As plaintiffs could supply no direct evidence of copying, much of the case focused on (a) the question of whether certain science fiction tropes used by Midway were substantially similar to those used by plaintiffs, and (b) whether those plot elements were protectable. Both of the works, for example, involve top-secret programs run by the U.S. Government that employ individuals with psionic powers. Both works also include villains with psionic powers. However, Midway successfully argued that the works were not substantially similar, and that the only similarities between the screenplay and the game were common in many works of science fiction and were thus not subject to ownership by any one author. One of the nation’s foremost experts on science fiction was brought in to testify about critical issues such as pyrokinesis, telekinesis and mind-control.
Judge Florence-Marie Cooper granted Midway’s motions on Dec. 3, 2008, agreeing with our clients that there are “few, if any, similarities between the works at issue that are protectable,” and finding that plaintiffs presented “minimal evidence supporting a reasonable possibility” that Midway even had access to the works at issue. Judge Cooper relied upon the arguments made in Midway’s briefs in coming to the conclusion that “no reasonable juror can find that plaintiffs’ [screenplay and websites,] and defendants’ video game are substantially similar in the expression of their ideas.” The court granted Midway’s motions for summary judgment on both claims of copyright infringement and found that plaintiffs were not entitled to their third claim for an accounting.
Headquartered in Chicago, Midway Games is a leading developer and publisher of interactive entertainment software for major videogame systems and personal computers. Chicago partner Darren Cahr led associates Nicole Murray and Jeffrey Baravetto in representing Midway in this action.