How to sue a cloner

The question of cloning usually leads to great agitation, and I’ve written about the technical issues of what is legal before.

I think I am in the minority for believing that weak copyright protections are preferable to strong ones, but I do believe that strong copyright protections would eventually lead to all game genres effectively being owned by large companies with many lawyers.

So, PLAYERUNKNOWN’S BATTLEGROUNDS: When Fortnite Battle Royale came out (the more successful game as of now), it was widely seen as copying PUBG’s battle royale format – except
a) this wasn’t invented by PUBG
b) a game format like battle royale is not the kind of thing you can copyright (it’s an idea), but you have copyright over the expression of that idea, so legal action has to happen on the grounds that the offending party made too many similar design decisions that were not necessary.

Now Ars Technica reports that PUBG corp is suing Chinese developer Netease. Their legal argument is illustrative of how such lawsuits can be made: the general game structure of PUBG cannot be legally defended, but a developer that makes too many similar choices in game design, level design, and visual design will be legally vulnerable:

The suit individually describes characteristics of the game as “a copyrightable audio-visual work, individually and/or in combination with other elements of Battlegrounds,” and it includes screenshots of the competing game to make a case of infringement. Remarkably, PUBG Corp lists what it believes are 25 copyrightable characteristics about the game…

PUBG Corp’s argument appears to hinge on that “in combination with other elements” label, as both targeted games include examples of each of the 25 elements by way of screenshot or gameplay description. As the lawsuit contends, “The use of cookware as a weapon or armor in a shooter game, the use of certain vehicles and landscapes and combinations thereof, the use of distinctive supply boxes, and the celebratory reference to chicken are elements of ornamental flair that are not functional but have acquired secondary meaning, as shown by their use by players in memes, parodies, skits and other contexts to refer to the Battlegrounds game and to its developer, i.e., PUBG.”

 

One thought on “How to sue a cloner”

  1. A genre as it is can not be copyrightable (from my point of view), since it is a description of an idea and is loosely defined with prefferation to some unique or distinct game mechanics compared to other genres or it’s inherited family genre, hence the problems when it comes with definitions of game genres. In terms of Tetris, the game itself is a genre and it’s hard to make similar genre to it (cause it uses all variations of four blocks), unless you like make Pentris, which would add an extra block, though it could be debatable if the format itself would be exactly the same, how much of a clone of the original the game would be.
    PUBG, coming from survival genre, has nothing much original in it’s game and used ideas of others to make the game. Looking at both games, they are going for the semi-realistic or realistic look & feel, but art and objects are not the same. Also one is a PC game other is a mobile game, meaning the mechanics & experiance playing the game should be diferent or to say one simulates the experiance of the play of a nother, neither have games for both markets.
    I will stop here and woun’t go more into it, cause I haven’t played either and can’t judge if the look-a-feels experiance would be enough to call it a direct clone, if playing one without knowing it’s name. But if one game does use the catchphrase of a nother and it isn’t a common catchphrase, it should change it.

    In addition this reminded me there is also a mobile game called Mobile Legends (youtube & it’s adds, otherwise I wouldn’t know) and it’s well practically a look-a-like of Leagues of Legends, but did anyone hear anything about that? No. Though it seems there is also an ongoing second lawsuit. (looked up upon finishing writting, had no idea about it)

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