$100m mobile game copyright infringement case settle for…a court-ordered public apology?
This week we saw a $100m mobile game copyright infringement case settle for…a court-ordered public apology? Well, that’s perhaps only partially true since all other terms of the settlement remain confidential, but the case has indeed finally come to an end!
The case I’m talking about was filed back in April 2015 by Machine Zone Inc., the creators of ‘Game of War’ (the game with all of the Kate Upton – and now Mariah Carey - commercials) against a studio called Ember Entertainment, creators of a game called ‘Empire Z’. I won’t go into huge detail of the facts (a really nice summary can be found here), but the super TL:DR is:
Below are a couple of screenshots I’ve nabbed from the original complaint showing some of the similarities between the two games.
Caveat Time - Right off the bat, it’s important to caveat the importance of this result - remember that the terms of the settlement are almost entirely confidential, so we don’t really know what was decided or why – maybe they settled for $10m, maybe it was $0. Also, the terms will have been agreed between the parties and not demanded by the court, so we can’t exactly tell what implications this has (if any) for future cases that are fully tested before a US court. That said, it’s an interesting result to look at in light of the different trends developing around cases of copyright infringement in video games between the US and the UK and to try and guess what’s going on behind the scenes.
In the UK, courts seem to be reluctant to find copyright infringement unless there has been direct copying of really important parts of a game like its code, artwork or music – i.e. in the majority of cases one developer literally has to have lifted the source code or character artwork etc from another’s game and the other party must be able to prove it. There’s not really been much inclination by courts to find copyright infringement where the mere ‘look and feel’ of a game is similar.
In relation to video games this can be shown in the case of Nova v Mazooma, a case involving several top-down pool games. Despite similarities in mechanics and aesthetic, the court ruled there was no copyright infringement since no source code had been actually copied – ‘look and feel’ was not enough.
A similar line of thinking was later upheld in the case of SAS v WPL in 2010 (this time in relation to computer software – which admittedly under law seem to be treated slightly differently from games, but the same thinking can be applied) where the court stated that there is no copyright infringement when a company which does not have access to the source code of a program studies, observes and tests that program to create another program with the same functionality. In other words, the mere fact two programs play/look/operate similarly, if there has been no literal copying, there’s no infringement.
In the US, courts were initially hesitant to find copyright infringement in video games cases: think back to ‘Asteroids’/’Meteors’ and ‘Street Fighter’/’Fighter’s History’ – 2 cases where there were huge similarities in aesthetics/UI/game design between the relevant games, but there was held to be no copyright infringement (the reasoning being once you filter out all the elements common to that particular genre of game – health bars, martial arts moves, space ships, asteroids etc – there’s really not a lot that’s similar - or left).
More recently though, US courts seem to be more willing to find copyright infringement in video games cases, even when there is no literal copying of source code or art assets (unlike the UK courts). In Tetris v Mino, the court stated “there is such similarity between the visual expression of Tetris and Mino that it is akin to literal copying”.
In Triple Town v Yeti Town the court ruled that, even though there had been no literal copying of source code or art assets and that the visual style had been changed up, the two games were substantially similar in concept, feel, rules and mechanics and that there was copyright infringement. It’s worth noting that there were some aggravating factors which may have helped the court reach its decision here, such as the two parties being in discussions to dev/publish Triple Town together when Yeti Town suddenly popped up from nowhere!
Tetris and Triple Town show that US courts are willing to go further than UK courts are (which pretty much require the direct copying of code/assets etc) and actually look at game mechanics, rules etc for similarities - they still won't go so far as to actually play the games themselves though...
Game of War / Empire Z
Now, again, we have no details about the settlement reached here so this case is perhaps of limited use for developers in the future. But looking at the approach the US courts have taken to date, on first glance and from the info we have available, it seems Machine Zone would have a decent shot at it.
In the joint statement released after the settlement the companies said “Ember used some elements of Game of War: Fire Age in the original version of Empire Z, for which Ember apologizes. Ember has taken steps to remove these elements from the current and any future versions of Empire Z.” So it sounds like things weren’t looking too great for Empire Z – but how bad, we can’t tell.
It’s hard to say which elements the above is referring to (considering the list of similarities in Machine Zone’s complaint extends to over 20 pages – with pictures – yay!), but similarities included: (i) types of building for construction and the resources they produced, (ii) the denominations of in-app-purchases and how much these cost, (iii) quest bonuses, (iv) UI layout, (v) mini-game layout, (vi) research trees layout and contents, and more.
If this case were to have been brought before a UK court, would a different outcome have been reached? Possibly, since Machine Zone would arguably have had a trickier time proving infringement, making Ember less inclined to settling (again, mere speculation since we don’t know precisely why the case settled, or for what).
Until the UK gets its own test case for copyright infringement in a fully fleshed out, modern video game (Nova's game was pretty basic and SAS was about program software, not games) it’s tricky to say how things would go down. Unless you are ready for a fairly tricky legal fight in court, best bet for UK devs out there is to (i) communicate with infringers – it may be innocent, (ii) protect your game with other (and arguably easier to enforce) IP rights, like trade marks, (iii) release games multi-platforms simultaneously where possible to minimise time for clones, (iv) ask fans to review your games on app stores to increase search rankings, (v) build and improve your game to make it better than the clones!
Thanks for reading!
Header Photo: (c) owned by Square Enix - thanks for making Vivi so awesome!