A US judge has rejected a lawsuit claiming that Sony’s God of War infringed copyright in a series of film scripts written by two Californian screenwriters.
The screenwriters, Jonathan Bissoon-Dath and Jennifer Dath, claimed they had written two treatments and two screenplays concerning a Spartan attack on Athens and other events in ancient Greece, which they claimed were copied by Sony in making the God of War game (source: THR).
God of War is of course an PS2 action game set in ancient Greece in which the hero Kratos, a Spartan, kicks various classical ass on the way to replacing Ares as the eponymous god of war.
The writers commenced legal action against Sony and one of its developers, David Jaffe, in February 2008, but subsequent attempts to settle the lawsuit failed. Sony clearly felt that they had a strong case, because they then applied for summary judgment. In other words, they argued that the court should rule in their favour and dimiss the lawsuit because the writers had no legal case to stand on (in the words of the judge, there were “no genuine issues of material fact” and the applicant is “entitled to judgment as a matter of law“).
The trial before Judge Marilyn Hall Patel focused on the writers’ copyright infringement claim, for which the judge said that they had to show:
(1) that they had created and owned valid copyright works; and
The writers had to prove this by: (i) presenting direct evidence of copying by Sony, or (ii) by showing that Sony had access to their works and that there is a substantial similarity between the writers’ works and God of War.
In order to establish these arguments, both parties took Judge Patel through their respective works, meaning presumably she had the opportunity to play God of War all the way if she so chose, though actually it seems that she just relied upon the lawyers’ legal submissions rather than cracking through the game herself. Shame. (Actually, it seemed reasonably clear that Judge Patel was not familiar with games when she initially described God of War as a “multi-hour video game“. A what?)
“An examination of articulable similarities between the plot, themes, dialogue, mood, settings,
pace, characters and sequence of events of God of War and plaintiffs’ works reveals far less
similarity than would be required to overcome summary judgment, even if plaintiffs had proven access [to the scripts]”.
She acknowledged that “there is some degree of similarity between the plots at an extremely generalized level” – the main similarity being that both were set in Ancient Greece and dealt with a battle between men and the Greek Gods. However, citing previous caselaw she said “No one can own the basic idea for a story. General plot ideas are not protected by copyright law; they remain forever the common property of artistic mankind.” (This is of course an appliation of the basic principle that copyright law protects the expression of ideas, not the ideas themselves.)
As a result, she held that “No reasonable trier of fact could conclude that God of War is substantially similar to any of plaintiffs’ works” and therefore dismissed the lawsuit against Sony.
No doubt this will come as a great relief to Sony, which of course is about to release God of War III.
Reading the judgment, it seems that this was an ambitious claim by the writers from the outset. They had written film scripts about events taking place in Ancient Greece and sought to argue that Sony had copied those scripts when it developed God of War even though the judge went on to find that:
- There was no evidence of direct copying by Sony
- There was no evidence that Sony had even access to the scripts
- The writers sought to bring the claim based on “general plot ideas” and “stock elements that have been used in literary and artistic works for years, if not millennia“, none of which are capable of being protected by copyright law
- In fact, there was little similarity in the “plot, themes, dialogue, mood, settings, pace, characters and sequence of events” in the scripts and God of War.
Perhaps the writers thought the lawsuit would settle early on, but as it turned out it fought all the way to trial (which is admittedly fairly rare, certainly in the UK anyway). The judgment does not disclose what the writers actually wanted from Sony, but I would imagine that it included substantial financial damages as well as (potentially) a temporary or permanent injunction against future sales of God of War. Well, no chance of that now (unless they appeal, of course).
The lawsuit reinforces some important lessons about copyright law and how far it goes to protect any copryight work, including games:
- Firstly, copyright law exists to protect the expression of an idea, which you have created through your own skill and labour. It does not give you any ownership of the idea itself. So, writing a script based on an ancient Greek story gives you copyright over that script but does not give you copyruight over the underlying ancient Greek story.
- Secondly, even if you do have a copyright work and you think it has been copied, you have to prove to a judge that there has been “substantial copying” of your copyright work.
- Thirdly, copyright lawsuits are exercises in detail and precision. The claim for copyright infringement needs to be established in very precise, concrete terms by reference to specific elements of your work. Just generic references to similarities (in this case, to plot, themes, dialogue, mood, settings, pace, characters and sequence of events) generally won’t cut it.
- Fourthly, copyright lawsuits can be much more complex even than this case. For example, although this lawsuit didn’t get that far, there are entirely separate issues regarding defences to copyright infringement and how to assess loss.
And there’s also some lessons about lawsuits generally here:
- If you think you have a lawsuit against someone, or might be defending one from someone else, then consider your options seriously and get legal advice early on.
- Your lawyers will then be able to advise you on your legal prospects of success and what steps you can take to protect your position. In this case, Sony’s lawyers advised them to apply for summary judgement to get the case disposed, and it seems that was the right route to take.
We’ve written more about games lawsuits and what you can do about them here.
The views expressed in this post are the author’s own personal views and not his employer’s!