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IP Newsletter | Spring/Summer 2019
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TRADEMARK, DESIGN, COPYRIGHT & UNFAIR COMPETITION
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Supreme Court Rules that Copying of Video Game Rules Can Constitute Copyright Infringement
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On June 27, 2019, the Korean Supreme Court held that Defendant Avocado Entertainment Inc.'s Forest Mania game ("Defendant's Game") infringed Plaintiff King.com Limited's copyrights on its Farm Heroes Saga game ("Plaintiff's Game"), finding substantial similarities between Plaintiff's Game and Defendant's Game. The ruling is significant because this is the first time the Supreme Court has acknowledged copyright infringement based primarily on video game rules and mechanics. The Supreme Court reversed the lower decision of non-infringement, and remanded the case to the Seoul High Court.
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Although there were some differences in terms of character and detailed screen designs between Plaintiff's Game and Defendant's Game, Plaintiff asserted copyright infringement based on detailed similarities between the rules and mechanics of the two games, as well as their arrangements and compositions.
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[Figure: Comparison of Plaintiff's Game and Defendant's Game]
| Category |
Plaintiff's Game "Farm Heroes Saga" |
Defendant's Game "Forest Mania" |
| Map Screen |
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| Hero Mode |
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Special
Tile/Character |
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Interruption
Rule |
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* Source: Plaintiff's and Defendant's websites and game screens, decisions of the first instance court and appellate court
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Prior to the Supreme Court's decision, it was generally assumed by Korean courts that (i) game rules per se constituted mere non-copyrightable ideas; (ii) that any particular selection, arrangement and composition of game rules could only be copyrightable if they exhibited the author's unique individuality; and (iii) that if there are operational limitations of computers or mobile games (e.g., limited screen space, memory capacity, compatibility issues, etc.), it is difficult to consider those specific rules embedded in the games as unique expressions of the author for purposes of copyright. As a result, courts generally have ignored game rules when reviewing whether two games were similar to determine copyright infringement, and on the rare occasions rules have been considered, courts have required a high degree of creativity in selection, arrangement and composition of such rules before considering them relevant to the copyright infringement analysis.
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In this case, the lower courts had found that the specific rules of Plaintiff's Game were mere "ideas," and that the composition of these rules did not constitute a copyrightable "expression" given the general characteristics of "match-3" games (of which Plaintiff's Game was one example) and the physical limits imposed by mobile gaming. The lower courts thus reviewed only expressions of the two games such as the composition of the screens and character designs, and denied the existence of substantial similarity.
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The Supreme Court indicated the lower courts improperly disregarded the game rules at issue, holding that, "in addition to recognizing the creativity of each element comprising the games, it should also considered whether the selection, arrangement and composition of such elements are creative and distinguishable enough to be protected as copyright in reviewing the creativity of the games." The Supreme Court considered the game rules of Plaintiff's Game as significant elements that added to the creativity of the game, and held that the selection, arrangement, and organic composition of all elements of Plaintiff's Game, including the game rules, game modes, fighting levels and individual visual effects, were creative expressions that were entirely included in Defendant's Game.
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The Supreme Court's decision substantially broadens the scope of protection afforded to video games by copyright law, to the extent that game rules must now be considered in reviewing the creative expression of any game. Video game developers in Korea will likely find it more difficult to simply copy an existing video game concept without making some substantial changes to their games both in terms of characters and appearance and also game rules and gameplay mechanics.
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For more information, please visit our website: www.ip.kimchang.com
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