Martineau v. Bungie is a case from the Eastern District of Louisiana that pits a blogging David against a gaming Goliath that allegedly had to create a plot for one of its video games in a hurry. Matthew Kelsey Martineau filed a complaint against Bungie Inc. for infringement within the extremely popular, multiplayer game Destiny 2. Martineau was the author of a series of short writings that were publicly available on a WordPress blog. Not surprisingly, Bungie brought a motion to dismiss.
The allegations of substantial similarity begin with the name “the Red Legion,” which served as the main nemesis/antagonist in both works. Both versions of the Red Legion use flamethrowers as their signature weapon…and Martineau goes on to allege many more similarities concerning broad themes as well as unique characters, technology, and weapons.
It all came down to the means of proposing evidence. Bungie had proposed that the court need only make a side-by-side comparison of Martineau’s short writings and Destiny 2, in addition to reviewing a declaration of a Bungie employee. However, the court found it was simply impossible to perform a side-by-side comparison of the two works. One of the cases that Bungie cited to support a comparison concerned two books, but here the court was being asked to look at scenes from a video game and compare it to the plaintiff’s short writings. Side-by-side comparison, the court further stated, was rarely used at the pleading stage.
The court denied Bungie’s motion to dismiss and rendered moot a motion brought by the plaintiff that sought to exclude the same evidence the court had thrown out.
From my point of view, a real Achilles heel in the plaintiff’s argument will be how to demonstrate that anyone developing Destiny 2 had meaningful access to Martineau’s work, even if it was available on a public WordPress site. Being on the web doesn’t mean the defendant accessed it. There are millions of books on library shelves, as well. That being said, the substantial similarity goes a long way towards bridging the gap between having actual access and merely the opportunity to have access. It may turn out that using the same “Red Legion” to describe the enemy is enough to demonstrate the plot of this multimillion dollar game is based on the humble writings of the plaintiff in this case.
