When you’re collecting retro games, you notice some odd things. For example, how the cartridges look. The NES and SNES have a uniform look to them. While there are some odd-looking NES games, mostly from unlicensed developers, the SNES only has one that I’m aware of.
The Sega Genesis/Mega Drive is entirely different. Sega and Electronic Arts had their own manufacturing, which created two different-looking but officially licensed games. There is a story behind that, but I want to focus on a different company.
Accolade also manufactured their own cartridges for the Sega Genesis/Mega Drive, but they didn’t have a license. The reason why is similar to EA’s story, but Accolade didn’t cut a deal with Sega. They went out on their own because they had successfully reverse-engineered the Genesis and could do whatever they wanted.
It is an interesting story that should’ve been settled almost a decade earlier. It touches on Sega, EA, Atari, Activision, and, of course, Accolade. This is about the time Sega sued Accolade.
A Brief History of Sega, Electronic Arts, and Accolade
We’re going to move through this quickly, but I wanted to hit some of the crucial points. To tell the story of Sega and Accolade, we need to explain some things about Sega and its relationship with EA. Let’s get into it!
In the late 1980s, Sega was taking another shot at the North American Market. Previously, they had a manufacturing presence through their acquisition of Gremlin, but that was sold off when the North American market crashed. Later, they would work with Tonka to release the Master System.
In 1989, they were going to try things again with the Sega Genesis. They used their catalog of arcade hits as a starting point for games on the new system. However, they knew they needed third-party developers to support the console.
However, Nintendo had locked up many developers with exclusivity deals. To circumvent this, Sega would license arcade games from developers like Capcom and port those games. They also leaned on licensing deals with sports stars to gain attention. This is what leads us to the EA part of our story.
Both EA and Accolade were primarily publishing games on PCs. Both wanted to get their games on the home consoles. Both Companies reverse-engineered the Sega Genesis because they didn’t want to pay licensing fees for third-party developers.
The difference is how Sega approached them. EA cut a deal to bring over more games than normal and do their own manufacturing. Accolade would also cut a deal, but it isn’t as well-known.
Accolade was started in 1984 by former Atari employees and Activision co-founders. It is fascinating how many of these software companies can trace their roots back to Atari. They made several well-remembered series like:
- Star Control
- Bubsy
- Deadlock
- Test Drive
- Hardball
- Jack Nicklaus golf games
Accolade was focused on making games for computers like the Commodore 64, a market Activision wasn’t in at the time. They were a developer/publisher at the time. They would make their own games and publish games for smaller developers, similar to what other companies like Sierra Online would do.
They initially found success with sports games. In the late 1980s, they branched out to strategy games. In the early 1990s, Accolade wanted to make games for the revived home console market. To circumvent the console’s lock-out measures, they reverse-engineered the code for the Sega Genesis.
This led to the lawsuit I’ll be discussing in a second. However, we have one last detour to talk about. It has to do with a similar situation that involves Atari and Activision.
Atari had sued Activision for breaching a non-disclosure agreement. I wanted to discuss this lawsuit and how it related to Sega v Accolade. However, I’ve had trouble finding the primary sources.
I’ll mention what happened briefly and add more when I find it. For now, this is what I know about the situation.
Four disgruntled developers left Atari after asking for fair compensation for the games they were programming. The company was making millions of dollars from these games. In my opinion, Atari declined to pay them and insulted them.
Activision became the first third-party developer for home consoles. Their games were more successful than those of Atari. Because of the developer’s knowledge of the Atari 2600, they were able to make better games than the current crop of Atari’s in-house development team.
Of all the games to start a lawsuit between two companies, ours begins with Ishido: Way of the Stones. This is a game I would probably never talk about. The fact that it was a part of this lawsuit is one of those odd stories of the video game industry.
Sega wanted to be the exclusive publisher of Accolades games, preventing them from releasing games on other systems. Accolade chose to reverse-engineer the code for the Sega Genesis by using several games released for the console. They succeeded in 1990 and released Isido: Way of the Stones. However, there was a new problem.
The problem was with Sega’s security software. In 1990, Sega created the Trademark Security System (TMSS), which displayed the message “Produced by on under license from Sega Enterprises LTD,” it forced the Sega Trademark to be displayed when the game powered up.
Accolade went back to the drawing board. They reverse-engineered the code again, discovered the TMSS code, and added it to three of their games. Later, in 1991, Sega filed a lawsuit against Accolade for copyright infringement.
Sega won an injunction against Accolade in April 1992, initially preventing them from selling their games. This required Accolade to stop selling its Genesis games and issue a recall. However, Accolade would appeal this decision.
Later, in April 1992, Accolade filed their appeal, but the injunction remained in effect until August of that year. The injunction was reversed. Accolade had argued that they had reverse-engineered the code in a case of fair use. The court reviewed four criteria for fair use to make the decision:
- The nature of the copyrighted work
- Amount of the copyrighted work used
- Purpose of the use
- Effects of use on the market
Sega tried to use a “sweat of the brow” argument against Accolade’s fair use claims. This was rejected based on previous legal precedent. The court also ruled that “where disassembly is the only way to gain access to the ideas and functional elements,” like in a software program or computer game, “disassembly is a fair use of the copyrighted work.”
Unfortunately, this didn’t end the case. The injunction against Accolade selling their games was still in effect because Sega had petitioned the court to rehear the case. Things would have to be settled out of court.
Fallout
The case was settled out of court. Accolade would become a Sega licensee, but the lawsuit’s financial ramifications would be felt for the rest of Accolade’s existence. While they didn’t lose the case, the initial injunction hurt them financially.
In January 1993, the court lifted the injunction against Accolade, allowing them to sell games again. However, Accolade was estimated to have lost between 15 million and 25 million dollars.
Accolade and Sega settled the case in April 1993. The terms of the settlement weren’t released to the public. If they got some special agreement from Sega, as EA did, it wasn’t made public, and it seems that no one has dug into it.
Accolade continued to release games until it was bought by Infogrames in 1999. They had put a lot of effort into Deadlock and Star Control 3 but couldn’t keep the company afloat. Accolade, as a company, was gone.
Infogrames bought Atari in 2001 and later went bankrupt. In 2013, Tommo acquired the Accolade trademark. In 2017, Billionsoft bought Accolade and its assets, along with Black Forest Games. They released new Bubsy games. In 2023, Atari acquired the rights to Accolade and its properties. I think I got all of that in straight.
Sega would be fine. When they left the home console market, they continued making and publishing games. Over the years, they have acquired a long list of properties you might not expect. They and their subsidiaries have released some fantastic games!
The case did establish some precedents regarding what can and cannot be protected by copyright law. Legal protections only extend to holding a patent or trade secrets.
Final Thoughts
As a kid, I always thought the EA cartridges had a memory expansion or something like that in them. That was my reason for why the cartridges looked different. I probably would’ve thought something similar if I had seen the Accolade cartridges.
After looking into them, I find it extremely interesting. The story of third-party developers in the Sega Genesis and how the unlicensed games came to be is amazing. It seemed like Sega had a problem similar to Atari’s. If you had the money and the time, you could reverse-engineer the console and make games for it.
Seeing how companies in the US lead back to Atari is becoming a bit of a theme with these little projects. It’s like playing a nerdy version of Six Degrees of Kevin Bacon. How does a company have origins in Atari?
I wasn’t expecting Accolade to use fair use, especially given how the term is used concerning YouTube videos. I guess that has colored my view of fair use. It could apply to many things, but I keep thinking of it in terms of YouTube.
I’m unsure what the next research topic I’ll be researching is. I want to discuss Activision in more detail, but I’m uncertain where to start. There are also more companies to look into. If you have any suggestions, let me know.
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