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PUBG vs Fortnite: Let the market decide

A court case in South Korea revives the old question of whether a game concept deserves legal protection - but 'clone wars' should be settled in the market, not the courtroom

PlayerUnknown's Battlegrounds and Fortnite are two of the most successful games in the world right now - both of them effectively cultural phenomena in their own right, driven by the immense popularity not only as games to play, but also as games to watch, with countless hours of streamed gameplay being viewed every day.

They are also, in many respects, pretty much the same game.

Each of them has unique aspects to its execution, of course, but the fundamental concept of them - the 'battle royale' game concept - is broadly the same. PUBG's success predates that of Fortnite, and its creators have groused over Fortnite copying their formula in the past. Now that grousing has escalated into a lawsuit, with PUGB Corp suing Fortnite creator Epic Games in South Korea for copyright violation.

"If you own a pizza shop that starts doing well, and someone else opens a pizza shop nearby as well, you don't try to convince a judge that you own the idea of selling pizza in that part of town; you compete"

I am not an expert on South Korea's copyright laws and have no view on whether PUBG Corp's suit has merit, or even a chance of succeeding - but the broader issues raised here go far beyond a South Korean courtroom. In many ways, this is an expression of a perennial conflict within the games industry, one that's been played out across many different genres and between many different sets of rivals for decades. The fundamental question it asks is this: can you copyright the idea of a game? Is there, or should there be, legal protection for game concepts? If so, where is the line drawn between games which simply belong to the same genre, and legally unacceptable 'clones'?

These questions may not be new, but they certainly feel very relevant right now. As I've written about before, we've only just come off the craze for MOBA games - many of them not hugely differentiated copies of genre originators like DOTA - and now we're ramping up into a similar craze for Battle Royale games. This kind of flocking to a popular concept, however, pales in comparison to the situation on mobile, where absolutely shameless copying of market leaders is the basis of an enormous industry. The mobile market can be incredibly brazen in this regard - regardless of your view of the PUBG / Fortnite case, nobody would accuse Epic of trying to fool would-be PUBG players into picking up Fortnite without realizing they're not the same game (an infringement known as 'passing off') but this is incredibly common in the mobile world, where games deliberately mimicking the art style, presentation and even names of top games are ten a penny.

Historically and generally speaking, the answer to the question of whether you can copyright, patent, trademark or otherwise legally protect a game concept has been "no" - and while it's hard not to have sympathy for developers who wake one morning to find that someone has cloned their brilliantly original game, the reasons for having no legal impediment to this are pretty well-founded.

Regardless of the similarities in gameplay, no one can accuse Epic Games of passing Fortnite off as PlayerUnknown's Battlegrounds

Regardless of the similarities in gameplay, no one can accuse Epic Games of passing Fortnite off as PlayerUnknown's Battlegrounds

Video games, like other media, are already pretty well protected - copyright law, trademark law and in certain cases patent law provide a pretty broad swathe of legal rights and protections to game creators. For the most part, however, these laws provide protection not for concepts, but for specific executions of concepts. You cannot protect the broad idea of a certain type of game, but you can protect your execution of that idea - the specifics of how you implement that idea, the code, artwork and other assets you use, and so on.

That can seem a bit unfair to a developer who feels that they've had a brilliant idea, but fears that their idea will be picked up and executed upon by a bigger company (perhaps even one with a major license to slap on top of the concept), thus squeezing them out of the market they effectively invented. Indeed, it really is rather unfair; if Fortnite had squeezed PUBG entirely out of the market, that would be a colossally unfair situation (though obviously, that's not actually what happened).

"The law is a blunt implement. We imagine the law as a scalpel, deftly slicing in to deal justice. Instead, what we'd get is a sledgehammer, smashing indiscriminately"

The question, however, is whether it's the kind of unfair situation that should be resolved in a courtroom - and here the answer is a truly resounding "no".

The problem is that the law is a blunt implement; when we dream of laws that might protect people with brilliant ideas from losing out when those ideas are executed by a larger competitor, we imagine the law as a scalpel, deftly slicing in to deal justice in only these specifically targeted cases. Instead, what we'd get is a sledgehammer - smashing indiscriminately, often wielded by people we'd prefer not to have their hands on a sledgehammer, and likely damaging many things we'd never intended to impact.

Here's the thing - you and I may be very good at discerning the line which divides games that are unscrupulous clones from games which simply co-exist in the same genre, but it's practically impossible to distil that discernment into a legal code which can be applied by a judge who still calls all video games systems "Nintendos" and describes GTA as "the one where you get points for killing prostitutes". Plus, let's be honest - you and I aren't actually very good at discerning that line.

After all, damn near every genre in existence started out being described, even within the industry, as clones of something or other. First-person shooters were "Doom-clones"; real-time strategy games were "C&C-clones"; 3D platformers were "Mario 64-clones"; open world games were "GTA-clones". These didn't gain respectability as genres because they passed some legal test, but because their sheer volume forced a recognition of their diversity and of the innovation upon the original formula which they encompassed. The progress and advancement of the industry, let alone the interests of consumers, would have been ill-served indeed if a legal framework had existed which allowed id Software to sue Duke Nukem out of existence, or Nintendo to shut down production of Crash Bandicoot.

PUBG may have triggered the current wave of 'battle royale' titles, but granting Bluehole copyright over the concept would set a dangerous precedent

PUBG may have triggered the current wave of 'battle royale' titles, but granting Bluehole copyright over the concept would set a dangerous precedent

That kind of chilling effect would have been dramatic; it could have killed off entire genres, or blocked access to concepts that have become truly fundamental to many games. Imagine the detriment to the industry's development if someone owned the rights to something as basic as "first-person movement controls", or "an open world with missions to pick up and complete". Not only would this be disastrous for the medium, which like any other creative medium relies to a great extent on standing on the shoulders of giants and building upon the work of those who came before; it would also be the worst kind of special pleading. It would grant games a whole new class of legal protection that no other medium enjoys - imaging the ridicule that would greet a proposal that writers should be able to patent certain kinds of plot twists, or directors able to copyright their editing techniques or camera movements.

In the end, there's a pretty simple - if not entirely satisfactory - answer to the question of what to do when there's a sudden dogpile of developers trying to clone a successful game; you treat it as competition. If you own a pizza shop that starts doing well, and someone else opens a pizza shop nearby as well, you don't try to convince a judge that you own the idea of selling pizza in that part of town; you compete. You execute well, you trade in on being the original and the best, and you use the tools at your disposal to make your game into a success even in the face of others adopting your concept. In reality, most of those who hop onto the cloning dogpile will emerge worse for wear; first-mover advantage is powerful, and it's that, rather than distracting court cases, that should be your competitive edge.

Ultimately, attempts to litigate over the concept of a game misses a really important point about video games in general - namely the concepts and ideas are only the starting point of the formula. It's almost a hackneyed point at this stage that people with great ideas for games are ten a penny; the real value lies not in a flash-of-inspiration from an ideas guy, but in the ability to execute superbly on that idea.

Execution is the key; the pouring of effort and talent into a game by a team of very skilled people vastly outweighs any one "eureka!" moment, and as such it's execution, not concept, that deserves and receives legal protection. If PUBG Corp reckons that Fortnite is eating some of its lunch right now, the answer is to look at how well it's executing its concept; this is a struggle that needs to be resolved in the market, not in the courtroom.

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Latest comments (8)

Fortnite is the more fun and superior product, plus the genre predates PUBG.
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Excellent Article.
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Matthew Eakins Technical Lead, HB-Studios5 months ago
I completely disagree with your conclusion. Legal copyright protection for video games, including gameplay, would be good for both the industry and consumers.
The problem you describe about how to decide what is a clone boils down to "I know it when I see it ". The same issue already exists in film and print. Interactive media isn't really all that different. Genre's are not protected, if I want to make a Sci-fi movie I wouldn't be sued for copyright infringement on that alone. If I wanted to make a Sci-fi about a crew of adventurers zooming about the Galaxy and getting in and out of trouble, I'm on safe ground. If I want to make a movie about the star ship Interprise captained by James P. Dirk saving Earth from an alien from the future who has come back to kill us because his wife died and he blames earth, well, Paramount is going to sue my ass, and win.
By my reckoning gameplay would not be the only thing that copyright infringement would be based on, it would only be one part of a larger matrix that includes story, genre, tone, art style, etc. In my opinion affording protection to gameplay is a necessary part of the industry becoming more mature.
Extending copyright protections will not stifle innovation, if anything it will encourage it forcing developers to come up with new ideas or fresh twists on existing techniques. Copyright clearly does not stifle innovation as evidenced by our very healty film, music, print, and television industries.
It will stifle blatant clones, which are bad for both the industry and for players.
In my opinion we need these protections for the independent space to remain healthy. It is not healty for large companies with a lot of money to throw around to copy an indy game and beat out the little guy just by throwing more money at it. That *does* stifle innovation.
I'm a proponent of this case regardless of who wins because either way it builds case law which will influence the future of the industry.
Also, I wanted to point out that judges and the law don't decide cases. Judges preside over cases, juries decide outcomes and it's the lawyers jobs to make sure that they understand the arguments. It doesn't matter if judges or juries are gamers, it's up to the lawyers to educate them as part of making their case.

Edited 1 times. Last edit by Matthew Eakins on 1st June 2018 2:43pm

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Show all comments (8)
David Canela Game & Audio Designer 5 months ago
Also, I wanted to point out that judges and the law don't decide cases. Judges preside over cases, juries decide outcomes and it's the lawyers jobs to make sure that they understand the arguments
.

Maybe in the USA. There's other jurisdictions where it actually is the judges who decide, though I wouldn't know about South Korea.
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Jordan Lund Columnist 5 months ago
@Matthew "Legal copyright protection for video games, including gameplay, would be good for both the industry and consumers."

That hasn't proven to be the case though. About 20 years ago, I forget which company, but someone asserted copyright over the ability to display moves in fighting game training modes. At that point any other company who wanted to have a training mode AND display the moves being made by the player live as they make them either had to pay the copyright holder or remove the feature from the game.

The abuse of IP laws is rife and this would only make things worse for players and the industry.
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Matthew Eakins Technical Lead, HB-Studios5 months ago
@David
You are correct but I suspect juries are more prevalent than Judge only cases. But my point still stands, the judge doesn't need to be a video game expert, it's up to the lawyers to make the case.

@Jordan
I think you might be conflating copyright with patents. There is a patent for Tekken for showing moves. Patents are a very different beast from copyright and I agree that it's a tragedy whenever a video game patent is granted. It's worth noting that, unlike copyright which is granted simply by making something, a patent must be applied for and be clearly defined within a fairly narrow scope. It requires someone to review the application and it be granted. And even then it can still be invalidated. The patent system in general is just plain broken in the modern era.
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It’s not he who builds it first, but those who build it best...wins! And if you are the last person standing, you win by default. Battle royale rules!
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Stanislav Stankovic Game Designer, EA Mobile5 months ago
@Matthew Eakins: Nop, trial by jury in such cases is pretty much only an US thing. Pretty much anywhere else it would be a panel of professionals judges deciding.
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