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My Three Trials
Three Experiences as an Expert Witness
in the Electronic Games Industry


by Bill "The Game Doctor" Kunkel

Trial 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.

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.

The 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.

The 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.

I 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.

There 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 to SNK.

But 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 up.

I 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.

Another 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.

I 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.

I 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.

We speculated on whether he was getting worked over as we ate lunch during the break

In 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.

His 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.

I 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.

Fenwick 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.

Somewhere, 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.

"You 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?"

Of 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.

So what were a few thousand bucks to teach Bill Kunkel to become a top notch SFII player?

Their 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."

Of 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.

Unfortunately, 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.

I 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.

They 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."

CODA: 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.

I 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.

The 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!").

If 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."


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