PUBG Corporation, the South Korean studio behind the hit game PlayerUnknown’s BattleGrounds, has recently brought a copyright infringement claim in South Korea against US-based developer, Epic Games – the studio behind the rival game, Fortnite. The injunction application was filed at Seoul’s Central District Court.
In September 2017 Epic Games introduced a battle royale mode to Fortnite and even cited Battlegrounds as an inspiration for the new feature. For those unfamiliar with the genre, a battle royale is a style of competitive play where participants eliminate one another in a bid to be the “last-man-standing”. PUBG were vocal in their concerns that Fortnite was replicating Battlegrounds and claimed the titles were very similar too.
Earlier this year, PUBG also initiated copyright and trade mark infringement proceedings against the Chinese developer of Knives Out and Rules of Survival, NetEase. This claim was filed in California. PUBG identified a significant number of game “elements” which they claim infringe their copyright. This includes everything from the very broad mechanics of a battle royale (e.g. a shrinking gameplay zone) to the very specific “Winner Winner Chicken Dinner!” announcement displayed to the victor.
In December 2017, lead designer of Battlegrounds, Brendan Greene, gave an interview to BBC Radio where he was critical of the IP protection afforded to games. Mr Greene felt that competing games were making a habit of simply lifting aspects from Battlegrounds and concluded that “in movies and music there is IP protection and you can really look after your work. In gaming that doesn't exist yet, and it's something that should be looked into.”
It is understandable that Mr Greene may feel this way given copycats on the market. However, IP protection is available for gaming (in the main, in the form of copyright) just as much as any other creative industry. The key issue to bear in mind is that copyright law seeks to protect the expression of ideas rather than ideas themselves. Bringing a claim for non-literal copying, commonly referred to as “look and feel” infringement, is therefore often problematic. The difficulty for game developers is that with underlying code typically hidden from users, a look and feel type of copying claim based on similarities in the user interface may be the best or only available argument to them. However, the gaming industry is at no greater disadvantage with such a claim than other creative sectors. By way of example, when considering a non-literal copying claim in relation to a novel in Baigent v Random House (the Da Vinci Code Case), the Court of Appeal held that the material alleged to be copied fell on the wrong side of the line between ideas and the expression of ideas and there was therefore no infringement.
The idea/expression dichotomy in copyright law is of particular relevance to computer programs. In the 2001 case of Designer Guild v Russell Williams Lord Hoffman, in the House of Lords, commented that UK case law concerning the distinction between ideas and the expression of ideas supported two distinct propositions. First – a work may express ideas which are themselves not protected because they are not connected with the literary, dramatic, musical or artistic nature of the work. For example, a manual describing an invention does not grant the author protection for the invention itself (for which a patent would be required). Secord – certain ideas expressed by a copyright work may not be protected because, although they are ideas of a literary, dramatic or artistic nature, they are not original, or are so commonplace as not to form a substantial part of the work. For example, a murder mystery screenplay would not grant the author copyright in the concept of murder mysteries. Lord Hoffman maintained that “the more abstract and simple the copied idea, the less likely it is to constitute a substantial part”.
US and UK copyright law share common principles, indeed they both derive from the Statute of Anne. As such, guidance on the UK approach can be found in US case law. In Nichols v Universal Pictures Co US Judge Learned Hand said, in relation to literary works, that it is essential that copyright law protects more than that the literal text “else plagiarists would escape by immaterial variations”. In considering a hypothetical play, Judge Hand commented that a plagiarist may appropriate part of the dialogue and the question for the Court is whether the part taken constitutes a “substantial part”. It was noted that the position is more troublesome when a plagiarist does not take blocks of texts or particular scenes but instead uses an abstract of the whole. The Court is faced with the unenviable task of determining at which point, along a spectrum of abstraction, the author is no longer protected else they would be granted a monopoly on an idea. Judge Hand concluded that “nobody has ever been able to fix the boundary, and nobody ever can” – it will depend on the facts at hand.
In the UK there have been very few cases examining look and feel copying of software. Of the cases considered, the UK courts have typically ruled against the copyright holder (Nova v Mazooma for example). However, every case is judged on its own facts and merits, and therefore the industry should be wary of drawing conclusions from such a small data set. In fact, in 2012, a non-literal copying case involving software was successful in the US (the Tetris case).
As the popularity of these titles and games continues to grow, the studios behind them may have an increasing financial incentive to assert their right. Indeed in March 2018, gaming industry market intelligence firm, SuperData, estimated that Battlegrounds and Fortnite had generated combined total revenue of US$229m. These particular cases might well lead to some interesting additional guidance for developers who are considering pursuing claims against imitators, both in the UK and abroad.
As a general point, it is often preferable for both sides of a dispute of this nature to seek to reach a commercial settlement rather than fight the issue in multiple jurisdictions (some of which may result in conflicting outcomes). This is especially true where both sides seek a quick, creative and certain resolution.