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On Thursday night, at the National Football League’s annual amateur player draft, football legend Barry Sanders took the stage. Sanders was on hand to celebrate the fact that millions of fans of the Madden NFL game from Electronic Arts had voted him onto the cover of the mega-selling franchise’s forthcoming 25th anniversary edition.
Meanwhile, behind the scenes, EA prepares for another coming event — a jury trial over Madden NFL with lots of money at stake and innovative copyright issues like whether it’s possible to protect the design of football plays and formations.
The lawsuit comes from Robin Antonick, who developed a prototype for a football game on the old Apple II operating system and then was hired in 1984 by EA to write the source code for a game called “Football.” The following year, EA contracted with Hall of Fame football coach and broadcast announcer John Madden to lend his name to the game, and Antonick worked on the initial videogames in exchange for royalties. But eventually, Antonick was cut out of the franchise, which has collectively sold over 100 million copies and earned more than $4 billion in sales.
In his claims filed in California federal court, Antonick alleges that the games continue to use elements he created, and as such, he deserves to participate in the profits. EA has called his lawsuit “quixotic” without any proof that it has copied any of his code, but on Thursday, a judge made a brief but bold ruling that will allow Antonick to try some of his claims before a jury starting on June 10.
First things first. Copyright is supposed to protect expression — not ideas. When it comes to something like movies, expression is not always easy to distinguish from ideas, but there are elements like scenery, dialogue and characters to point to in figuring out whether whether expression has been misappropriated. Typically, judges attempt to weigh whether one work is “substantially similar” to another work by analyzing the congruence of those elements.
Video games present a unique challenge. In weighing the substantial similarity of expression from one work to the next, should judges and juries look at the literal source code that comprises a game or should these adjudicators focus on what that code expresses?
In defending the lawsuit from Antonick, whose contract entitled him to royalties on derivative versions of his work, EA believed that the judge should center his attention on the code. The company has asserted that the later Madden games were independently created by game developer Jim Simmons who never saw Antonick’s source code. And as for the game elements, EA said the “ideas, methods and systems” were “elements inherent in the game of football and dictated by the videogame technology of the era — unprotectable under various copyright doctrines.”
Some examples from EA’s motion for summary judgment:
- “The width of a playing field in a videogame is an idea or abstract rule, not protected by copyright.”
- “Virtual player attributes are functional parts of a system, and therefore unprotectable under copyright… Antonick’s player ratings system is based on inherent elements of football, and therefore not copyrightable under the scenes a faire doctrine.”
- “The use of ‘decision points’ that stimulate football is nothing more than granular rules for a computer-mediated, turn-based game. The use of such rules for sports simulations is neither new nor copyrightable.”
- “To pursue the virtual ball carrier… these elements are ‘methods’ or ‘behaviors’ governing how defenders move within the game, and therefore uncopyrightable… Tackling ball carriers when they are within reach is behavior that is necessary to model a realistic football simulation.”
Perhaps most intriguing was the discussion over the copyrightability of football play formations. EA attempted two big arguments to shoot down the theory that someone could lay claim here.
First, it argued that football plays are not subject to protection because they didn’t fit into any of the eight subject matter categories defined by the Copyright Act.
“Only one of those—’pantomimes and choreographic works’—even arguably could include football plays and formations,” says EA’s legal papers. “But the Copyright Office has clarified that ‘a selection, coordination, or arrangement of functional physical movements such as sports movements, exercises, and other ordinary motor activities alone do not represent the type of authorship intended to be protected under the copyright law as a choreographic work.'”
Second, it argued that what Antonick had created wasn’t original. “John Madden provided EA with the Oakland Raiders’ playbook so that EA could incorporate the plays into the videogames that bore his name,” said the company. “Antonick admits that his only role was to translate those visual representations of plays—already selected, named and organized by EA—by writing the necessary code.”
In reaction to EA’s summary judgment, Antonick’s lawyers made several rebuttal points.
The plaintiff says that his 1986 contract with EA entitled him to royalties to games even if his source code wasn’t used verbatim. He would get money so long as the new games were derivatives, which was defined in the contract as “adaptations of the Work to operate on computers or operating systems other than described in the Specifications.”
Antonick says that there were all sorts of other contractual points that ensured his financial participation — he even was referred to as an “Artist” in the contract — but even if the derivative work was limited to copyright, he claims that he deserves royalties. He says there’s evidence that EA had “access” to his work and that the subsequent Madden games were substantially similar.
“A reasonable jury could conclude that midway through development, EA decided to transform an ‘arcade’ football game into a realistic Madden branded NFL simulation,” says the opposition to EA’s motion. “With barely two months to make the change and a programmer lacking football game experience, EA simply copied all the platform independent elements of Antonick’s game—its plays, its carefully crafted system of player ratings and its AI.”
With specific regards to football plays, Antonick’s lawyers say, “The ‘work’ here is a software program, not a football-themed ballet. Antonick is not trying to copyright ‘functional physical movements.’ What is protected under even the most cramped view of copyright is the selection of plays and the expression of those plays in the original game… Indeed, EA itself implicitly recognized the irrelevancy of the copyright rule when it licensed Madden’s Raiders playbook to create ‘derivative’ works.”
On Thursday, U.S. District Judge Charles Breyer narrowed the scope of Antonick’s claims but allowed enough of it to go forward — including, yes, football plays — to potentially make for one of more important as well as entertaining trials this year.
“First, the Court finds that Antonick’s contract claim for unpaid royalties is limited to derivative works within the meaning of United States copyright law,” wrote judge Breyer in a short decision (read here). “Second, the Court finds that, of the similarities identified by Plaintiff’s expert, only two – ‘field width’ and ‘plays and formations’ – are potentially protectable under copyright law, and that a jury should determine the issue of substantial similarity.”
E-mail: firstname.lastname@example.org; Twitter: @eriqgardner
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