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Analyzing Copyright Infringement Through PUBG v/s Fortnite Case

Video games are becoming a popular form of entertainment, as well as an important part of the Internet industry. Even during the ongoing pandemic which has impacted other industries like the entertainment and music industry, the videogame industry continues to flourish. With the advancement of computing and graphics technologies, video games are now defined by various elements, which are the intellectual achievements of designers.

However, the prosperity of video games also creates a breeding ground for copyright infringements. Intellectual property has always been at the heart of video games. When it comes to IP protection, managing the nuances of video games is a tremendous issue as video games are multi-art form works of authorship that incorporate human interaction while being executed by a computer programme on specified hardware.

They include music, screenplays, stories, video, paintings, and characters. As a result, video games are not created as single, simple works, but as a collection of different aspects that can each be copyrighted provided they achieve a particular level of originality and inventiveness (e.g., the characters in a video game, its soundtrack, settings, audiovisual parts, etc.).

The storyline, characters, audio-visuals, graphics and parts of the code are all prominent attributes of a video game that may be protected under different kinds of "works" as defined by section 14 of the Copyright Act, 1957. Since Article 2 of the Berne Convention for the Protection of Literary and Artistic Works provides for the many categories of works protected under copyright, video games can also be protected through copyright under it.

Background of PUBG V Fortnite case

At the beginning of 2018, the creators of Player Unknown's Battlegrounds ("PUBG"), Bluehole filed a lawsuit against Fortnite's Epic Games in South Korea on the grounds of copyright infringement. According to Bluehole, Epic Games was liable for copyright infringement because some aspects of the new Fortnite resembled those of PUBG[1].

It was claimed that Fortnite replicates the PUBG experience without adding anything unique to the genre. Battle royale is the genre in question, a game mode based on the same-named Japanese film in which the government forces a group of teenagers to fight to the death. By the middle of the year, Bluehole had dropped its claim against Epic Games. The case of PUBG vs. Fortnite, on the other hand, raised an important question: can anyone copyright a genre?

Case Laws
In the case of RG Anand v. Deluxe Films[2], the Supreme Court of India ruled that the film could not be regarded as an infringement of the play's screenplay. The explanation given was that, while the idea behind both the script and the film was the same, the manner in which they were expressed was significantly different. As a result, it cannot be considered a copyright violation. The Bombay High Court has reaffirmed that ideas are not copyrightable in the case of Mansoob Haider v. Yashraj Films[3]. After taking away dissimilarities, the remnant is an idea that is not copyrightable, therefore similarity of ideas does not imply copyright violation.

Furthermore, in the US, section 102(b) of the Copyright Act states that:
In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

Baker v Selden
[4] was the landmark case in the United States that recognized the idea-expression divide.

Selden claimed that he owns the copyright on the underlying accounting procedure that he devised in the book. Selden never requested copyright for the book's first paragraph, but he did desire copyright for his ideas. The Supreme Court ruled that copyright cannot be extended to the "ideas" and "art" utilised in the book and that it can only be granted to the expressions, not the underlying methodology.

The general principle of Copyright with regards to a genre

Therefore from the above case laws, it is clear that a general rule of copyright is that an idea theme or concept portrayed in a game cannot be copyrighted but contents that form part of the video game are copyrightable. According to the idea versus expression doctrine, no idea, theme, or concept can be protected by copyright, but only its literary, artistic, or musical expression can. A video game genre is an idea, not an expression, and copyright protects the unique representation of an idea, but not the idea itself.

If genres could be copyrighted, we'd be limited to only a few first-person shooters, role-playing games, racing games, and so on, and this would be restrictive for both developers and gamers. Asserting copyright over ideas will grant the copyright holder a monopoly, further destabilising the flow of the market because few people will have complete control.

Analysis of the case of PUBG v Fortnite

Now coming back to the case of PUBG v Fortnite, The only charge levelled against Fortnite was that it was developed in the Battle Royale genre by Epic Games. The Battle Royale genre is not a new concept. In actuality, it is based on the Japanese legendary film "Battle Royale," in which a tyrannical government imprisons thousands of high school kids on an island, arms them, and forces them to kill each other until only one person remains.

While the creators of PUBG may have launched its battle royale video game before Epic, they cannot prevent Epic, or anybody else, from creating their own version of the concept, as long as there aren't too many similarities to replicate PUBG's unique expression. Epic's distinct approach to the genre explains why their version looks and feels so different from Bluehole's. PUBG and Fortnite are vastly different games. Both games have different visuals, The appearance of PUBG is gritty and realistic, and based on still photographs from the game, it may be difficult to distinguish it from other gritty, realistic shooting games.

The game's colours are generally earthy tones, the weapons appear almost identical to their real-life equivalents, and the apparel acquired through looting buildings is about what you'd expect to find in a hastily abandoned residence. Because the game is intended to be tense, the battle-worn, realistic appearance is ideal. Fortnite, on the other hand, has a very stylized look that doesn't disguise the fact that it's computer-generated but rather embraces it.

The colours are extremely brilliant, the weaponry is overdone to the point of absurdity, and the whole design is cartoon-like. The gameplay is vastly different, with Fortnite including a building mechanic with resource collection to build forts, bridges, and other structures to protect the player from bullets, whereas PUBG is an open battleground with 100 players hosted at a time on a single server, with players collecting weapons, medical aid, driving cars and in-game bombings with game restrictions. These variations in gameplay, distinguish both games, and so, hence, do not constitute an infringement of the PUBG developers' copyright.

Tetris Holding v. Xio Interactive[5], on the other hand, shows what happens when a game plagiarises another's an original expression and is thus determined to be liable for copyright infringement. In this case, Tetris Holding, the proprietor of the hugely popular video game Tetris, sued Xio Interactive, Inc. for replicating their original interpretation of Tetris' gameplay in their game Mino.

The court was able to distinguish between Tetris' genre - a puzzle game in which the user manipulates falling blocks to build horizontal lines - and Xio's intentional copying of Tetris' unique expression in this case. The court found Xio liable for copyright infringement because it chose to copy Tetris' special and deliberate design choices (unique expression) despite the near-limitless number of variations readily accessible to it, to the point where the two games were remarkably similar and all but inseparable to the layperson.

Whereas most creators are able to minimize their copying of a specific genre's concepts and rules whilst also adding their own innovative expressive features, copyright infringement can emerge if the overall idea of the game is expressed in too many similar ways, especially if there are easily other ways to express the same idea.

In other words, you could 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 as you are replicating other games within the same genre but adding your own twist on it, such as adding artistic graphic elements and creating unique characters that set the game apart.

  1. Nakamura Y, and Kim S, 'Fortnite And PUBG To Battle In Court Over Copyright Infringement' (HT Tech, 2022) accessed 5 January 2022
  2. AIR 1978 SC 1613
  3. 2014 (59) PTC 292
  4. 101 U.S. 99 (1879)
  5. 863 F.Supp.2d 394 (D.N.J. 2012)

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