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NetEase Sued by PUBG Creator (A Legal Analysis) - Let the IP Battle Royale Commence

by Pete Lewin on 04/12/18 09:34:00 am   Featured Blogs

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The following blog post, unless otherwise noted, was written by a member of Gamasutra’s community.
The thoughts and opinions expressed are those of the writer and not Gamasutra or its parent company.

 

The following is a repost of a piece over on my own blog at www.legalgamer.weebly.com.

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Bluehole’s success with ‘PlayerUnknown’s Battlegrounds’ (PUBG) has been meteoric. But it is no secret that the company has voiced frustration in the past at the boom of new games popping up in the ‘Battle Royale’ genre. So when it came to light last week that PUBG Corp (one of Bluehole’s subsidiaries) is actually suing one of its largest mobile competitors, while still a surprise, this also felt somewhat of an inevitability.  

Who is Suing Who
PUBG Corp’s complaint (found in full here) is targeted at NetEase, one of China’s largest internet technology companies and a behemoth in the Chinese games space. The complaint focuses on two of NetEase’s new mobile games titled ‘Rules of Survival’ and ‘Knives Out’, both of which are set in the popular ‘Battle Royale’ genre. 

On What Basis
The vast majority of PUBG Corp’s case is presented on copyright infringement grounds, but there are also allegations of trade dress infringement (i.e. copying another product’s general appearance and characteristics which causes public confusion as to source) and unfair competition (i.e. unfair acts that harm another company’s business interests). For brevity this current article focuses on things from a copyright perspective only, but the other grounds are certainly interesting in their own right. 

Copyright Arguments
Approximately 30 pages of the complaint are dedicated to describing various elements of PUBG which PUBG Corp claims are protected as copyrightable works, including:

  1. the pre-game island / waiting area;
  2. the early game flyover / air jump;
  3. health and speed booster items;
  4. the means of acquiring of loot;
  5. weapon mods, attachments, gear (including the “Frying Pan”), clothing, armour and vehicles;
  6. house and environment designs;
  7. sounds and noises;
  8. air Drops and bombardment zones (i.e. red zone);
  9. the shrinking gameplay zone (i.e. blue circle); and
  10. “Winner Winner Chicken Dinner”

The remaining 100 or so pages are tasked with detailing (with pictures) how those elements are allegedly copied and infringed in each of NetEase’s own titles. 

What is Protectable by Copyright?
Before deciding whether or not copyright infringement has occurred, PUBG Corp would be tasked with convincing a court that each of the elements above was capable of attracting copyright protection in the first place. So, what exactly can be protected by copyright?

In short, copyright generally protects the expression of ideas, but not the underlying ideas themselves. For example, Nintendo owns Mario (the expression), but not the concept of a plumber collecting gold coins and rescuing princesses (the idea). As such, PUBG Corp will undoubtedly own PUBG’s unique code, art assets, audio files etc as these represent its particular expression of its game design choices.

But what about game mechanics and a game’s general look and feel? Under European law it is unlikely that these elements are protectable by copyright as these are largely considered to be unprotectable ideas. In the US however the position is arguably less clear thanks to a decision known as the ‘Tetris’ case (Tetris Holdings, LLC v. Xio Interative, Inc.), which for the first time saw a court effectively hold that in certain circumstances, general game rules and mechanics could (in a round-about way) be protectable.

Since PUBG Corp is not alleging that NetEase literally copied any of PUBG’s assets (i.e. directly lifted PUBG’s sound effects, character models, code etc) the outcome of this case will largely turn on whether or not PUBG is able to successfully argue that its particular mechanics, design choices and general look and feel are worthy of protection. We can see the early groundwork of this throughout PUBG Corp’s complaint where, for example, PUBG Corp claims not only ownership of its visual expression of the plane jump at the start of each match but also seemingly the concept of the jump itself (“The Air Jump is a copyrightable audio-visual work, individually and/or in combination with other elements of BATTLEGROUNDS”). 

Infringement
If this case were to have been brought in Europe it would likely struggle given the lack of any literal asset / code copying (see the case of Nova v Mazooma). However, the Tetris case is precedent for a US court to look beyond literal copying and to consider the similarities between the original and allegedly infringing games as a whole, including their rulesets, mechanics and overall look and feel. 

The Tetris case involved a company which for all intents and purposes had recreated Tetris in every material respect without using any of the original Tetrisassets (e.g. the exact same sized play grid, the same shaped pieces and same general ruleset). In effect, it was ruled that the clone was so similar to Tetris in all respects that it was tantamount to copying and therefore constituted infringement, even though there was no literal copying.

So just how similar are NetEase’s games to PUBG? According to PUBG Corp’s complaint, pretty similar, with roughly 100 pages with pictures detailing how. There are some obvious similarities in terms of general gameplay, game modes, care packages, play environments etc, but most of these are fairly generic elements of video games and it would be tricky for PUBG Corp to prove that these alone evidenced copying. What is more interesting though are the subtler elements of NetEase’s games which are arguably more clearly inspired by those of its competitor (e.g. the fact that in both games an energy drink is used to boost both speed and health recovery, that guns apparently do roughly the same damage, that there are exactly three tiers of armour etc). 

It is important to remember though that PUBG Corp’s complaint naturally only puts forward one side of the story and does not highlight the differences between the games, both aesthetically (e.g. outfits and environments) and mechanically (e.g. UI).

So the Tetris case is helpful precedent in that it puts on the table the possibility of considering wider game similarities, but its limitations must be recognised. One of which is that Tetris is a considerably simpler game with less complicated rulesets and mechanics than those at issue now. How a court would actually compare and weigh up games of this scale would be incredibly interesting. In other words, PUBG Corp has a starting point in the US for staking its claims, but it will not be an open and shut case by any means. 

Closing Thoughts
Despite the prolific nature of clones throughout the games industry, lawsuits on the topic are still relatively few and far between and are practically unheard of outside the US. Also remember that copyright infringement is only one of the four grounds on which PUBG Corp’s claim rests, each of which will deserve attention in its own right. Of particular interest will be those relating to the inclusion of the legendary “Frying Pan” in NetEase’s games and reference to “Winner Winner Chicken Dinner” in NetEase’s marketing materials, given that both of these elements are so closely tied with the PUBG phenomenon.

What makes this case particularly interesting is that the games at issue are all currently big money makers and the respective studios have the resources to fight this battle out if they choose to. Meaning we might actually get some meaningful and detailed precedent. Or maybe it will settle outside of court (as most cases do) with NetEase making just enough changes to distinguish the games. Rightly or wrongly, by taking on a name like NetEase, PUBG Corp is sending a strong message to studios out there looking to capitalise on PUBG’s success. Let the IP Battle Royale commence.


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