An unauthorized reskinned game, aka a ”skin-changer” game, refers to a game where its developer uses the core gameplay of an existing game but puts a new coat of graphic designs on it without the authorization of the prior game’s developer. Such unauthorized re-skinning may likely be considered as cloning, and cause troubles for original game developers all over the world. On the one hand, a “skin-changer” game offers the “feel” and game experience very similar to that of the original game thus is more likely to lure the original game’s fans or create confusion; on the other hand, a “skin-changer” game’s developer usually can succeed in escaping from liabilities for copyright infringement because the game rules and mechanics copied from the original game are widely regarded as “ideas” rather than “expressions”, thus are not entitled to copyright protection in most countries.
In China’s online gaming market, “skin-changer” games remain a pain point of international game developers in that foreign copyrighted games must go through more onerous and lengthy approval process prior to their commercial release in China, which gives Chinese copycats a good opportunity to publish “skin-changer” games before the official release of the original titles.
However, a recent first-instance judgment issued by China Shanghai Pudong People’s Court for the very first time specifically addresses the nature of a “skin-change” game and why it constitutes copyright infringement in a lawsuit seeking to protect Overwatch’s copyright. It is reportedly a landmark copyright case in China’s online gaming industry.
The author of this article represented the plaintiffs, Blizzard and its China publishing partner NetEase, in the court proceedings, will briefly review this case and highlight how the game rules and mechanics are protected under China copyright law in this case.
Overwatch is a team-based first-person shooting game developed by Blizzard and published in China by NetEase, playable on PC, Xbox, etc. Hero Gun is a mobile game developed and published by the defendants, a Chinese gaming company named 4399 and its subsidiary. The plaintiffs claim the defendants infringe their copyright in Overwatch by developing, publishing, and promoting Hero Gun which is substantially similar to Overwatch on many key gameplay elements. Based on side-by-side comparison of the two games, the court categorizes and summarizes the two games’ similarities and dissimilarities as follows:
A. Hero Type, Health Points, and Skill Description of the 13 Heroes
a) the corresponding hero type and health points of the 13 heroes in the two games are the same or similar;
b) the hero skill descriptions in two games are quite different, and there are also differences in the skills’ details, but the practical effects of the corresponding skills of the heroes are rather similar;
c) most of hero skills in Overwatch are to be activated by users, while some of the corresponding skills in Hero Gun are by default in the character design due to the limitation of mobile games’ operation; and
d) some hero skills in Hero Gun were adapted from their counterparts in Overwatch, e.g., the combination of two or more skills into one, the split of one skill into two, rearrangement of different heroes' skills.
B. Five Maps
The corresponding maps in the two games are different in overall appearance and artwork, however, they are rather similar in the following elements: the layout of the buildings, locations of entrances and exits to the buildings, locations of the stairs, height ratio of the buildings, buildings’ area ratio from players' view angle, possible routes, locations of health pack and etc.
C. Visual Effects of Skill Activation of 9 Heroes The skill activation visual effects of the corresponding heroes in Overwatch and Hero Gun are rather similar in color and appearance.
D. Game Rules The overall game rules, in particular, game model and winning conditions of the five maps in two games, are similar.
Court’s Analysis and Reasoning
A. Type of Works that Overwatch May Be Categorized
China Copyright Law only recognizes nine statutorily defined types of works eligible for copyright protection. These include literary works, artworks, and cinematographic works and assimilated works expressed by a process analogous to cinematography (collectively “Cinematographic Works”) when it comes to online games. In this case, the court recognizes Overwatch’s sequential images are qualified as a Cinematographic Work which is defined as “a series of related images filmed in a tangible form which can be shown by machines or other equipment as a moving picture with or without accompanying sounds associated with such visual images” under China Copyright Law, for the following reasons:
a) “filmed in a tangible form”, as one of the requirements of a Cinematographic Work, should be interpreted in substance with a focus on the work’s visual expressions rather than how the work was created. Therefore, as long as the sequential images are fixed in certain material forms, such requirement is substantially met. Overwatch as an online game satisfies such criteria given it was designed and transmitted via computers.
b) Whether a specific online game could be recognized as a Cinematographic Work will depend on whether the game is an aggregation of sequential images with originality. Overwatch as a large-scale real-time online shooting game, its maps, appearances of heroes, their prescribed weapons, winning conditions, and user interface settings are all pre-set by the game developer. In terms of the game’s overall visual effect, the maps are delicate and life-like, the heroes’ appearances are vividly depicted, the weapons are complicated in their structures, the heroes’ skills mutually reinforce and neutralize with each other, the logic of the game rules is self-consistent, thus the game contains immense intellectual achievements of the game developer. Besides, the game has been continuously updated and modified since its official launch. Therefore, the game is an intellectual product generated from the game developer’s huge amount of effort and teamwork, which completely satisfies the originality criteria under China Copyright Law. Also, in Overwatch, no matter team fights in the maps, or any hero’s use of its weapons and skills, all are demonstrated in the form of sequential images. Therefore, Overwatch is eligible for and protectable as a Cinematographic Work.
c) In a shooting game, users’ unique operation when playing the game will not compromise the nature of the work. In most cases, winning the game, instead of creating any aesthetic assets, is players’ sole goal to achieve; furthermore, players’ operation of the game cannot create anything beyond the game’s pre-set art library, thus players’ operation makes no contribution to the copyright in the game.
B. Protectable Expressions in Overwatch
In order to distinct the unprotectable ideas from protectable expressions in Overwatch, the court divide Overwatch‘s expressive elements into five layers:
Layer 1: the game’s type or market positioning, i.e. a first-person shooting game.
Layer 2: detailed game rule designs centered around the predetermined game type, including functions such as heroes’ shooting and moving, gameplay models, such as securing control of points or escorting a payload.
Layer 3: the production of the game’s core content, including 3 parts: a) The designs of possible routes in the maps based on the team’s goal in a particular combat; b) The initial planning of the numeral system of the game characters and defining each character’s unique skills and weapon; and c) Overall layout of the user interface.
Layer 4: The consolidation of all game content and resources as well as function debugging. In particular, the compatibility of game rules with the game’s core resources, the self-consistency of all game content, and the smooth and seamless running of the game.
Layer 5: Further and detailed design and production of elements in the game’s art library, including the specific layout of the maps, heroes and their weapons’ appearance, visual effects of heroes’ skills.
The court finds it is undisputable that Layer 1 and Layer 2 shall belong to ideas that do not warrant any copyright protection, and Layer 5 shall be copyrightable, but the two games are quite different as far as content in Layer 5 is concerned. Therefore, the key to this case is to determine whether content in Layer 3&4 constitutes “ideas” or “expressions”. In its analysis, the court articulates the nature of the so-called “skin-changer” game—— to replace all art assets in Layer 5 of the original game but copy the content in Layer 3&4 of the original game so that to easily make the game resources self-consistent without putting substantial effort in the most time-consuming and costly game development stages that produce Layer 3&4 content.
The court also points out that in determining whether content in Layer 3&4 falls within protectable expressions under China Copyright Law, the game features and the players' game experience should be taken into consideration. As for an FPS game, the players’ only goal is to achieve perfect teamwork, precise shooting, and efficient victory. As such, gameplay design elements, including possible routes in the maps, game characters’ skills, locations of health packs and balance of winning conditions, will outweigh aesthetic appearance when players choose which one to play. These more valuable elements exist mostly in Layer 3 and are integrated with the game rules in Layer 4. Therefore, these elements, including the routes in each map, the designs of entrances and exits in each map, the hero types, the combination of heroes’ skills and weapons, etc., in total constitute specific expressions of the game rules. Such external embodiment of Overwatch’s game rules shall be considered as expressions under China Copyright Law.
Given Overwatch in its totality is eligible to be recognized as a Cinematographic Work, and Hero Gun is substantially similar to Overwatch on the above-listed key elements, the defendants are found having infringed the plaintiffs’ copyright. As a result, all the plaintiffs’ claims, i.e., the defendants shall cease copyright infringement, pay damages and reasonable legal costs, and post a statement of apology on relevant media, are all supported by the court.
This case is considered groundbreaking in China’s copyright infringement judicial practice as no precedent case on game copyright ever defined the nature of a “skinchanger” game by disassembling the original game’s external embodiment into five layers in consideration of the users’ experience and the game’s development process. Furthermore, this case gives sufficient and convincing analysis as to why game rule related elements in the original game shall fall within expressions rather than ideas under China Copyright Law. The reasoning and its methodology in this case will undoubtedly shed a great deal of light on copyright infringement cases fighting against “skin-changer” games in the future.