copycat games – Patent Arcade

Oct

2018

Tetris Holding, LLC v. Xio Interactive, Inc.

Tetris Holding, LLC v. Xio Interactive, Inc.
863 F.Supp.2d 394
United States District Court for the District of New Jersey
May 30, 2012

We were recently talking among ourselves about copyright protection for expressive choices in implementing functional rules of a game, and Tetris v. Xio immediately came to mind. Much to our own surprise we hadn’t written it up yet. So today we write about the Tetris Holding v. Xio Interactive case that captured the industry’s attention in 2012 by providing expansive protection for Tetris – a holding that some have found controversial.

The Copyright Act protects the expression of an idea, not the idea itself or its functionality. In the United States, patent law governs functionality, whereas copyright protects original creative expression. This underlying principal allows for clones of a popular video game to exist, so long as the clone only uses the ideas or functional features. Functional aspects of a game could be the rules or user interface. There are certain games where the rules are so intrinsically tied to the expression of the game that it becomes difficult to separate, which was the exact scenario that the court faced in Tetris Holding, LLC v. Xio Interactive, Inc.

Tetris is one of the most popular video games of all time, and as a result, there are many clones of Tetris available. Tetris Holding, LLC, the company that owns the Tetris rights, has a history of issuing takedown notices to copy-cat games. One such company to receive a takedown notice was Xio Interactive. Desiree Golden formed Xio Interactive with the intent to design a game for the iPhone. Ms. Golden admitted she intended to create a game which replicates Tetris’s gameplay but claimed to have only copied non-protected functionality. Tetris Holding disagreed with Xio’s assertion and instigated litigation in December 2009.

Xio argued it only copied the rules and game mechanics of Tetris, which would be functional features and therefore could not be protected by copyright. The district court, however, held that expressive elements incorporated into the functional features could be protected. According to the court, just because game mechanics and rules are not entitled to protection, “does not mean . . . that any and all expression related to a game rule or game function is unprotectable.” 863 F.Supp.2d at 404-405. Even though the game mechanics and expression might appear closely tied, the court felt the defendant had other options to express the same mechanics, therefore the merger doctrine did not apply. The merger doctrine states if there is a single or limited number of ways to express an idea, then no copyright protection will be given to any of those ways. Because the court found there was protectable expression that did not merge with the idea, it ruled in Tetris Holding’s favor due to the fact that both games were identical.

Tetris Holding also sued Xio under a theory of trade dress infringement. On the trade dress claim, the district court again ruled in Tetris Holding’s favor, finding there was a likelihood of confusion due to the similarities of the two games.

This case has been controversial because many commenters believe the decision expands the scope of copyright protection to protect functional aspects of a game. For many people, a video game’s mechanics and rules are purely functional, so those elements should not be protected by copyright. Video games walk a tight line between functionality and expression due to the interactive nature of the medium, so it is not always clear where one begins and the other ends. The distinction between functionality and expression in video games is thus an ongoing issue of debate.

For example, PUBG Corp., the developer of Playerunknown’s Battlegrounds, is currently suing several copycat games in a case that seems somewhat similar to Tetris Holding v. Xio Interactive. For more in-depth coverage, click here. Many of the elements PUBG Corp. claims the copycats infringe might be of a functional nature, or ideas not subject to copyright protection, when considered in isolation, but PUBG argues that in combination they are deserving of copyright protection. It will be interesting to see if the court in the PUBG Corp. cases follows a similar analysis as Tetris Holding v. Xio Interactive.

This is an issue we’re keeping an eye on. Stay tuned…

Jul

2018

Bethesda sues Warner Bros. over Westworld Mobile Game

Bethesda Softworks LLC v. Behaviour Interactive, Inc., et al
United States District Court for the District of Maryland
Docket No. 8:18-cv-01846-RWT, filed June 21, 2018

On June 21, 2018, Bethesda Softworks filed a complaint in the District of Maryland against Behaviour Interactive and Warner Bros. alleging their Westworld mobile game infringes Bethesda’s copyrights in Fallout Shelter. According to the Complaint, Behaviour used Bethesda’s copyrighted source code from Fallout Shelter to develop a Westworld mobile game for Warner Bros., which, they allege, not so coincidentally ended up being suspiciously similar to Fallout Shelter. The Complaint also alleges that Behaviour breached a non-disclosure agreement and misappropriated trade secrets in doing so.

According to the Complaint, in 2014 Bethesda hired Behaviour to help develop Fallout Shelter. The Complaint states that Behviour assigned all rights in Fallout Shelter to Bethesda. Then in 2018, Warner Bros. hired Behaviour to develop a game similar to Fallout Shelter but based on Westworld. Warner Bros. released the Westworld game on June 20, 2018. Bethesda notice some similarities, and subsequently filed this lawsuit.

To prove copyright infringement, a plaintiff must show the defendant had access to the copyrighted work, and that there is a substantial similarity between the two works. Behaviour likely had access to Fallout Shelter‘s source code from when it developed the game for Bethesda. However, even access can be inferred if the similarities between two works are so similar that there is no reasonable explanation for the similarities except that one is a copy of the other. Proving substantial similarity for source code can be tricky because separating the non-protectable ideas from protectable expression is difficult. Most courts use the “Abstraction-Filtration-Comparison” test to filter out non-protectable ideas from both works, which can leave a plaintiff with thin copyright protection. Here, Bethesda bases its claim that Behaviour copied the source code on the fact that the Westworld game has the same “bugs” or “glitches” that Fallout Shelter had at release. The presence of the same bugs in alleged infringing software has been used in the past to prove infringement. It will be interesting to see if the Court agrees with Bethesda’s point of view.

While the primary focus of Bethesda’s Complaint is the source code, Bethesda is also claiming that Behaviour copied the artistic style and gameplay elements of Fallout Shelter. The biggest obstacle for Bethesda with these claims will likely be showing that Behaviour copied protectable expression and not just ideas or a scenes à faire of a game or genre. Even when the Complaint compares the artistic or gameplay features of the two games it does so to establish that those features were a result of the copied source code. Not unexpectedly, Warner Bros. responded by saying that Bethesda’s accusations are baseless and “as surprising as they are unsubstantiated.” This case is still developing so we will provide updates as soon as possible.

Apr

2018

Playerunknown’s Battlegrounds Creator sues over alleged Chinese knockoffs

On April 2, 2018, PUBG Corporation and PUBG Santa Monica, Inc. (“PUBG”) sued NetEase, Inc. and NetEase Information Technology Corp. (“NetEase”) over alleged copyright infringement, trade dress infringement, and unfair competition. The complaint alleges, in short, that NetEast’s titles Rules of Survival and Knives Out are knockoffs of PUBG’s massively popular Playerunknown’s Battlegrounds.

PUBG’s lengthy (155 page!) complaint provides a listing of all instances in which Rules of Survival and/or Knives Out allegedly copied Playerunknown’s Battlegrounds. Some examples, as alleged by PUBG:

“Pre-Play Area” – Playerunknown’s Battlegrounds, Rules of Survival, and Knives Out feature a pre-play area “where players can meet each other and try out weapons while waiting for other players to join.”
Play Map – The layout of the maps in all three games are “strikingly similar.”
“Scenes and Locations” – Both Rules of Survival and Knives Out feature, like Playerunknown’s Battlegrounds, locations such as a shooting range, a rural aqueduct, a port with shipping containers, a farm area, two-story hexagonal towers, and the like.
Air Jump – In Rules of Survival and Knives Out, as in Playerunknown’s Battlegrounds, players jump at any point from an airplane onto various portions of a map. Players may then descend in freefall and release a parachute.
Weapons – For example, where Playerunknown’s Battlegrounds features a M416, Rules of Survival features an MA14. Both games also feature, for example, red dot sights, vertical foregrips, bullet loops, and other similar accessories.
Frying Pans – Playerunknown’s Battlegrounds, Rules of Survival, and Knives Out feature frying pan weapons.
“Winner Winner Chicken Dinner” – Both Playerunknown’s Battlegrounds and Rules of Survival use this phrase to indicate the winner of a match. Rules of Survival also has a rubber chicken which may be used as a melee weapon.
Shrinking Gameplay Area – Playerunknown’s Battlegrounds, Rules of Survival, and Knives Out have a progressively shrinking gameplay area and a timer which warns players when a next shrinking event will occur.

Individually, all of the above examples could arguably be found in other video games or in real life. For example, the M416 in Playerunknown’s Battlegrounds’ is arguably a version of the Heckler & Koch HK416. As another example, Playerunknown’s Battlegrounds is far from the progenitor of the term “Winner Winner Chicken Dinner,” as the term originated during the Depression. It seems likely that PUBG will argue that the combination of such elements, rather than the individual elements themselves, has been copied by NetEase.

PUBG is far from the first game company to sue creators of alleged copycat game titles. Tetris Holding, the company that owns the rights to Tetris, won a battle against a copycat app. In that case, the Court found that the fact that game mechanics and game rules are not entitled to protection “does not mean, and cannot mean, that any and all expression related to a game rule or game function is unprotectable” such that Tetris Holdings was “entitled to copyright protection for the way in which it [chose] to express game rules or game play as one would be to the way in which one chooses to express an idea.” Similar battles occurred between the creators of The Sims Social and The Ville and between the creators of Triple Town and Yeti Town. Our firm (Banner & Witcoff), for example, represented Wargaming.net in a similar dispute against Changyou.com involving an alleged knockoff of Wargaming’s World of Tanks.

Tetris Holding, LLC v. Xio Interactive, Inc.

Bethesda sues Warner Bros. over Westworld Mobile Game

Playerunknown’s Battlegrounds Creator sues over alleged Chinese knockoffs

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