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The U.S. Court of Appeals for the Ninth Circuit adopted and affirmed the trial court’s decision that no reasonable juror could conclude that Sony’s God of War videogame contained substantially similar ideas and expression to any of the protectable elements contained in the plaintiffs’ works. Dath v. Sony Computer Entm’t Am., Inc., Case No. 10-15783 (9th Cir., July 29, 2011) (per curiam).
Plaintiffs Jennifer B. Dath and Jonathan Bissoon-Dath sued Sony alleging that Sony’s God of War video game infringed their copyrights pertaining to two treatments, two screenplays and an illustrated map. To prevail on their claim, the plaintiffs were required to show that Sony had copiedprotected elements of that work. To establish copying, the plaintiffs had to show that Sony had access to the plaintiffs’ works and that Sony’s God of War game is substantially similar to the plaintiffs’ copyrighted works.
To determine whether the works in question are substantially similar, the court applied an extrinsic test examining articulable similarities between the plot, themes, dialogue, mood, settings, pace, characters and sequence of events. In this analysis, non-protectable elements are filtered out and disregarded because copyright law protects only a writer’s expression of ideas and not the ideas themselves. Non-protectable elements include general plot ideas, the scenes that flow naturally from them (scènes à faire), stock characters, historical events and clichéd dialogue.
In the works at issue, the court determined that the plot, dialogue, characters and settings were only similar as to non-protectable elements. Concerning alleged plot similarities, the similarities in the parties’ works related to non-protectable elements such as a questing hero acting in accord with a divine power, antagonism between Greek gods and fighting between Athens and Sparta. Concerning alleged similar dialogue, the court determined that the only similar dialogue in the parties’ works was not protectable—the clichéd phrases “knew no bounds” and “none has/have returned.” Concerning alleged character similarities, the plaintiffs alleged similarities in characters such as Greek gods such as Ares, Zeus and Athena. The court determined that such characters were stock figures common not only in many contemporary stories, movies and video games, but also of the Western collective unconscious. While the court acknowledged that the parties’ shared settings of Greece, Athens, Mount Olympus, Sparta and the Underworld did establish some similarity between the parties’ works, the settings were generic and clichéd for stories involving ancient Greece and Greek gods.
Considering protectable elements of the parties’ works, the district court held that the themes, mood and sequence of events in the works are not similar. For example, Sony’s God of War game employed themes of violence, the search for divine forgiveness and the continuation of war, whereas plaintiffs’ works employed the themes of democracy and achieving an era of peace and prosperity. The plaintiffs’ works generally evoked a light-hearted mood with elements of romance and comedy, whereas Sony’s work was dark and extremely violent. Sony’s game contained virtually no light-hearted or comic moments, which began with the protagonist attempting suicide, repeatedly referenced his memories of and guilt over his past violent deeds and ended with violent images of World War II and Vietnam. Concerning style of storyline, the plaintiffs’ works were all told in a linear, narrative fashion with scenes occurring one after another in logical sequence. Sony’s game opened with what would ultimately be the second-to-last scene and is told through discordant flashbacks.
Based upon the similarities in unprotectable expression and lack of similarities in protectable expression between the parties’ works, the district court concluded that no reasonable trier of fact could conclude that Sony’s game God of War is substantially similar to any of plaintiffs’ works to find infringement. Further, the plaintiffs pointed to no persuasive similarity in dialogue or narration that would suggest actual copying. Recognizing that the particular sequence in which an author strings a significant number of unprotectable elements can itself be a protectable element, the court concluded that the sequences of elements and the relationships between the elements were entirely dissimilar between the parties’ works.
The 9th Circuit affirmed the district court’s “well-reasoned” decision in a one-sentence order.
© 2013 McDermott Will & Emery
