If plaintiffs aren’t clever enough to present the courts with the basics, notably the materials that they assert that others exploited and owe them money for, then judges have no choice but to dismiss their royalties and copyright infringement claims, the U.S. Court of Appeals for the Ninth Circuit has reminded a complaining party smart enough to help create a best-selling video game.

Unfortunately for Robin Antonick, the appellate judges recently blocked his attempt to recover royalties from Electronic Arts Inc. for his claimed work on the industry giant’s top-selling product, the John Madden Football video game.

Antonick was the coder who created the first Madden football vide game in 1988. It was played on the Apple II computer. After the immediate success of that debut version, EA asked Antonick in 1989 to jump on a second version, which would be played on the Sega Genesis and Super Nintendo systems.

But in the middle of 1990, the company told him to stop his work because EA said it had decided to go in a different direction with the amusement. Then, in November, 1990 EA Sports released Madden II, and from 1992 until 1996, the company continued to release regular installments of the game each year for both the Sega and Super NES systems.

Now, more than two decades after creating the celebrated and highly profitable game with its cult following, Antonick sued EA, seeking royalties he claims he was owed on the Sega and Super NES console versions of the game under the contract he signed with the company.

A unanimous appellate ruling

U.S. Circuit Judge Andrew Hurwitz wrote the opinion for the unanimous appellate panel, which  included U.S. Circuit Judges Andrew Kleinfeld and Johnnie Robinson. The appellate ruling affirmed a decision by U.S. Senior District Judge Charles Breyer in San Francisco, who overruled a jury verdict in Antonick’s favor. Breyer found  the coder’s case defective because he failed to put into evidence the disputed computer code as well as images of the game in play.

“Antonick was … required to prove that EA ‘copied protected elements of the work’ ” Hurwitz wrote in the 14-page appellate finding. He added: “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. But none of the source code was in evidence. The jury, therefore, could not compare the works to determine substantial similarity.”

His 1986 contract with EA called for Antonick to receive royalties for any derivative works created from Apple II Madden “within the meaning of United States copyright law.” But the appellate court applied a two-part test, with an intrinsic and extrinsic scrutiny, to decide if the work was substantially similar to another. The “extrinsic test” made an objective comparison of specific expressive elements; the “intrinsic test” made a subjective comparison of those same elements. But jurors could not make the legally required intrinsic test because none of the source code in evidence.

Antonick’s always faced an uphill battle to prove that the 1990 Sega and Super NES versions of Madden Football copied essential elements of his original version. That’s because, at trial, he argued that there was no need to introduce the source code. Instead, he relied on his argument that EA had clear access and motive to exploit his work and owed it him for it. He also put forth testimony on this by experts and other EA employees.

The appellate court noted that the best way to demonstrate similarities, differences, and infringement, as well as to show why royalties might be deserved, would be to put the various versions of the games’ source code — the materials Antonick claimed to write — side by side and to show it to jurors and the court so a “reasonable” person could see irrefutably how they matched up, or didn’t.

Antonick also failed to persuade the appellate court to accept his royalties’ claim, based on a clause of his EA contract that said he would be compensated for derivative works on computing platforms that were in the same microprocessor family as the original Apple II.

Could isn’t good enough

Antonick told the court this technical requirement had been met because the Sega and Nintendo systems, [emphasis added] “could use the same instruction set, instruction size, and data size.” But Hurwitz and the panel rebuffed this claim, saying a strict interpretation of the contract must be binding, and “Antonick’s factual premise may well be correct. But we deal here with contract interpretation, and the word ‘could’ is not in the contractual definition.”