5th December 2018

Written by Sam Goodman and Fergus Carson-Williams

Take two of the most popular videogames, toss in a copyright claim, and a legal battle royale ensues, right? Apparently not. Player Unknown quietly dropped their claim against Epic Games in June this year, leading to much speculation as to why. But while conjecture rages on, a recurring legal question arises: can you claim ownership of a videogame’s idea, concept or genre?

Player Unknown’s Battlegrounds (PUBG) seemed to spring out of nowhere when it launched in March 2017, grabbing the gaming world by its joystick. Inspired by the 2001 cult film Battle Royale, the game sees up to 100 players parachuted onto an island, where they scramble for weapons and fight tooth and nail until only one is left alive (and famously declared the “Winner Winner Chicken Dinner”). The game’s popularity has reportedly earned its creators over $1 billion, and set a number of world records for its unprecedented popularity.

Cue Fortnite, the brainchild of Epic Games (the developers behind the Unreal game engine upon which PUBG was based). Launched in July 2017, Epic added a ‘Battle Royale’ mode to Fornite shortly afterwards. Though the game contains a distinctive, cartoon-like aesthetic and other distinguishing gameplay features, the numerous conceptual and gameplay similarities between Fortnite and PUBG led many to accuse Epic of copying Player Unknown’s earlier work.  By January 2018, Player Unknown had applied for an injunction on copyright grounds to prevent the distribution of Fortnite.

By the following month, Fortnite had replaced PUBG as the world record holder for the most concurrent online users. Faced with such sharp competition, it is perhaps unsurprising that Player Unknown attempted to assert its dominion over the “last man standing” genre in the courts. The claim was brought (and ultimately dropped) in South Korea – but, from an English law perspective, would it have stood much of a chance? The simple answer, in relation to claiming copyright in a videogame genre, is probably not.

Unlike more robust rights conferred by trademarks and patents, copyright does not grant the holder complete ownership over the work as a whole (sometimes called “monopoly control”). Its purpose is to protect the form of expression of ideas, not the ideas themselves. The reason for this is twofold: first, ideas tend to be too vague and nebulous to be protected unless and until expressed in some perceptible form; and second, copyright law has evolved to balance the rights of creators with other overriding interests, such as enabling consumer choice and allowing for works to be parodied, critiqued, used in academic research, or fairly used as inspiration for new original works. Indeed, if copyright protected underlying ideas, then it is likely that PUBG itself would be an infringing work (having been inspired by an idea in a film, in turn inspired by an idea in a book).

Back in 2007 the English courts were invited to consider this principle in the Court of Appeal case of Nova Productions Ltd v Mazooma Games Ltd. While the games in question (pool simulators) were a far cry from the likes of PUBG and Fortnite, the legal question was similar: did Mazooma’s game (which had various similarities to Nova’s game in terms of visual appearance and gameplay) infringe Nova’s earlier work? The court found that there was no infringement since the similarities were “obvious” or “common” ideas in any pool simulator game, warning that to say otherwise would be to incorrectly claim that copyright covers “works merely inspired by others [or] ideas themselves”.

Thus, if elements of a game (its concept, design, gameplay, and mechanics, for example) necessarily flow from the core idea of the game (i.e. its genre), then it will be difficult to claim copyright in them. Otherwise, copyright would grant first movers a monopoly over an entire category of game to the detriment of innovation, competition and consumer choice. Certainly, the ‘Battle Royale’ genre, which is now becoming ubiquitous (Activision, for instance, has recently implemented its own battle royale mode, Blackout, in its latest edition of Call of Duty) would be quite uninspiring if it featured only one title.

The good news for developers and publishers, however, is that while it may be difficult to claim copyright in the overall genre or appearance of a game, it is easier to establish that copyright subsists in various original works comprising the game. Scripts and other literary works, artistic works, sound recordings, audio-visual materials, and the source code itself, for example, all attract copyright protection themselves. If a substantial part of any such work is copied (even by games of an entirely different genre or to non-game works like movies), the game owner would have a claim for copyright infringement.

Further, copyright can be combined with other forms of protection in order to develop a more complete IP strategy. Words, phrases, shapes, sounds, logos, colours and movements may be able to be registered as trade marks, for example, which are easier to enforce and require no analysis of whether the infringing material is an expression of ideas. Even unregistered elements of a game might afford the owner a degree of protection in the form of a “passing off” claim if it can be shown that they have garnered goodwill and distinctiveness. Registered designs, meanwhile, can be used to protect key game imagery including iconic characters, logos and other distinct in-game assets.

So, while copyright protection has its limits insofar as protecting a game type on a holistic basis is concerned, it is possible for developers to battle it out with cloners if they are pragmatic in their approach. The tale is a clear lesson to developers and publishers that, in order to stand the best chance in an IP battle royale, they should implement a pre-planned IP strategy and arm themselves with the full arsenal of protective measures available.