Absent Code Kills Game Developer’s Royalty Claims

By RYAN BORCHERS

SAN FRANCISCO (CN) – Missing source code killed a former college football player’s claims that a video game producer should pay him royalties for allegedly using his work to further develop its line of “John Madden Football” video games, the Ninth Circuit ruled Wednesday.

U.S. Circuit Judge Andrew Hurwitz, writing for a three-judge panel, outlines the case in his 14-page opinion.

Robin Antonick first developed the code for “John Madden Football” for the Apple II. Electronic Arts (EA) published the game in 1988 to massive success, and Antonick went on to develop versions of the game for the Commodore 64 and IBM machines.

EA told him to stop work on Sega Genesis and Nintendo versions of the game in August 1990 because it wanted to go in a new direction for the Sega version and because “Nintendo was becoming obsolete,” according to the opinion.

EA allegedly assured Antonick that the Sega version would not use his intellectual property.

EA continued to release versions of the game for both consoles up through 1998, and “Madden” games remain successful to this day.

Around 2009, Antonick began to suspect that the old Sega Genesis and Super Nintendo versions were derivative works from his original game, entitling him to royalties.

“Antonick’s expert, Michael Barr, opined that Sega Madden was substantially similar to certain elements of Apple II Madden,” Hurwitz wrote in the Ninth Circuit panel’s unanimous decision. “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.’ ”

The case went to trial on Antonick’s breach of contract claims and a jury ruled in his favor, finding that the games were “virtually identical.”

But the district court set aside the jury’s verdict “because neither the source code used for Apple II Madden nor Sega Madden was in evidence.”

The Ninth Circuit agreed with the court’s reasoning.

“Antonick’s claims rest on the contention that the source code of the Sega Madden games infringed on the source code for Apple II Madden,” Hurwitz wrote. “But, none of the source code was in evidence. The jury therefore could not compare the works to determine substantial similarity.”

The panel mentions in a footnote that the Apple II source code could not be found.

Antonick argued that the company that developed the Sega version for EA had the opportunity and motive to copy his code because it had access to it and was on a rushed schedule, and that the games share similarities in appearance.

But copyright infringement cannot be established without the supposedly copyrighted code being entered into evidence, Hurwitz insisted. And expert testimony alone is not enough to meet the burden of proof for the intrinsic test for copyright infringement.

As for the Super Nintendo version, Antonick argued that he is entitled to royalties because both versions are in the “same microprocessor family.”

But the district court properly dismissed that claim, Hurwitz wrote, because the processors have different instruction sets, instruction sizes and data sizes. And Antonick is not entitled to damages for not being afforded the opportunity to develop the Super Nintendo version because any damages would be speculative.

Antonick’s attorney, David Nimmer of Irell & Manella in Los Angeles, declined to comment on the ruling.

Eric H. MacMichael from Keker & Van Nest in San Francisco represented Electronic Arts and could not be reached for comment Wednesday.

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