Gaming has been an influential part of my life. Growing up, my family and I spent hours playing video games like Gears of War. I left the semi-professional gaming world well before the rise of streaming platforms such as Twitch or Mixer, but the legal framework that governs the uploading and streaming of gaming content online is a fascinating issue for me. To a large extent, these issues are what piqued my interest in intellectual property rights, especially copyright, in the gaming industry.
Over the past few years, there have been several novel legal issues in the gaming industry. For example, in early 2018, there was a feud between Epic Games and the PUBG Corporation. The PUBG Corporation claimed that PUBG was the first game to introduce a “battle royale” mode, therefore considered to be the first true entry in the genre, while Fortnite copied the concept and infringed on the PUBG Corporation’s work. The legal battle was settled privately, but what could the results have been if the parties decided not to settle?
Around the early 2010s, there came a point where – due to the increasing prevalence of mobile gaming – various “clone” games popped up whenever a popular title was released. When Dong Nguyen’s Flappy Bird was released on the Apple Store in 2013, it was the absolute craze for mobile gamers to get as high as a score as they could. Nguyen’s game inspired an explosion of similar games to flood the mobile digital market, with names just screaming copyright infringement, such as Maverick Bird, Fall Out Bird, and Flappy Doge.
Essentially, if a game “looks and feels” like that of a similar game, there’s a good argument for infringement.[1] The look and feel test was adopted in Tetris Holding, LLC et al v. Xio Interactive, where there was such substantial similarity between the visual expressions of the two games that this was akin to literal copying. Similarly, a court can use the Abstraction-Filtration-Comparison test, which would divide a game into pieces to find which elements are ideas and which elements are expressions of the idea.[2] The PUBG Corporation had previously filed a suit against NetEaseTechnology Corporation, who created a similar game to PUBG called Rules of Survival. However this was again settled out of court. The case between Epic Games and the PUBG Corporation differs, as Rules of Survival looked much more like PUBG in terms of visual and mechanical expression than Fortnite does. The Fortnite position has been criticized as a weak claim, as the claim looked to give a monopoly to Epic Games on the battle royale game mode, and if successful, may have opened the gate for more speculative claims to be brought forth.
Along with clone games, recent copyright litigation in the video game industry includes issues of dance choreography. Most notably, Alfonso Ribeiro claims that his performance of the “Carlton dance,” in the Fresh Prince of Bel-Air sitcom’s Will’s Christmas Show episode, was being infringed by Fortnite selling an “emote” called Fresh, which enables a player to dance in a way that is pretty similar to the Carlton dance. While initially rejected by the Copyright Office, if claims are re-filed, a court can make the determination to whether the Carlton dance is sufficiently developed to be found as a protectable choreographic work.[3]
All in all, I have taken great pleasure in exploring the novel legal issues currently emerging in the gaming sector. As someone who has been impacted by the industry in such a personal and meaningful way, I look forward to seeing how the industry grows and analyzing how the law adapts to these changes, hopefully in a way that encourages innovation while also protecting creators.
Written by Daniel Bartolomucci, a third year JD Candidate at Osgoode Hall Law School
[1] Peter Lee & Madhavi Sunder, “The Law of Look and Feel” (2017) 90:3 S Cal L Rev 529 at 540.
[2] Nicholas M Lampros, “Leveling Pains: Clone Gaming and the Changing Dynamics of an Industry” (2013) 28:Annual Review Issue BTLJ 743 at 766.
[3] Ross Bagley, “You Stole My Dance Moves: Copyright Lawsuits over Choreography against Creators of Fortnite” (2020) 30:1 Intellectual Property Litigation 2.
