Judicial approach to determining gameplay copyright infringement

There have been many cases of copyright infringement regarding gameplay in recent years, with some infringers even ordered to pay RMB50 million (USD6.9 million) in damages, the highest amount awarded to date in game-related infringement disputes. Behind the huge compensation, how does the court decide whether the gameplay constitutes a copyright infringement? Based on judicial cases available at present, this article outlines the following judicial approaches to determining copyright infringement in gameplay.

Types of work involved

In judicial practice, there are usually two modes of copyright protection for gameplay. One is to provide overall protection for the game at issue, and the other is to provide separate protection for particular elements of the game, such as textual descriptions and artistic images, categorised as literary and artistic works, respectively. With the accumulation of judicial experience, there is little dispute that online games can be protected as a whole. However, the types of work they constitute have changed due to the revision of the Copyright Law in 2020.

Before the Copyright Law was amended, plaintiffs and courts mostly protected the gameplay by arguing that the overall game visuals constituted cinematographic works. After the Copyright Law was amended to add “other intellectual achievements” to the types of works, the courts have gradually developed new ideas about whether the gameplay – such as game structure, systems, numerical planning and corresponding relations – could be included in the protection of audiovisual works (formerly categorised as cinematographic works). The protection of gameplay as “other intellectual achievements” may become a prevailing trend in judicial practice going forward.

Infringement scope of comparison

The first step in assessing potential infringement is to determine the scope of comparison. According to the idea-expression dichotomy, the Copyright Law does not protect abstract ideas, concepts or systems. Therefore, ideas should be removed from the scope of comparison first.

For example, in a strategy and simulation game, the players fulfil the main mission through a series of decisions and battles within a specific time and space. To this end, the game should provide a basic design of rules such as lands, resources and seasonal missions. These basic rules fall in the scope of ideas, which are not protected by the Copyright Law.

Apart from ideas, the historical facts, literary works and other contents in the public domain – as well as expressions that are not created for literary, scientific or artistic purposes such as game operation rules for novice protection, recharge packages, seasonal awards and the like, which are only for commercial purposes – should be excluded from the scope of comparison, because they are not “works” defined in the Copyright Law.

Determining substantial similarity

Once the scope of comparison is established, the court employs various methods to compare the two games, including:

Identifying any substantial similarity by comparing individual elements. The comparison involves scrutinising individual elements such as artistic images, game maps, character skills, weapons, equipment and non-player characters (NPCs). Each element’s specific functions or design are evaluated to determine if there is a one-to-one correspondence in the specific way of presenting an element, indicating substantial similarity.

Whether the interrelation and coupling between elements/rules constitute a substantial similarity. Substantial similarity is not determined by comparing individual elements. The court will also consider the interrelation and coupling between elements/rules within the overall game structure to ascertain if there is substantial similarity in the selection, arrangement, combination and interaction of different elements and rules.

Whether the allegedly infringing game retains the core/distinctive features of the copyrighted game. The court will focus on whether the core/distinctive features of both games are similar. The core/distinctive features of gameplay can generally be determined based on the game theme, player experience, comparison of prior games, etc.

In Minecraft v Netcraft, for example, the core mission and features system of Minecraft emphasises players’ freedom to create and destroy blocks, and progress in the game, while Netcraft focuses on social networking. Since the design of mission and feature systems differs significantly between the two games, the court ruled in favour of no plagiarism.

Whether the allegedly infringing game copies the unique mark or errors of the copyrighted game. The use of distinctive identifiers or errors from the copyrighted game in the accused game can serve as initial evidence of substantial similarity. For example, in Rise of Kingdoms v Commander, the misuse of punctuation marks and randomly set amount of recharge awards in the plaintiff’s game were entirely adopted by the defendant’s game, leading the court to deem this replication as clearly exceeding reasonable bounds.

Whether the overall presentation of the game gives the players a sense of consistency. The purpose of expression is to engage the audience, and analysing the similarity of gameplay should be closely tied to the player’s gaming experience.

Therefore, the court will usually also evaluate the two games in dispute based on the following player perceptions: whether existing player reviews suggest a similarity between the two games; whether the players opine that the two games are highly similar from the overall interface effect; whether the differences between the games fundamentally impact player experience; whether the content in question is an essential step or process in players’ experience of a particular gameplay.

With reference to the above-mentioned dimensions, when determining whether the gameplay of two games constitutes similarity, incorporating the perspective of players for first-hand experience can be beneficial. If the experiential feedback shows a high level of consistency, it may increase the likelihood of substantial similarity.

Jeff Yang is a director at Wang Jing & GH Law Firm