3 (1993 - 1994)
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.
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.
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.
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.
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."
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.
reason given by Capcom for Midway's clearance was
that the fighters in the MK games were "fantasy
characters," unlike the real world fighters in
its franchise. Of course, hard as I thought about
it, I could never recall seeing a real world martial
artist levitate into the air, turn themselves upside
down, then whirl their legs like helicopter blades
in order to rocket across the fighting surface to
deliver a knockout blow to an opponent.
fact was that most of the Street Fighter characters
were about as realistic as the fighters in a thousand
Hong Kong martial arts movies. The so-called "chop
socky" film explosion in the '70s following the
international success of Bruce Lee was hardly producing
tutorials in the execution of legitimate karate, kung
fu, judo, etc. Like contemporary neo-classic martial
arts films such as House of Flying Daggers and Crouching
Tiger, Hidden Dragon, these early films were more
fairy tales than gritty unarmed combat films such
as the later "Bloodsport" series, which
didn't come along until 1988.
have always believed that the real reason Capcom gave
Mortal Kombat a bye, however, was its unwillingness
to face the legal guns which Midway (owners of the
original arcade license) and Acclaim (holders of the
home gaming rights) would surely bring to bear in
such a case.
were, of course, other players in the woodpile as
well. Several smaller companies in the coin-op business
were also making 2-D fighting games like Data East
and felt either immediately or imminently threatened
by Capcom's attempt to pre-empt the field. Then there
was the rumored personal animosity which, at the time,
often played a large part in dealings among Japanese
companies. And, as it happened, Capcom's Japanese
executives were said to be furious over the fact that
the Street Fighter development team had recently defected
the bottom line was the same as it had been in the
Magnavox vs. Atari case - Capcom was trying to lock
up a genre. I may be a fool, but I'm a stubborn fool,
and the issue of genre plundering always gets my hackles
signed on and immediately went to work, researching
the various legal points that would be used in Data
East's defense. First, we attacked the idea that the
characters in the Street Fighter pantheon were original
creations which should belong solely to Capcom. A
mature Internet would have been a big help, but I
did have a rather large library of anime and manga,
Japanese animated films and comic books. One by one,
the characters that populated SFII were revealed as
types rather than archetypes. I recommended the lawyers
read the book Manga! Manga! The World of Japanese
Comics by Frederik L. Schodt, then the leading English
language work on the subject (it also contained a
drawing of an old manga character who looked uncannily
like Bison). The lawyers liked the book enough to
hire Schodt himself as an expert witness. Capcom's
lawyers maintained that specific characters in Fighter's
History were doppelgangers for Street Fighter II combatants,
but we were able to dig up a considerable body of
evidence to prove that the characters Capcom was claiming
as its own creations were in fact icons, plucked from
the grab bag of Japanese culture and literature.
issue involved the use of play mechanics. Capcom maintained
that certain moves in Fighter's History duplicated
specific fight sequences, known as "combos,"
in SFII. Now this was an important issue since it
implied that Data East was drawing unfair advantage
in terms of player familiarity on the back of their
game. This was an especially tough nut to crack, in
that it was pretty obvious that Data East had probably
done just that.
argued, however, that there was a certain ergonomic
logic to these moves that placed them beyond the realm
of individual ownership. If, for example, you wish
your fighter (who is on the left side of the screen)
to execute a forward flip, it only made sense that
the button mashing and controller shifting duplicated
the motion desired of the surrogate fighter. A forward
flip from the left side of the screen should obviously
be executed by hitting the directional controller
in a rapid left-up-right fashion. A right-up-left
sequence would be anti-intuitive and unplayable. The
fact that other companies' games were duplicating
SFII's command system mostly demonstrated that it
was a sensible system - that and the fact that there
were a lot fewer buttons on coin-ops and home games
in the early-'90s, thereby limiting the possible number
of combination moves.
think I was an important witness in the Pac-Man trial
and I probably earned Galoob a few bucks in that litigation.
But this trial was my shining hour. I got to participate
in numerous skull sessions with the excellent lawyers
at Fenwick & West, breaking down the arguments
of the Capcom lawyers and offering insights into the
game business that very few people could have provided.
I was also solid on the stand through several rounds
of cross-examination, unlike the poor kid who wrote
the How-to-Play strategy guide for SFII. He was Capcom's
big expert witness and fatherly Bill Fenwick gutted
him like a fish. It was so bad that the Capcom legal
posse requested a recess and retreated into a room
with the hapless witness in tow.
speculated on whether he was getting worked over as
we ate lunch during the break
retrospect, however, all my articulate testimony and
straight edge logic almost got shut down before I
could deliver it. Apparently the judge had seen the
games and, being an elderly gentleman, must have thought
the case was a slam dunk. Indeed, the games must have
appeared identical to someone not versed in videogames
- they had, after all, appeared almost identical to
me at first glance.
Honor walked into the courtroom with a look on his
face that said: "This one is over." He announced
he was prepared to rule immediately and sweat broke
out on the faces of the Fenwick & West lawyers.
"Mr. Kunkel has been brought here at great expense,"
they pleaded, putting me over as the last word in
the games business, selling me hard. And I didn't
blame them; I was with KKW when this case came along
and they were paying us massive bucks on an hourly
basis for research, analysis and testimony.
wondered if I was going home early, but the judge
looked irritated then gave in, allowing that they
would hear my testimony. My first appearance was good
enough that the judge, to his credit, reconsidered
his position. He noted that there were obviously more
facets to this case than he had initially realized
and so we all sat down to play for several days of
testimony and deliberation.
and West seemed very well pleased with my performance,
but there was one thing about me that scared the hell
out of them - I absolutely sucked at 2-D fighting
games. To be honest, I pretty much hated them and
this period of dominance by the 2-D fighters was tough
for me to deal with. The idea that I would practice
these elaborate moves for hours was about as exciting
to me as watching grass grow.
in their heart of hearts, I know that my lawyers had
a terrible fear that, unable to dent my rep as an
Expert, the Capcom lawyers would try a desperate gambit.
are such an
'expert' at these games, Mr. Kunkel,"
they might say, "why don't you come over here
and show us how well you play the game itself, hmmmm?"
course, Fenwick & West wasn't spending its own
money - the bucks came from Data East, which was not
only fighting for its life, but for the lives of several
other companies. Millions were spent solely to produce
elaborate split screen animations comparing and contrasting
the "original" characters from SFII with
the supposed copies in Fighter's History. Every day
the trial continued, the billings continued to swell.
what were a few thousand bucks to teach Bill Kunkel
to become a top notch SFII player?
solution: bring in a SFII gunslinger to tutor me.
He spent two days, somewhere in the neighborhood of
a $5,000 billing, teaching me to play the game at
an acceptable level. I was better than he expected,
but my lack of combo knowledge appalled my sensei.
So hour after hour, a mental meter ticking away in
my head, I learned how to execute every character's
special moves. By the end of this grueling training
period, I was good enough that my mentor described
me as "not awful anymore."
course, I was never called upon to go anywhere near
either of the games in court. Everything went like
a dream and, in the end, Capcom's case was kicked
out of court, based on the arguments we had developed.
It felt good-and prosperous.
I guess Fenwick & West may have been a little
too liberal in their willingness to spend Data East's
money as that venerable game company basically went
out of business shortly thereafter, despite the win.
think the most ironic thing about the whole deal was
the fact that Data East had actually invented the
martial arts genre with its '80s arcade game, Karate
Champ. When another company (Epyx) copied Karate Champ
down to the last pixel, Data East sued them.
lost when the Ninth Circuit Court ruled that all karate
games would be more or less the same, just as all
baseball, football, basketball and other sports games
would inevitably share common characteristics. In
fact, it was that very ruling that led Data East to
believe it would have no trouble producing a SFII
type game, since all 2-D fighting games would be "more
or less the same."
On the way home, my flight was delayed and I decided
to kill some time in the airport arcade. Bursting
with about 8 hours worth of personal tutelage at the
hands of an absolute friggin' street fighting beast,
I felt like Luke Skywalker after Yoda taught him to
levitate the spaceship out of that swamp.
walked up to the latest SFII incarnation (probably
Championship Edition) and plunked down my token on
the control board since a young kid was already playing.
He offered to go two-player and, of course, he cleaned
my expensively-trained clock.
worst thing was the way he would giggle every time
he landed a blow, the little snot. Naturally, he was
on my flight and the whole ride back to Vegas from
California he would nudge his parents, point at me
and crow ("THAT'S the guy I beat at Street Fighter
2, mom! Dad! Man, I wiped him OUT!").
you liked this article and the other two trial articles
by Bill Kunkel, then you need to know that these are
just a small portion of a chapter that will be collected
in a series of essays in book form to soon be published
by Rolenta Press entitled "Confessions of
the Game Doctor."
© 2005 by Bill Kunkel