LGJ: Dante's Infringement (or lack thereof)

Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

While I'm still waiting for my copy of Dante's Inferno, I have been checking out the review sites, Achievement guides and message boards in preparation for the arrival of the game. One question that keeps being asked over and over again, between many different boards, is "How is EA not being sued over this game?" While the overwhelming majority of these posts reference God of War, I have even seen mention of a "license" to Inferno (as a part of the Divine Comedy). Before I begin, I know many people might have issue with me writing this before playing, but I can assure you between the videos available online and the demo, I've experienced enough of the game to be able to come to a simple conclusion: No infringement here.

Let's get the latter, more absurd suggestion off the table first. There's not now, nor will there ever a be, a license to Inferno, the epic poem by Dante. Why is that? It's a part of the public domain. It, as a work, would have been eligible for copyright had such laws been in place at the time, but even with the modern expansive rules, the copyright would have ended hundreds of year ago. After all, taking the normal 'life of the author plus 70 years' for works created after 1978 in the US, 70 years after Dante's death was 1391. We're well past 600 years after Dante's death at this point; in fact, 2021 will mark the 700 year anniversary of Dante's death, 10 times the length granted by statute. So, this particular statement was absurd even for forum posts, but the idea that Dante's Inferno infringes on God of War isn't much more sound.

Let's start with a simple question: What is copyright infringement? Simply put, when someone misappropriates a copyrighted element of a work, there's copyright infringement. This is a lot simpler to look at in other works. If you make an unauthorized copy of a musical work or movie, it's an infringement. If you turn a book into a movie, that would be copyright infringement. But these obvious examples aren't as easy to translate into the game world. In fact, an ideal case study is a NES game called Journey to Silius. It's a game whose history you have to know to understand why it's relevant to the discussion, and the Happy Video Game Nerd has a pretty good overview of the game and its backstory (if you want to see more, you might also check out Until We Win).

For those who just want the synopsis, Journey to Silius was originally a game built on the Terminator license. In fact, if you know this fact, you'll see just how many Terminator elements remained in the finished product after SunSoft lost the Terminator license and the game became Journey to Silius. And yet, despite those elements, the game was not copyright infringement. The collection of elements that remained in Journey to Silius weren't enough elements to infringe the original work.

Which, to many points, begs the question: Where's the line? How much has to be infringed to be infringement? Well, that is an entirely subjective test, despite how many myths to the contrary exist on the internet. There's not a bright line, like a number of bars in a song that becomes an infringement. Instead, it's looking at the total amount of copying in the broad context of the work. Ultimately, all of the different legal tests are a subjective analysis of pieces in the context of the whole. From a story perspective, there is no common element between Dante's Inferno and God of War. The complaints, by and large, have to do with the gameplay mechanics.

Obvious infringement on that count would be reuse of the engine, or, theft of the engine without a license. There's no evidence of this whatsoever, so it's a relatively moot point. After all, similar gameplay mechanics can be achieved with different engines, and short of a patent, you can't protect a game's idea. Crazy Taxi and Simpsons Road Rage showed this very concept. But for the patent held on Crazy Taxi, there was no infringement. Or rather, the only potential source of infringement would be the "look and feel" claim.

The "look and feel" claim is one that has not been successful, but rests on the idea that one software can copy the "look and feel" of another. This claim was ultimately rejected in Lotus v. Borland, but that does not mean the claim isn't still made. It's ultimately a weak position, but it's the only position to make a real infringement claim for Dante's Inferno as it relates to God of War. And ultimately that is the extent of the reality to annoyed fanboy rants on various forum sites across the internet. Not that anyone is likely terribly surprised that random forum rants have little grounding in reality, but at least the next time you run across one, you can point to this column.

Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc., where he is a board member of the Dallas chapter. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

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