In Bissoon-Dath v. Sony Computer Entertainment
America, Inc., the US District Court for the Northern District
of California granted summary judgment in favour of Sony in a
copyright dispute over the popular God of War video
The plaintiffs alleged that Sony and a former employee had
infringed the plaintiffs' copyrighted works (two treatments,
two screenplays and a map) to develop the God of War video
game. Both the plaintiffs' works and the video game involve a
mortal human on a quest at the behest of a Greek god. Sony
successfully moved for summary judgment, contending that any
similarities between elements of the plaintiffs' works and
God of War were not protectable under copyright law.
To succeed in a copyright infringement action in the US, the
plaintiff must establish that he or she owns a valid copyright in
the work at issue and that the defendant copied the work. As the
plaintiffs in this case did not present direct evidence of copying,
they had to show that the defendants had access to the work and
that the works were substantially similar.
On a motion for summary judgment, the court applied the
"extrinsic test" for determining substantial similarity.
That test involves "a comparison of specific, concrete
elements, focusing on 'articulable similarities between the
plot, themes, dialogue, mood, settings, pace, characters, and
sequence of events.'" The court will filter out and
disregard non-protectable elements.
In her reasons for decision, Judge Patel noted that
"Copyright law protects a writer's expression of ideas but
not the ideas themselves." If, however, the author strings
together a significant number of unprotectable elements, that
sequence of events may be eligible for copyright protection. To
satisfy the test, the court will look to see if there are
sufficient similarities and common patterns between the sequence of
events and the relationships between them.
After examining the various concrete elements, Judge Patel
concluded that no reasonable juror could find substantial
similarity of expression between God of War and the
plaintiffs' works, even if access to all of plaintiffs'
works were proven. In particular, she found that:
There were some similarities between the stories' plots,
but the motivations, tasks and accomplishments of the heroes were
different. Once the unprotectable elements were filtered, the plots
were only similar at a generalized level.
The shared settings were "generic and clichéd for
stories involving ancient Greece and Greek gods."
The characters were stock figures, which "have been used
widely in both ancient and modern artistic words, in the naming of
astronomical bodies and spacecraft, and in other fields."
The sequence of elements and the relationships between them
McCarthy Tétrault Notes
The Sony case is just one of many cases around the world where
judges have been careful to guard the balance between the freedom
to copy ideas and concepts and the restrictions that copyright
imposes on copying of expression in copyright materials. A good
Canadian example is Delrina Corp. v. Triolet Systems
Inc. Another example is the UK case, Baigent &
Anor v. The Random House Group Ltd.
Separating ideas and expression can often be a difficult task,
but it is a fundamentally important one. Courts are sometimes
challenged in delineating the boundaries as the recent
Québec case, Robinson c. Films Cinar Inc.
illustrates. However, the idea-expression dichotomy plays a
critical role that should not be lost when assessing
copyrights' framework role in mediating between the freedom to
copy and to compete in the marketplace of ideas and the protection
that copyright confers on creative labours (or as we say in Canada,
works created with sufficient "skill and judgement" to
make them original).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Software license agreements generally require the customer to pay fees for the software license and related services, which fees are usually based upon the duration of the license and the manner in which the customer is allowed to use the software, together with applicable taxes and withholdings.
In less than nine months, on July 1, 2017, persons affected by a contravention of Canada's anti-spam legislation will be able to invoke a private right of action to sue for compensation and potentially substantial statutory damages.
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