Can Cloned Video Games Survive the Battle Royale?

by Pillsbury’s Internet & Social Media Law Blog
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Cloning is the process of creating a video game that is significantly motivated or inspired by an existing popular video game or series. Developers have been cloning popular video games since the 1980s, including Tetris, Doom, Minecraft, Bejeweled and Flappy Bird. Often, game developers create clones in an attempt to confuse users and cash in on a game’s popularity.

So if video game cloning isn’t unusual in the gaming industry, why are we talking about it? Since its release earlier this year, PlayerUnknown’s Battlegrounds, or PUBG, has become the most popular game on Steam, peaking at 1,523,179 concurrent players online. The premise of PUBG is simple: 100 players parachute out of an airplane onto an island where they must scavenge weapons, armor and other items from its abandoned towns and military bases. During the course of the match, the size of the battlefield shrinks, encouraging players to confront one another. The last player or team standing wins the match.

The recently released Fortnite: Battle Royale is essentially a cartoonish take on PUBG premise and includes all of the same gameplay elements. The developer of Fortnite does not deny the similarity to PUBG. In fact, the trailer for Fortnite begins by stating that the game was inspired by PUBG and the developer of Fortnite even directly references PUBG in a blog post explaining his motivations in developing the Battle Royale game.

In response, PUBG developers stated in a press release last week, “We have also noticed that Epic Games references PUBG in the promotion of Fortnite to their community and in communications with the press […]” This was never discussed with us, and we don’t feel that it’s right […] The PUBG community has and continues to provide evidence of the many similarities as we contemplate further action.”

But does any further legal action actually exist? The short answer is probably not. The Battle Royale genre isn’t new. In fact, PUBG’s developer has stated that the game is inspired by the 2000 film Battle Royale. PUBG isn’t even the first game to include Battle Royale elements; the lead designer of PUBG had previously created DayZ: Battle Royale and H1Z1: King of the Kill, two of the most-played Battle Royale games on Steam. All of these Battle Royale games include the same basic principle: players are dropping into a shrinking map and the last person standing wins. Just because a game includes the same basic principles as an existing game does not make it a clone or copy.

A case previously discussed in this blog, Tetris Holding v. Xio Interactive, 863 F. Supp. 2d 394 (D.N.J. 2012), continues to provide significant guidance on how copyrights govern video games. The Court found that Xio Interative copied Tetris; the appearance of the games was nearly identical. In its opinion, the Court states that ideas are not generally protected by copyright. Rather, it is the expression or implementation of those ideas which may be protected. In the Tetris case, numerous aspects of the Xio Interactive game copied the implementation of the ideas in Tetris such that the Court concluded it was an obvious copy of the original. That does not appear to be the case here. PUBG and Fortnite implement different expressive elements using the premise of a Battle Royale game. In particular, it appears that Fortnite has put its own original spin on the idea of PUBG, which a Court would likely determine does not constitute substantial similarity in the eyes of the law.

In Tetris, the Court further noted that game mechanics and other functional game features can be patented. However, it does not appear that the developers of PUBG have patented any particular game mechanics or functional features of their game.

If you are a game developer and want to protect yourself from clones, it is critical to have a comprehensive IP strategy, incorporating copyrights and patents that protect all aspects of your game. Not securing such intellectual property rights, or relying on isolated copyrights or patents, may allow competing game developers the ability to change the expressive elements or game mechanics of your game to create a clone that cashes in on your game’s popularity and your ingenuity.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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