Envision the big fellow, hands waving, he’s a little wheezy and loud as he pronounces: “So this guy goes this way, and then this one that way, and, everyone’s running around and… Boom! Suddenly you have what looks like money! Then, doink! Flags fly, whistles blow and, Bang! Suddenly everything’s going in reverse…” Thanks, John Madden. That might be the legendary coach and broadcaster’s distinctive description for action in Sunday’s NFL Superbowl. It also could serve as the play-by-play for a recent legal upset and remand involving Electronic Arts, a lawsuit over its Madden video football game and an $11-million judgment awarded by a jury against the manufacturer and to game developer Robin Antonick.
It’s hard to believe that the ever-popular Madden NFL video game prototype originally was developed more than 20 years ago. Antonick was hired in 1984 and signed a development contract in 1986 that entitled him to royalties on derivative versions of Madden. He later became aware of the continued use of his intellectual property in 2009 when Electronica Arts (EA) celebrated its 20th anniversary and its publicity materials traced its current software back to his software, not the version that was subsequently developed by Park Place.
Antonick sued EA in 2011 for breach of contract and the judge allowed the case to go to trial. The case included copyright issues as to whether it was possible to copyright source codes of field width or play formations. The jury determined that there were substantial similarities in plays and formations between the games and Antonick was awarded $11 million in damages for Madden games created prior to 1996.
But on Jan. 22, U.S. District Judge Charles Breyer ruled that not all copying of protected expression results in copyright infringement and “for an unauthorized use of a copyrighted work to be actionable, the use must be significant enough to constitute infringement.” He applied the intrinsic test, “which examines an ordinary person’s subjective impressions of the similarities between two works.” The judge further reasoned that the “works must be compared as a whole because the relevant inquiry is ‘whether a substantial portion of the protectable material in the plaintiff’s work was appropriated- not whether a substantial portion of defendant’s work was derived from plaintiff’s work.’”
Breyer determined that the jury had no evidence that the games were virtually identical because there was no opportunity to view each version of the game and he conditionally granted EA’s motion for a new trial, reversing the initial court ruling.
Robert Carey, Antonick’s attorney, said his client would explore his options – whether to pursue a new trial, which would include the games after 1996, or to take the matter up to the U.S. Court of Appeals for the Ninth Circuit.
As the legal dispute grinds on, in keeping with the big football doings this weekend, here’s a glimpse at the coach talking about his role with this best-selling gaming classic: