By 1993, the last thing I was looking for was an expert witness gig facing off against yet another of the most popular and powerful software developers in the business. So of course I wound up working the expert witness deal for tiny Data East against the all-powerful Capcom, whose Street Fighter II had ignited a revolution which made 2-D fighting games the dominant genre in the electronic gaming world.
I was working in my home office when a gentleman named Michael Hayes called. He was from the law firm of Fenwick & West, a name even I recognized as a heavyweight player. He told me they were defending Data East, which was being sued by Capcom.
“That figures,” I remember thinking. Capcom’s PR people had always been very good to me, whereas I didn’t know anybody at Data East. And, of course, Data East was a relatively small player compared to Capcom, a company so powerful that it tipped the balance of the 16-bit videogame wars when it made a version of SFII available on Sega’s Genesis after having previously played exclusively with Nintendo.
Michael explained that the games in question were Data East’s Fighter’s History and, of course, Capcom’s SFII. As it happened, I had just seen the Data East game at the Kwik-E Mart down the block, so I promised to check it out and get back to him. About three minutes into playing Fighter’s History I figured I didn’t even have to go home. I phoned Michael from a pay phone outside the convenience store. “I’m sorry,” I told him with no small amount of relief. “But if they’re going on ‘look and feel’ I don’t think you’ve got a shot.” “Look and feel” was one of the traditional standards by which copyright infringements were obtained and it’s pretty much what it sounds like: Does the product look and feel the same as a pre-existing product? In this case, there was no question that Fighter’s History looked and felt pretty damned much exactly the same as SFII – but only in the sense that, to a
non-comic book reader, “all these superheroes look the same.” “Look and feel’s not the issue,” he assured me. Capcom was basically claiming that all of the “realistic” 2-D fighters from companies such as Data East and SNK were infringements on its own SFII. I put the word “realistic” in quotes because the Mortal Kombat games, which were almost as popular as the SFII franchise, were considered exempt from copyright infringement by Capcom.
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