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In Late Game Upset, EA Wins Copyright Dispute Over Madden Football

The Recorder

U.S. District Judge Charles Breyer became the judicial equivalent of Seattle Seahawk Richard Sherman on Wednesday, swatting away a potentially lucrative copyright infringement award just as plaintiffs appeared on the verge of triumph.

In a stunning order, Breyer entered judgment for Electronic Arts in a dispute with video game designer Robin Antonick, who had accused the company of cheating him out of royalties for the wildly popular Madden Football series.

A jury found last summer that the original game Antonick helped design for the Apple II computer was "virtually identical" to successive versions EA created for other platforms. Antonick's attorneys at Hagens Berman Sopol & Shapiro said at the time the verdict was worth at least $3.5 million and could pave the way for similar awards based on additional versions of the game.

But Breyer ruled Wednesday that Antonick's counsel failed to introduce evidence that the various versions of the game were "virtually identical" when taken as a whole. In particular, Breyer faulted plaintiffs counsel for breaking down the games to elements such as plays and field dimensions during closing argument. He also criticized Antonick's expert, Michael Barr, for relying on visual comparisons of football plays in the games to reverse-engineer the code that generated them.

"By comparing the output, rather than the source code that creates it, Barr impermissibly compared the plays themselves, which, as this court has already held and the law makes clear, are not protectable," the judge wrote.

The order hands a big win to a Keker & Van Nest team led by partner Susan Harriman. Things looked far less rosy last summer after a jury first found that Antonick's claims had not exceeded the statute of limitations, and then in a second phase that the Madden games infringed Antonick's copyright.

"I'm thrilled to see that the claims were resolved in favor of EA," Harriman said Wednesday while still digesting the 23-page order. "It was the right result.

Antonick's lead lawyer, Robert Carey, said he looks forward to taking the case to an appellate court. "We were surprised by the ruling, as there is ample evidence in the record to support the jury's verdict," he said, adding that pretrial rulings may be at issue as well. In post-trial motions Carey and Hagens Berman partner Leonard Aragon had argued that EA waived its arguments by failing to object during the trial.

But Harriman had argued that EA did object to Barr's disputed testimony before trial, only to be overruled. "In sum: the court gave Antonick free reign to mislead the jury—and he did just that," Harriman wrote in her JMOL motion.

Breyer stated in a brief footnote that he had considered the waiver issue and concluded that EA had preserved its arguments.