Data East USA, Inc. v. Epyx, Inc.

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Data East USA, Inc. v. Epyx, Inc.
Seal of the United States Courts, Ninth Judicial Circuit.svg
Court United States Court of Appeals for the Ninth Circuit
DecidedNovember 30, 1988 (1988-11-30)
Citation(s)862 F.2d 204, 9 U.S.P.Q.2d (BNA) 1322
Case history
Prior action(s) Epyx published a karate video game with gameplay fairly similar to the Data East's karate game, which was already available for several years. Data East subsequently brought action against Epyx for, among other allegations, copyright infringement. The district court ruled for Data East on the copyright infringement issue and Epyx appealed.
Court membership
Judges sitting James R. Browning, Procter Ralph Hug Jr., Stephen S. Trott
Case opinions
There was no infringement on the copyright of Data East by Epyx.
Keywords
Copyright infringement

Data East USA, Inc. v. Epyx, Inc. 862 F.2d 204, 9 U.S.P.Q.2d (BNA) 1322 (9th Cir. 1988) [1] was a court case between two video game manufacturers, where Data East claimed that their copyright in Karate Champ was infringed by World Karate Championship, a game created by Epyx. Data East released Karate Champ in arcades in 1984, and the game became a best-seller and pioneered the fighting game genre. The next year, Epyx published World Karate Championship for home computers, which sold 1.5 million copies. Data East sued Epyx, alleging that the game infringed on their copyright and trademark.

Contents

The district court found that Epyx had infringed on Data East's copyright, but not their trademark, and ordered an injunction against distributing World Karate Championship. However, the United States Court of Appeals for the Ninth Circuit court reversed the decision on appeal, finding that the lower court erred in finding that the works were substantially similar. As a principle, there is no substantial similarity between the expression of two works if the expression is inseparable from the idea. The court also applied the scènes à faire doctrine that no one can own a generic scene, and the merger doctrine that no one can own the expression to an idea if there is only one way to express it. Although the games shared fifteen similarities, the court determined these were inherent to making a video game about karate, and lifted the injunction against Epyx.

In the 1994 case Capcom U.S.A. Inc. v. Data East Corp. , Data East used the same principle to defend its game Fighter's History from Capcom's accusations that they infringed Street Fighter II . This led most lawsuits about alleged video game clones to be settled between the mid-1990s through to the mid-2000s. This approach began to shift in 2012 with Tetris Holding, LLC v. Xio Interactive, Inc. and Spry Fox, LLC v. Lolapps, Inc. , as graphical improvements have made it harder to dismiss similarities as a coincidence of technological limitation.

Background

Facts

Despite being originally asked to complete the work on a totally different game, I did go off and evolve all the programming, graphics and sound effects myself, and pointed out that a karate game with two karate players wearing red and white karate suits fighting within the familiar rules of a bout of karate is bound to look similar to any other game featuring karate players wearing karate suits and doing karate moves in timed bouts of karate fighting! I think that’s why the look and feel and rules became better defined. At a high level of abstraction it’s easy to say that Karate Champ is like Fist is like IK1 is like Tekken and so on. They all feature bouts of timed karate-type gameplay.

Archer Maclean, developer of International Karate

In 1984, Data East released an arcade fighting game called Karate Champ. [2] [3] The game was a commercial success in arcades, [4] becoming the top grossing cabinet in both Japan and America. [5] [6] The game once again became a best-seller when it was re-released for home computers, [4] becoming the first game to receive a "Diamond Award" from the Software Publishers Association for sales above 500,000 units. [7] Karate Champ is considered the first fighting game, [2] and the player versus player version is the first fighting game to allow two players to fight each other. [8]

In 1985, System 3 began producing a karate game of their own, when their programmer and artist walked off the project. They approached game developer Archer Maclean to salvage the project, who decided re-start development by emulating other popular arcade martial arts games, such as The Way of the Exploding Fist. [9] The final product was International Karate, which was published as World Karate Championship by Epyx in North America. [10] [11] The game went on to sell over 1.5 million copies in the United States, as the first European-made game to top the Billboard software charts. [10]

The success of International Karate attracted scrutiny from competitors, [9] and Data East alleged that the game had copied their game Karate Champ without authorization. [12] Maclean began to receive questions about the games' similarities, and he responded that two games about organized karate matches are likely to be similar. [9] There indeed were similarities such as the scoring systems, referees, and several fighting moves. [12] Also the games both one combatant wearing white, and the other wearing red, with a bonus round between matches where the combatants break bricks and dodge objects. [13] Data East sued Epyx for copyright infringement, as well as infringement in Karate Champ's Trademark and Trade Dress. [13]

Law

Courts have used the substantial similarity test to determine whether one work has unlawfully copied another, while allowing copying in instances where the similarities are not owned by anyone. [14] One of the most influential cases in this area was Atari v. Amusement World from 1981, where the court listed numerous similarities between the games Asteroids and its alleged clone, Meteors. [14] Despite twenty-two similarities, the court determined that these were unprotected ideas that are inherent to the game concept of shooting rocks in space. [12] At the time, it was one of the only cases to rule in favor of the defendant, based on the idea-expression distinction that copyright does not protect broad ideas, only unique expression. [15] Using similar principles, the court concluded that the video game K.C. Munchkin! infringed several protected elements of Pac-Man , in Atari, Inc. v. North American Philips Consumer Electronics Corp. [16] At the time, courts had started to apply complex copyright principles to video games to show that certain elements are ineligible for copyright protection. This includes the scènes à faire doctrine that generic scenes cannot be owned by anyone, as well as the merger doctrine that no one can own the expression to an idea if that's one of the only ways to express it. [14]

Ruling and appeal

District Court

The case was heard in the United States District Court for the Northern District of California, where the court ruled that Epyx had infringed upon Data East's copyright, but not their trademark. [1] One of the issues was whether Epyx had accessed Data East's game. Since they provided no evidence that they created their game independently, the similarities were strong enough for the district court to infer that Epyx likely purchased it and discovered the underlying program. [17] Even though the district court acknowledged a few cosmetic differences between the games, they still concluded that the idea expressed in both games is identical. [1] A major factor in the ruling was the determination that the average consumer, a 17.5 year old male, would subjectively regard the two games as substantially similar. [17] The court ordered a permanent injunction against Epyx, and an impoundment that restrained Epyx from further sale or distribution of World Karate Championship. [18] Epyx was required to recall all copies of the infringing work. [9]

Appeal

Judge Stephen S. Trott wrote the opinion for the United States Court of Appeals for the Ninth Circuit. Stephen S. Trott Circuit Judge.jpg
Judge Stephen S. Trott wrote the opinion for the United States Court of Appeals for the Ninth Circuit.

Epyx appealed the case to the United States Court of Appeals for the Ninth Circuit, alleging that the district court was mistaken about the substantial similarity between the games. [1] [19] Epyx did not dispute that Data East owned a valid copyright in Karate Champ, but disputed that there had been direct copying, and that the similarities between the games were evidence of copyright infringement. [1] The central issue in the appeal was whether the similarities between the games were result of unlawful copying, or if they were the inherent result of making a game about karate. [17]

Writing for the appeal court, Judge Stephen S. Trott noted that copyright disputes seldom have evidence of one party directly copying another. [1] Thus, Data East needed to provide circumstantial evidence that Epyx had copied them, including evidence that Epyx had access to Karate Champ while making World Karate Championship, and that the two games were substantially similar. [1] To determine the question of substantial similarity, Judge Trott applied the framework used in the copyright case Sid & Marty Krofft Television Productions Inc. v. McDonald's Corp. , with an additional analysis of elements that fall outside of copyright protection. [17] An analysis of substantial similarity should exclude unprotectable elements, which are eliminated by applying the idea-expression dichotomy, the merger doctrine, and the scènes à faire doctrine. [14] The court summarized the principle that "no substantial similarity of expression will be found when the idea and its expression are inseparable." [1]

The court found that the games shared fifteen characteristics. [20] However, the court determined that these characteristics, "which consist of the game procedure, common karate moves, the idea of background scenes, a time element, a referee, computer graphics, and bonus points, result from either constraints inherent in the sport of karate or computer restraints." [1] This echoed the analysis in Atari v. Amusement World, explaining that the variety of possible expression was limited by the technology, thus raising the likelihood that any game's expressive elements would merge with the idea. [14] Since the two games were not similar enough to constitute copyright infringement, the question of access became moot. [17] The court further explained that "the visual depiction of karate matches is subject to the constraints inherent in the sport of karate itself," and many of the similar elements are "indispensable, or at least standard" to creating a karate game. [21] Since many of these features are stereotypical of karate, they are not protected by copyright. [20] After excluding unprotectable elements, such as functional rules and generic scenes related to karate, the court determined that the remainder of the games were not substantially similar. [12] Judge Trott further stated that a 17.5 year old male would not find the games similar, contradicting the finding of the lower court. [17] The appeal ruled that the district court had erred in their analysis, and ordered the injunction to be lifted. [1]

Effects

The case was among several early rulings that applied the scènes à faire principle to video games, and became cited in further cases. [22] In the 1994 case Capcom U.S.A. Inc. v. Data East Corp. , Data East found itself defending a claim that their game Fighter's History had violated the copyright in Street Fighter II. [12] Data East responded to Capcom that any similarities between the two games were inherent to the fighting game genre and not protected by copyright, and moreover, Karate Champ was the first game in the genre. [23] Data East successfully defended the claim, ironically by using similar reasoning that had been used against them in Data East v. Epyx. [12] [24] As a result, most lawsuits about alleged video game clones were settled between the mid-1990s through to the mid-2000s. [22]

The Data East v. Epyx case was also cited in Apple Computer, Inc. v. Microsoft Corporation, where the court said that unprotected expression could not support any finding of infringement. [25] Even outside the software industry, Pasillas v. McDonald's Corporation cited the legal principles from Data East v. Epyx to explain that infringement cannot be proved through similarity between standard elements. [26]

Legacy

This case is remembered for building on the legal reasoning in Atari v. Amusement World , where the courts first applied the scènes à faire principle to video games. [12] [22] It's also an early example of the courts dissecting the similarities between two video games, before determining if the similar elements are protected by copyright. [27] At the time, the Santa Clara High Technology Law Journal observed that the decision would provide more clarity about what similarities are considered infringing, bringing video games into conformity with other audio-visual works. [17] The University of Pennsylvania Law Review noted that these early rulings were shaped by the technical constraints of the era, excluding similarities that might result from the limited range of expression in early video game technology. [14]

Contrasting it with later rulings, intellectual property attorney Jack Schecter noted it among early cases where "courts seemed to have a difficult time conceiving of copyright protection that would extend beyond the strict confines of the art and sound assets included in a game." [28] Swatee Mehta noted that the intrinsic-extrinsic test used by the Ninth Circuit almost always led to a finding of non-infringement. [29] John Quagliariello similarly argued that this was one of several cases that made it near impossible for a video game copyright holder to win a lawsuit against a potential infringer, especially considering the cost of a lawsuit versus the risk of an unfavorable ruling. [22] Attorney Stephen C. McArthur mentioned it among several rulings that were permissive of clones, until that pattern changed in 2012. [12]

Legal scholars have determined that the permissive approach to video game clones shifted in 2012, with the rulings in Tetris Holding, LLC v. Xio Interactive, Inc. and Spry Fox, LLC v. Lolapps, Inc. [12] [22] [28] Courts have noted the increased graphical power of modern video game platforms, which opens up new possibilities for artistic expression compared to early cases such as Data East v. Epyx, when it was harder to express an idea in new ways. [14]

See also

Related Research Articles

The idea–expression distinction or idea–expression dichotomy is a legal doctrine in the United States that limits the scope of copyright protection by differentiating an idea from the expression or manifestation of that idea.

<span class="mw-page-title-main">Epyx</span> Defunct video game developer and publisher

Epyx, Inc. was a video game developer and publisher active in the late 1970s and 1980s. The company was founded as Automated Simulations by Jim Connelly and Jon Freeman, originally using Epyx as a brand name for action-oriented games before renaming the company to match in 1983. Epyx published a long series of games through the 1980s. The company is currently owned by Bridgestone Multimedia Group Global.

<i>Karate Champ</i> 1984 video game

Karate Champ, known in Japan as Karate Dō, is a fighting game developed by Technōs Japan and released in arcades by Data East in 1984. A variety of moves can be performed using the dual-joystick controls using a best-of-three matches format like later fighting games. The game was commercially successful, especially in the United States where it was the highest-grossing arcade game of 1985 and the best-selling home computer game up until 1989. Karate Champ established and popularized the one-on-one fighting game genre, for which it is considered one of the most influential games of all time.

A scène à faire is a scene in a book or film which is almost obligatory for a book or film in that genre. In the U.S. it also refers to a principle in copyright law in which certain elements of a creative work are held to be not protected when they are mandated by or customary to the genre.

<i>International Karate</i> 1985 video game

International Karate is a fighting game developed and published by System 3 for the ZX Spectrum in 1985 and ported to various home computers over the following years. In the United States it was published by Epyx in 1986 as World Karate Championship.

<span class="mw-page-title-main">Video game clone</span> Video game that resembles another video game

A video game clone is either a video game or a video game console very similar to, or heavily inspired by, a previous popular game or console. Clones are typically made to take financial advantage of the popularity of the cloned game or system, but clones may also result from earnest attempts to create homages or expand on game mechanics from the original game. An additional motivation unique to the medium of games as software with limited compatibility, is the desire to port a simulacrum of a game to platforms that the original is unavailable for or unsatisfactorily implemented on.

<i>Computer Associates International, Inc. v. Altai, Inc.</i> American legal case

Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 is a decision from the United States Court of Appeals for the Second Circuit that addressed to what extent non-literal elements of software are protected by copyright law. The court used and recommended a three-step process called the Abstraction-Filtration-Comparison test. The case was an appeal from the United States District Court for the Eastern District of New York in which the district court found that defendant Altai's OSCAR 3.4 computer program had infringed plaintiff Computer Associates' copyrighted computer program entitled CA-SCHEDULER. The district court also found that Altai's OSCAR 3.5 program was not substantially similar to a portion of CA-SCHEDULER 7.0 called SYSTEM ADAPTER, and thus denied relief as to OSCAR 3.5. Finally, the district court concluded that Computer Associates' state law trade secret misappropriation claim against Altai was preempted by the federal Copyright Act. The appeal was heard by Judges Frank Altimari, John Daniel Mahoney, and John M. Walker, Jr. The majority opinion was written by Judge Walker. Judge Altimari concurred in part and dissented in part. The Second Circuit affirmed the district court's ruling as to copyright infringement, but vacated and remanded its holding on trade secret preemption.

<i>Midway Manufacturing Co. v. Artic International, Inc.</i> U.S. Court of Appeals case

Midway Manufacturing Co. v. Artic International, Inc., 704 F.2d 1009, was a legal case where the United States Court of Appeals for the Seventh Circuit found that Artic violated Midway's copyright in their arcade games Pac-Man and Galaxian. The lawsuit was part of a trend of "knock-off" video games in the early 1980s, with courts recognizing that a video game can qualify for protection as a copyrighted audiovisual work.

Analytic dissection is a concept in U.S. copyright law analysis of computer software. Analytic dissection is a tool for determining whether a work accused of copyright infringement is substantially similar to a copyright-protected work.

Substantial similarity, in US copyright law, is the standard used to determine whether a defendant has infringed the reproduction right of a copyright. The standard arises out of the recognition that the exclusive right to make copies of a work would be meaningless if copyright infringement were limited to making only exact and complete reproductions of a work. Many courts also use "substantial similarity" in place of "probative" or "striking similarity" to describe the level of similarity necessary to prove that copying has occurred. A number of tests have been devised by courts to determine substantial similarity. They may rely on expert or lay observation or both and may subjectively judge the feel of a work or critically analyze its elements.

The Abstraction-Filtration-Comparison test (AFC) is a method of identifying substantial similarity for the purposes of applying copyright law. In particular, the AFC test is used to determine whether non-literal elements of a computer program have been copied by comparing the protectable elements of two programs. The AFC test was developed by the United States Court of Appeals for the Second Circuit in 1992 in its opinion for Computer Associates Int. Inc. v. Altai Inc. It has been widely adopted by United States courts and recognized by courts outside the United States as well.

<i>See v. Durang</i>

See v. Durang (1983) was a case where the author of a play claimed that another playwright had based a second play on a draft script that the plaintiff had written, infringing on its copyright. The court refused to consider the process by which the second play had been created, but chose to simply compare the end results. The court found no infringement, coining the axiom, "Copying deleted or so disguised as to be unrecognizable is not copying."

<i>Brown Bag Software v. Symantec Corp.</i>

Brown Bag Software v. Symantec Corp. is an intellectual property law case in which the United States Court of Appeals for the Ninth Circuit affirmed-in-part and vacated-in-part the previous ruling of the United States District Court for the Northern District of California. Brown Bag Software sued Symantec Corporation and John L. Friend, an individual software developer for Softworks Development, for copyright infringement and several state law claims regarding the similarity of Symantec Corporation's and Brown Bag Software's computer outlining programs.

The protection of intellectual property (IP) of video games through copyright, patents, and trademarks, shares similar issues with the copyrightability of software as a relatively new area of IP law. The video game industry itself is built on the nature of reusing game concepts from prior games to create new gameplay styles but bounded by illegally direct cloning of existing games, and has made defining intellectual property protections difficult since it is not a fixed medium.

<i>Fighters History</i> (video game) 1993 video game

Fighter's History is a 1993 arcade fighting game developed and published by Data East. It's the inaugural game in the Fighter's History series. The main unique feature of the Fighter's History is its weak point system, which allows the player to temporarily stun an opponent by repeatedly hitting their weak point.

<i>Tetris Holding, LLC v. Xio Interactive, Inc.</i> 2012 legal case

Tetris Holding, LLC v. Xio Interactive, Inc., 863 F.Supp.2d 394, was a 2012 American legal case related to copyright of video games, confirming that a game's look and feel can be protected under copyright law. Tetris Holding is a company that holds the copyright to the original Tetris game from 1985 and licenses those rights to game developers. Xio Interactive is a game developer that released Mino in 2009, a mobile game based on the gameplay of Tetris. Mino was downloaded millions of times, and Tetris Holding filed a DMCA notice and eventually a lawsuit against Xio for copyright infringement.

<i>Capcom U.S.A. Inc. v. Data East Corp.</i> 1994 legal case

Capcom U.S.A. Inc. v. Data East Corp., 1994 WL 1751482 was a 1994 legal case related to the copyright of video games, where Capcom alleged that Data East's game Fighter's History infringed the copyright of Capcom's game Street Fighter II. It was revealed that the design documents for Fighter's History contained several references to Street Fighter II, leading Capcom to sue Data East for damages, as well as a preliminary injunction to stop the distribution of the infringing game. In spite of the intentional similarities between the two games, the court concluded that Data East did not infringe upon Capcom's copyright, as most of these similarities were not protected under copyright. Judge William H. Orrick Jr. applied a legal principle known as the merger doctrine, where courts will not grant copyright protection where it would effectively give someone a monopoly over an idea.

<i>Spry Fox, LLC v. Lolapps, Inc.</i> 2012 American legal case

Spry Fox, LLC v. Lolapps, Inc., No. 2:12-cv-00147, was a court case between two video game developers, where Spry Fox alleged that the game Yeti Town, developed by 6waves Lolapps, infringed on their copyrighted game Triple Town. While the case was settled out of court, preliminary opinions by Judge Richard A. Jones affirmed that a video game's "look and feel" may be protected by copyright, affirming the federal district court decision in Tetris Holding, LLC v. Xio Interactive, Inc. from earlier the same year.

<i>Atari, Inc. v. North American Philips Consumer Electronics Corp.</i> 1982 legal case

Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607, is one of the first legal cases applying copyright law to video games, barring sales of the game K.C. Munchkin! for its similarities to Pac-Man. Atari had licensed the commercially successful arcade game Pac-Man from Namco and Midway, to produce a version for their Atari 2600 console. Around the same time, Philips created Munchkin as a similar maze-chase game, leading Atari to sue them for copyright infringement.

<i>Atari v. Amusement World</i> 1981 legal case

Atari Inc. v. Amusement World Inc., 547 F.Supp. 222 is a legal case in which the United States District Court for the District of Maryland held that Amusement World's arcade game Meteors did not violate Atari's copyright in their game Asteroids.

References

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  25. ↑ Apple Computer, Inc. v. Microsoft Corp. , 35F.3d1435 (9th Cir.1994).
  26. ↑ Pasillas v. McDonald's Corporation, 927F.2d440 (9th Cir.1991).
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