Ever wonder how countless candy crush games can co-exist, or how developers have gotten away with cloning popular video games over the years?

That is because “clones” are (mostly earnest or, with a lot of good faith, can be viewed as) attempts to expand on gameplay ideas, and it is not legally possible for a single developer or company to own gameplay elements or even a whole genre. That is a result of copyright law’s purpose to only protect the unique expression of ideas, and never the ideas themselves – and a video game genre is an idea as opposed to an expression. Actually, imitation of gameplay ideas and genres is encouraged by Intellectual Property Laws so long as developers add their own spin on it. For at its core, copyright law incentivizes the creation of new works. Generally, this is good news as otherwise, we would be limited to only a few first-person shooters, role-playing games, racing games, etc., and such a lack of creative flexibility would be stifling for both developers and gamers.

What’s a genre, what’s an idea, and what do they have to do with games and copying gameplay

A video game genre is an idea. It is made up of so-called “tropes” and “scenes a’ faire,” without which a genre-specific game cannot be developed. In other words, a game genre is made up of specific and typical rules, mechanics, and gameplay elements, in addition to many other types of genre-specific and necessary elements that relate to elements like arche types, graphics, UI, etc. – the latter of which we will talk about another time. To exemplify, the basic gameplay of a fighting game (i) is to hit while not being hit; (ii) likely revolves around martial arts’ moves, with specific offensive and defensive maneuvers; (iii) between two or more opponents; (vi) displays a color-changing vitality bar at the top of the screen; and (v) the fighters from a side view, to name only a few elements that “make” the genre, and are considered part of the unprotectable idea. In contrast, it is the various, creative expressions of this general idea that enables a wide range of fighting games to exist. Each game has their own characters; their own story lines; their own different offensive and defensive moves; and so forth, etc. – you catch the drift. Essentially, its own unique way of combining the rules and mechanics, as well as all other components of the video game.

Copying can and cannot be infringement; Where are you on the scale?

Unfortunately, it isn’t all that simple: First, there is no legal definition of what is a mechanic and a rule; second, a judge would even less likely know what they are; and third, even if they were to know, it’s not as simple as: copying mechanics = no infringement. Rather, each situation must be looked at on a case by case basis. In certain cases, copying mechanics and rules could be infringement and in others it could not. That is because copyright protects the unique expression, which is reflected in the overall look and feel of all the elements involved, from infringement by substantially similar expressions. In other words: you can make your game based off an idea by using genre-specific elements, but you can’t use all of these elements together in such a specific arrangement that it resembles closely that of another game’s rules, mechanics, and gameplay elements. In short: You can’t copy and paste and then defend yourself with “I am only using genre-specific elements.” However, finding out where you end up lying on this scale, either all the way on the left, i.e. on the copying-an-idea side, or all the way on the right, i.e. on the you’ve-copy-pasted-the-unique-expression side, is a difficult task.

Other problems out there: Suing is a big unknown and expensive, and what about patents?

The difficulties of understanding where a game lies on this scale have several roots beyond copyright law’s homemade problems. One issue, which is beyond the scope of this blog, lies with the law’s uncertainty as to whether mechanics and rules are functional elements and therefore entirely outside of the realm of copyright, and only protectable by patents. Another concern lies with courts and judges’ inexperience with understanding video games and the expense of lawsuits if there is a difficult, unsolved question at hand. Because of that, there are limited samples of courts giving guidance to understanding how to handle this scale.

However, there have been circumstances, albeit rare, in which courts have determined that the scale has been tipped to the point of actually copying the unique expression of a game. By way of example, a claim against Fortnite: Battle Royale was dropped because it was clear that Epic Games had only copied the idea of the Battle Royale genre; whereas a federal court found that Tetris’s unique expression had in fact been copied by a Chinese developer and therefore found the developer liable for copyright infringement. The differences lie in what exactly was copied from the original game, and what (or the lack therefore) was added to create a novel way of expressing the same idea.

PUBG vs. Fortnite

At the beginning 2018, the creators of PlayerUnknown’s Battlegrounds (“PUBG”), Bluehole, filed for an injunction against Epic Games, claiming that Epic had copied PUBG’s game items and user interface (UI) in their subsequently released Fortnite: Battle Royale (“Fortnite”). According to Bluehole, Epic Games was liable for copyright infringement because some aspects of the new Fortnite mimicked that of PUBG: Both open with 100 players parachuting out of an airplane onto an increasingly shrinking island to duke it out until there is one sole survivor. It didn’t help that Fortnite’s own trailer proclaimed that the game was is in fact inspired by PUBG. However, Bluehole dropped their claim against Epic Games by the middle of the year.

Why didn’t this even make it to court? Because the only thing that Epic Games was “guilty” of was creating a game within the Battle Royale genre. The concept of the Battle Royale genre – last man standing on a shrinking island littered with enemies and weapons – is not new. In fact, it is actually derived from the Japanese cult-classic film “Battle Royale,” in which dozens of high-school students are placed on an island by their totalitarian government, given weapons, and forced to kill one another until only one person remains. And while the makers of PUBG may have released their battle royal video game before Epic, they cannot stop Epic nor anyone else for that matter from making its own version of the idea, so long as they haven’t amassed enough similarities to shift too far on the scale as to copy the unique expression of PUBG.

And Epic’s unique take on the genre is exactly why the look and feel of their version varies greatly from that of Bluehole’s: Fortnite’s cartoonish atmosphere creates a goofy undertone, which is starkly different from the somber, dire tone of PUBG; Fornite is a third-person shooter, whereas PUBG is a mixed first-person/third-person shooter; and there is a building aspect to Fortnite that PUBG doesn’t have: effectively constructing and destroying structures is a crucial survival component of Fortnite, while in PUBG players have no such option. These unique aspects of Fortnite is Epic’s creative way of expressing their own version of a Battle Royale videogame. And because Epic only reused the rules and mechanics of the Battle Royale genre while expressing it in a different manner, Bluehole’s copyright infringement claim was very likely a losing argument which would have been a huge waste of time and money to follow through with.

Tetris v. Xio – the difference between an idea and the expression of an idea

In contrast, Tetris Holding v. Xio Interactive illustrates what it looks like when a subsequently released game copies the unique expression of another and thus found to be liable for copyright infringement. In this case, the owner of the immensely popular video game Tetris, Tetris Holding, brought suit against defendant Xio Interactive, Inc. for copying their original expression of Tetris’s game play in their game Mino. Here, the court was able to distinguish between Tetris’ genre – a puzzle game where the user manipulates pieces of falling blocks to create horizontal lines – and the ways Xio deliberately copied Tetris’s unique expression. The court found Mino to be identical to Tetris in ways beyond its basic unprotectable genre: the style of the pieces in both games were nearly indistinguishable in both their look and the way they moved, rotated, fell, and behaved; both games’ screen borders were composed of identical bricks (same texture and bright colors); the dimensions of both of the games’ playing fields were the same; both had a preview of the next piece about to fall; both games’ pieces changed to the exact same color when they were locked with accumulated pieces; and both games’ playing fields’ automatically filled in the exact same way when the game was over. The court clarified that: “[n]one of these elements are part of the idea (or the rules or the functionality) of Tetris, but rather are means of expressing those ideas.” Because Xio had chosen to copy Tetris’s specific and deliberate design choices despite the “almost unlimited number of variations that were available to it,” so much so that the two games were nearly identical and all but indistinguishable to the common observer, the court found Xio liable for copyright infringement.

Takeaway

Although most developers are able to limit their copying to a specific genre’s mechanics and rules while contributing their own creative expressive elements, the issue of copyright infringement may arise if there are too many similarities between the way the overall idea of the game is expressed, especially if there were easily other ways to express the same idea. Remember, while copyright law may seem to protect only the narrow spectrum of unique expression, there is a limit as to how far a game developer may go when creating a new game that is inspired by a previously released game. Essentially, if you create a game by mimicking other games within the same genre but put your own spin on it, like adding creative visual elements and developing strong, unique characters that set the game apart, you may be copying the gameplay and idea, but you wouldn’t be liable for copyright infringement because it would be considered your own expression of that genre.

Author: Jennifer Kleinman and Daniel Koburger

First Published: 07/08/2020