songwriter and comedian whose comedy is aimed at mothers.  This brand of humor has been her forte since 1998.

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Modern Dog Design Sues Target and Disney for Copyright Infringement of Dog Artwork

Seattle design studio Modern Dog Design Company filed a complaint against Target and Disney (pdf), a few of their subsidiaries and others for infringing the copyright on some of Modern Dog’s dog drawings.  Modern Dog’s book, “Modern Dog:  20 Years of Poster Art,” contains the material that was allegedly infringed.  The inside front cover of the book consists of drawings of the heads of dogs of various breeds and is entitled “Dogs We Know.”  The inside back cover of the book likewise consists of drawings of the heads of dogs of various breeds and is entitled “Dogs We Don’t Know.”  (Dogs We Know, Dogs We Don’t Know, Exhibit 5 to the complaint, pdf).  The defendants are accused of infringing Modern Dog’s copyright in the drawings of 26 of the 136 total drawings on the inside front and back covers.

The complaint alleges that the defendants Target and Disney partnered in producing a line of clothing called “D-Signed” and that they infringed Modern Dog’s copyright in the dog drawings in three ways:

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Ninth Circuit Upholds Ruling that Sony’s God of War Video Game Not Infringing in Dath v. Sony

On July 29, 2011, the Ninth Circuit filed what must be one of its shortest opinions in a copyright case:

We adopt and affirm the district court’s well-reasoned opinion in Bissoon-Dath v. Sony Computer Entm’t Am., Inc., 694 F. Supp.2d 1071 (N.D. Cal. 2010).

Dath v. Sony Computer Entertainment, No. 10-15783.


The Plaintiffs Jonathan Bissoon-Dath and Jennifer B. Dath alleged that Sony Computer Entertainment of America, Inc., and one of Sony’s former employees infringed their copyrights in five works with the God of War video game, developed by Sony for its PlayStation 2 and PlayStation Portable video game consoles.  Plaintiffs wrote five works describing the story of Spartan kings at war against Athens, the involvement of the Greek Gods, how the Gods choose a mortal to achieve peace and how the mortal eventually secures peace and democracy in Greece.  Plaintiffs started distributing their works in early 2002.

Sony’s God of War video game also involves the tale of war between Sparta and Athens, but the mortal chosen by the Greek God Athena to end the war later becomes the Greek God of War, overseeing modern wars such as World War II and the Vietnam War.  Sony released the game in March 2005.

Plaintiffs filed this case in February 2008.  After the parties were unable to resolve the case through alternative dispute resolution, the defendants filed a motion for summary judgment.

The decision on summary judgment.

Summary judgment is a pretrial motion to decide the case on its merits without a trial.  The case is decided as a matter of law, relying on the evidence obtained by the parties as of the time the motion is made.  See my posts Photograph of Model Dancing Copyrighted Bronze Dance Steps Could be Fair Use and Copyright Infringement Suit Regarding Precast Concrete Vault Drawings Yields Summary Judgment Rulings for more detailed discussions of the requirements.  Those posts also discuss substantial similarity and scenes a faire, concepts relevant to this case.

Although summary judgment is not highly favored on questions of substantial similarity in copyright cases, summary judgment is appropriate if the court can conclude, after viewing the evidence and drawing inferences in a manner most favorable to the non-moving party, that no reasonable juror could find substantial similarity of ideas and expression.

(District court opinion page 1078).

The “substantial similarity” referred to by the court in the quote above is an aspect of the test used by the court to determine copyright infringement.  The plaintiff must prove that 1) she owns a valid copyright in the work and 2) “the defendant copied protected elements of that work.”  (District court opinion page 1078).  In this case, the defendants did not dispute the validity of the plaintiffs’ copyrights.  The issue on summary judgment was whether plaintiffs could establish that defendants copied the protectable elements of their works.

A plaintiff may establish copying either (1) by presenting direct evidence of copying or (2) by showing that the defendant had access to the work and that the works at issue are substantially similar.

The plaintiffs did not present direct evidence of copying and relied on showing access and substantial similarity.  The Ninth Circuit recognizes a relationship between access and substantial similarity with its “inverse ratio rule.”  When there is a high degree of access, a lower standard of proof of substantial similarity is required. 

The “substantial similarity” element includes a two-part test of its own:  1.  The extrinsic test is an objective test which examines whether “there are substantial similarities in both ideas and expression.”  (District court opinion page 1079).  2.  The intrinsic test is a subjective inquiry into the similarity of expression and is a test for the jury to apply.  The court considers only the extrinsic test on summary judgment.

Copyright law only prohibits copying of the protectable elements of a plaintiff’s work.  Ideas are not protected, but the expression of those ideas is.  General plot ideas and scenes a faire,stock scenes, are also not protected.  A particular sequence of a significant number of unprotectable elements may itself be a protectable element.  The court determines what the protectable elements are and disregards the non-protectable elements.

The court ruled that “no reasonable juror could find substantial similarity of ideas and expression, even if access to all of plaintiffs’ works were proven.”  The court examined the protectability of plaintiffs’ works and the articulable similarities between the works, using the following elements:

  • Plot
  • Themes
  • Dialogue
  • Mood
  • Settings 
  • Pace
  • Characters
  • Sequence of Events

Plot.  The court found similarities between the two plots, but stated that “[o]nce the unprotectable elements are filtered, the two stories’ plots are similar only at a level of abstraction that is barely meaningful, if at all.”  (District court opinion page 1082).

Themes.  The court found that the themes are quite different.  Plaintiffs’ works focus on the establishment of peace and democracy, while God of War focuses on violence, divine forgiveness and continued war.

Dialogue.  The court found that the dialogue similarities either referred to different things in the plaintiffs’ works and God of Waror were clichéd and unprotectable.

Mood.  The court found the mood for plaintiff’s works to be light-hearted, with some darker scenes sprinkled in for contrast and the mood of God of War to be dark and extremely violent.

Settings.  The court found that the shared settings of Greece, Athens, Mount Olympus, Sparta and the Underworld were generic and clichéd and unprotectable elements of stories concerning ancient Greece and Greek gods.

Pace.  The court found that plaintiffs’ works are relatively fast-paced and that God of War is very fast paced, but that the pace of the game is indicative of a violent video game and not of copying plaintiffs’ works.  In addition, the storyline in plaintiffs’ works is linear, whereas in God of War it is repeatedly interrupted with flashbacks.

Characters.  “Greek gods, dialogues among them about mortal affairs, rivalries among the gods, and mythical beasts such as the Hydra or the Nemean Lion are unprotectable elements; it is uncontroversial that they have been used widely in both ancient and modern artistic works, in the naming of astronomical bodies and spacecraft, and in other fields.”  (District court opinion page 1088).

Sequence of Events.  As indicated under the Pace element, the plaintiff’s storyline is linear, with scenes occurring in chronological order, while the scenes in God of War jump around through flash-backs.

In summing up, the court indicated that plaintiffs’ works were comprised of stock elements used in literary and artistic works for a long time.  Even though a particular sequence of stock elements can be protectable, in this case, the sequences of elements and relationships between the elements in the two works were entirely dissimilar.