BISSOON-DATH v. SONY COMPUTER ENTERTAINMENT AMERICA, INC.

• Decision Date: 09 March 2010
• Docket Number: No. C 08-1235 MHP.,C 08-1235 MHP.
• Citation: 694 F. Supp.2d 1071
• Parties: Jonathan BISSOON-DATH and Jennifer B. Dath a.k.a. Jennifer Barrette-Herzog, Plaintiffs, v. SONY COMPUTER ENTERTAINMENT AMERICA, INC., David Jaffe, and Does 1 through 100, inclusive, Defendants.
• Court: U.S. District Court — Northern District of California

694 F. Supp.2d 1071

Jonathan BISSOON-DATH and Jennifer B. Dath a.k.a. Jennifer Barrette-Herzog, Plaintiffs, v. SONY COMPUTER ENTERTAINMENT AMERICA, INC., David Jaffe, and Does 1 through 100, inclusive, Defendants.

No. C 08-1235 MHP.

United States District Court, N.D. California.

March 9, 2010.

Daniel Thomas Rockey, Heller, Ehrman, LLP, Menlo Park, CA, Kevin Kin-Man Ho, Kevin Ho, Esq., Micah R. Jacobs, Mbv Law LLP, Eric K. Ferraro, M. Taylor Florence Sunita Koneru, Bullivant Houser Bailey PC, San Francisco, CA, for Plaintiffs.

Brooke Oliver, Rosaclaire Baisinger, Oliver & Sabec P.C., San Francisco, CA, for Defendant.

MEMORANDUM & ORDER Re: Defendants' Motion for Summary Judgment

MARILYN HALL PATEL, District Judge.

In this action, Jonathan Bissoon-Dath ("Bissoon-Dath") and Jennifer B. Dath¹ ("Dath") (collectively "plaintiffs") allege that Sony Computer Entertainment America, Inc. ("Sony") and its former employee David Jaffe (collectively "defendants") misappropriated plaintiffs' original copyrighted works to develop the popular God of War video game. Defendants now move for summary judgment. Having considered the parties' arguments and extensive submissions, the court enters the following memorandum and order.

BACKGROUND

I. Parties

Plaintiffs Bissoon-Dath and Dath are individuals living in Davis, California. Docket No. 97 (Joint Statement of Undisputed Facts or "JSUF") at 2. At some or all times relevant to this action, Dath acted as an agent for Bissoon-Dath. Docket No. 84 (Bissoon-Dath Dec.) ¶¶ 22-24. Defendant Sony is a corporation headquartered in Foster City, California, which distributes PlayStation 2 and PlayStation Portable ("PSP") video game consoles and related games. JSUF at 2; Docket No. 1 (Complaint) ¶¶ 6-8. Defendant Jaffe was at all times relevant to this action an employee of Sony. He was the lead designer of the God of War video game, which Sony commercially launched in March 2005.² Docket No. 35 (Jaffe Dec.) ¶¶ 3-4; Docket No. 33 (Becker Dec.) ¶ 5.

II. Plaintiffs' Works

Plaintiffs allege defendants infringed their copyrights to one or more of five specific works. These include two treatments, "Theseus: A Screenplay Treatment" ("Theseus") and "The Adventures of Owen" ("Owen"), and two screenplays, "Olympiad Version A" ("Olympiad A") and "Olympiad" ("Olympiad"). Bissoon-Dath Dec. ¶ 10. "Owen" included an original illustrated map of the "Island at the Edge of the Living World" ("the map"), which was created by Dath with input from Bissoon-Dath in February or March 2002. Id. ¶ 21; Docket No. 85 (Dath Dec.) ¶ 21. The five works, including the map, are collectively referred to herein as "plaintiffs' works." Plaintiffs began distributing the works in January or February 2002. Bissoon-Dath Dec. ¶¶ 20-22 & 24.

With certain variations, each of plaintiffs' works tells a similar story. The works open with a Spartan attack on Athens led by the Spartan co-king and/or general Gaylon and the Spartan colonel Balzak. Docket No. 44 (Oliver Moving Dec.), Exh. D ("Owen") at 6; id., Exh. E ("Theseus") at 5; id., Exh. F ("Olympiad") at 4; id., Exh. G ("Olympiad A") at 5. It is later revealed that the Spartan kings are loyal to the god Ares. See Olympiad at 50 (The Spartan solders "must only obey one cause. . . the honor and glory of following their kings in the service of Ares."); id. at 86 (The Spartan kings "get the soldiers to do whatever they want by brainwashing them into believing that the war god, Ares, is the one true god."); see also Olympiad A at 52; Owen at 7; Theseus at 23. As the temporarily beaten Spartan army retreats from Athens, the gods gather and discuss the situation, with Zeus and Athena expressing distaste for the state of war in Greece. Olympiad at 12-13; Olympiad A at 13; Owen at 7; Theseus at 9. In order to restore peace, Zeus decides to order all Greece to declare a truce and participate in an Olympiad. Olympiad at 13; Olympiad A at 14; Owen at 7; Theseus at 9. When Ares and Apollo (and Hermes, in three of the works) object to the plan, the gods agree that Zeus will instead choose a mortal whose quest will be to convince Athens and Sparta to declare a truce. Olympiad at 14-15, 19; Olympiad A at 14-17; Owen at 7; Theseus at 9.

The champion is informed of the quest by a magical nymph before being sent to Athens and then sent forth by the Athenian Council to perform a series of tasks culminating in the truce and the Olympic Games. Olympiad at 19, 35; Olympiad A at 20-21, 37; Owen at 8, 9; Theseus at 10, 13. During his quest, the champion must capture the Nemean Lion, rescue a hostage from the Amazons, rescue a hostage held by Hades in the underworld (in "Owen" and "Theseus" only) and convince Sparta to participate in the truce. Olympiad at 36, 44, 50; Olympiad A at 38, 46, 52; Owen at 10, 12; Theseus at 13, 16, 19. A truce is eventually declared and the Olympic Games are held in Sparta. Olympiad at 57; Olympiad A at 59; Owen at 13; Theseus at 21. While the games are in progress, Sparta secretly attacks Athens. Olympiad at 81; Olympiad A at 83; Owen at 16; Theseus at 19-20. In the end, the protagonist is crowned the Olympic champion, the Spartan co-kings (or General and Dictator, in "Owen" and "Theseus") are removed from power, and the sneak attack on Athens is thwarted. Olympiad at 102, 104; Olympiad A at 104, 106; Owen at 19; Theseus at 41-43. In "Owen," Zeus orders the Spartans to adopt democracy and lift the siege of Athens. Owen at 19. In "Theseus," the Spartan royal guard champion, tired of the sacrifice of justice and freedom in service to Ares, first seizes the Spartan Dictator and then convinces the Spartan army to withdraw from Athens. Theseus at 42-43. In "Olympiad" and "Olympiad A," the stadium crowd overwhelms the Spartans and "an army of the united people of Greece" liberates Athens. Olympiad at 104; Olympiad A at 106. Peace and democracy then reign over Greece. See Olympiad at 104 ("Sparta, never again, threatened sic the rest of Greece, which enjoyed the longest period of peace and prosperity in its history, as city after city adopted the Athenian political system called . . . democracy.") (ellipsis in original); see also Olympiad A at 106; Owen at 20; Theseus at 43.

III. Defendants' God of War Video Game

God of War is a multi-hour video game. JSUF at 3. Sony released God of War in March 2005. Id. The game is rated "M" for a "MATURE 17+ " audience. Id. at 5.

In the game, also set in ancient Greece, the warrior Kratos fights myriad human and mythical opponents and ultimately replaces Ares as the god of war. Oliver Moving Dec., Exh. W (Merged Script) at 45.³ In a series of flashbacks, the player learns that Kratos was once a captain in the Spartan military but rose to command an entire army. Id. at 15. With his army almost annihilated and a barbarian king about to kill him, Kratos offered his life to Ares in exchange for the destruction of his enemies. Id. at 22-23. Thereafter, Kratos led armies in conquest, serving Ares as "a beast, his humanity robbed," until Ares tricked Kratos into killing and burning his own wife and child. Id. at 29, 31. Kratos then rejected Ares and began serving other gods, hoping they would relieve his nightmares of his family's murder. Id. at 4. The action of God of War game-play begins with Kratos awakening from a nightmare and imploring a statue of Athena to relieve his nightmares. Id. Speaking through the statue, Athena offers divine forgiveness to Kratos if he kills Ares. Id. The game manual includes a gathering-of-the-gods scene that explains Athena's request: Zeus, Athena and Ares are gathered to discuss Kratos, and Athena complains that Ares is preparing forces to attack Athens. Jaffe Dec., Exh. E (Game Manual) at 3. This scene does not appear in the game itself.

Having accepted Athena's offer, Kratos travels to Athens and finds that Ares is attacking the city with an army of mythical beasts including Minotaurs and Zombies. Id. at 6-7. The Oracle in Athens tells Kratos he must find Pandora's Box, the only weapon capable of killing Ares. Id. at 16. At the edge of the Desert of Lost Souls, a statue of Athena informs Kratos that he must cross the desert, following and then killing four Sirens to do so, and find a Titan crawling around the desert with the Temple of Pandora chained to his back. Id. at 17-18. Liberally extinguishing his adversaries with his "Blades of Chaos," Kratos quests to find Pandora's Box. He locates it and is dragging it out of the temple when Ares, still attacking Athens but aware of Kratos' achievement, launches a column that impales Kratos. Id. at 32-33. Kratos dies and begins to fall to the underworld, but he scrambles onto the stairway leading into Hades and crawls back to life through a grave near Athens. Id. at 35-36. There he recovers Pandora's Box from Ares, opens the lid and becomes a giant, and defeats Ares in battle. Id. at 38, 42. Later, Kratos attempts suicide by jumping off a cliff into the sea because the gods, despite forgiving him for murdering his family, did not relieve his nightmares. Id. at 43-44. He is then lifted from the sea and directed up a flight of stairs to assume the now-vacant throne of the god of war, from whence he oversees various modern wars, including World War II and the Vietnam war. Id. at 44-45. Bonus scenes reveal that Kratos is actually the son of Zeus and a mortal woman who moved to Sparta when driven out of her village, that Kratos had a weaker brother who died when turned out by the Spartans, and that the ruins of Pandora's Temple were discovered in modern times. Id. at 48-49, 50.

IV. Procedural History

Plaintiffs initiated this action in February 2008. The parties stipulated to a number of continuances to pursue alternative dispute resolution. The parties did not reach a settlement, and defendants thereafter filed the instant motion for summary judgment.

LEGAL STANDARD

Summary judgment may be granted only when, drawing all inferences and resolving all...