Bungie's "First Defence" against "Red War" copyright infringement claim in Destiny 2

On 2 October 2024, author Matthew Martineau issued a claim against Bungie (developer of the popular video FPS looter shooter game, Destiny 2) in the US District Court for the Eastern District of Louisiana claiming copyright infringement in relation to stories he wrote between 2013 and 2014.  Martineau seeks an award of damages (of a sum said not to be currently ascertainable) and injunctive relief.

The essence of Martineau's claim is that the original storyline of Bungie's Destiny 2 “The Red War” campaign was a deliberate and intentional copy of his works, including his story “The First Defense”, as well as the characters and other protectable elements.  

Martineau's works were publicly available on WordPress at the time Bungie was developing Destiny 2 and he claims the studio deliberately copied and appropriated his copyrighted content. For example, in both works “rebels fend off Red Legion invaders on Earth against backdrops of burning settlements, ravaged streets, and utter chaos” and “the tactics of both alien ”Red Legion" invaders… mimic one another, and their goals directly overlap". Martineau points to similarities between his primary antagonist character, “Yinnerah”, and the main villain in Destiny 2's The Red War, “Dominus Ghaul”, including their similar origin stories, goals and characteristics.

The full suite of “infringing and directly corresponding elements” Martineau relies on are extensive and detailed - the lawsuit can be read in full on scribd.com here. However, copyright claims based on similarities in narrative storylines and elements of stories, in whatever jurisdiction they are brought, are typically difficult to prove. 

In the UK, the classic judgment on copyright infringement in novels is Baigent v The Random House Group (2007). Michael Baigent and Richard Leigh claimed that Dan Brown's The Da Vinci Code was a non-textual infringement of the copyright in their non-fiction book, The Holy Blood and The Holy Grail. The Court of Appeal held that the material copied did not amount to a substantial part of the work because only the abstract ideas of the story had been copied, not the particular expression of those ideas, and so there had been no infringement of copyright. However, in this case, Martineau does rely on specific elements of the Destiny 2 Red War story he says have been expressed in a very similar, and in some places identical, way to his own works.

More recently, in Fay Evans v John Lewis (2023), a claim that John Lewis's Christmas advert and illustrated book, “Edgar the Dragon”, infringed copyright in another children's book, “Fred the Fire-Sneezing Dragon”, failed on the basis that the claimant was unable to prove that John Lewis had access to, and therefore actually copied, her work. John Lewis was able to provide extensive evidence from those involved in the creative process for the advert, as well as documents created throughout that process and associated metadata, such that the judge found there was no evidence, and that it was extremely unlikely, that anyone involved had access to Evans' own story. Of course, US law requirements for copyright infringement will likely differ from those under English law, but Martineau may be required to prove, directly or by inference, that Bungie (or its employees/writers) had access to his stories in order to succeed in his claim. If that is the case, the lawsuit currently makes no reference to direct or indirect proof of the likelihood that Bungie had access to Martineau's work, appearing instead to rely on circumstantial evidence based on the timing and pressure Bungie was under prior to the release of Destiny 2, rushed changes to the project, and the similarities between the works. It seems likely that Bungie's primary response to the claim will therefore be that it simply was not aware of Martineau's works and Martineau has failed to prove his case.

In English copyright law, however, failing evidence of any direct access and copying, a Court may be willing to infer such access and copying if the similarities and differences between the works, assessed on a qualitative basis, are such that it is the obvious and most likely conclusion. The defendant must then attempt to rebut that inference with evidence that it created its work independently, such as the persuasive evidence John Lewis was able to adduce for its creation of Edgar the Dragon. There's little doubt that a studio as sophisticated as Bungie will have retained documentation of its creative process and workflows when developing Destiny 2 and will very possibly have the evidence required to prove it created The Red War campaign story independently (that is, if it did). 

So far as we are aware, Bungie has not yet responded to the claim but it will be interesting to see how this case develops.