Idea v. Expression: Game Studio Bluehole Gets Its Fur Up Over Epic Games Putting 100 Vs. 100 Player Battle Royale Into Game

from the needless-anger dept

Of all the things that most people get wrong about copyright law, the idea/expression dichotomy has to rank near the top. The confusion over this is easily explained by the pervasive ownership culture that has emerged organically from an intellectual property ecosystem that only moves in the direction of more protectionism. Because of that culture, most people simply assume that the creation of the idea is itself a copyrightable thing, rather than the reality which is that copyright only applies to specific expression. The useful example at hand is that one cannot copyright a superhero named after an animal that wears a mask and a cape, but one can copyright Batman, particularly any books, comics, or movies in which Batman is depicted.

As already stated, this reality evades many people. But it probably shouldn't evade those in industries dominated by copyright, such as the video game industry. Despite that, Bluehole, developers of the wildly popular PlayerUnknown's Battlegrounds developer, appears to have its fur up over another studio, Epic Games, releasing a "battle royale" game mode for its Fortnite title.

In a press release this morning, PlayerUnknown's Battlegrounds developer Bluehole took a shot at Epic Games, calling out Fortnite for cloning the 100-man PVP gameplay style with its upcoming free update ‘Battle Royale.’

“We’ve had an ongoing relationship with Epic Games throughout PUBG’s development as they are the creators of [Unreal Engine 4], the engine we licensed for the game,” Bluehole vice president Chang Han Kim said in the press release. “After listening to the growing feedback from our community and reviewing the gameplay for ourselves, we are concerned that Fortnite may be replicating the experience for which PUBG is known.”

This is a game studio getting upset over what is purely an idea, not an expression. Having 100 players face off against another 100 players in a game mode is not expression and is no more unique than, say, first-person shooter games, itself a genre with innumerable entrants. Bluehole goes on to note that it is going to "contemplate further action", but whatever that action would be would not include a successful legal action against Epic Games. There is simply nothing remotely like copyright infringement here.

Strangely, Bluehole also makes much of its claim that Epic Games referenced PlayerUnknown Battlegrounds to promote Fortnite, which sort of sounds like trademark law territory. The problem, both from a legal standpoint and from a public relations standpoint, is that this claim appears to amount to Epic Games applauding Bluehole on the Playstation Blog.

This may be a reference to Epic creative director Donald Mustard’s note on the PlayStation Blog, in which he wrote: “We love Battle Royale games like PUBG and thought Fortnite would make a great foundation for our own version.”

But that's neither trademark infringement nor evidence for copyright infringement. Even as Epic gives a full-throated acknowledgement that it is seeking to emulate a game mode from Bluehole's game, it's just a game mode, not a specific expression. That simply isn't copyright infringement, any more so than someone saying, "Doom was great, so now I want to make a first-person shooter game like it."

Idea/expression dichotomy: learn it, folks. It will keep you from paying lawyers to lose a case for you.

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Filed Under: battle royale, copyright, expression, fortnite, idea, playerunkown's battlegrounds, video games
Companies: bluehole, epic games

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  1. identicon
    Beech, 29 Sep 2017 @ 2:25am

    Re: Re: Re: Re: It's actually not about copyright or trademark

    Read the linked article. It doesn't mention copyright at all. The initial article reads more to me like this game company had learned that a much larger competitor is moving into their niche and they aren't happy about it. They aren't saying they're getting ripped off, and this is unfair etc. They're saying they've worked closely with Epic and feel a bit betrayed that Epic decided to release a product that is so similar to theirs.

    They also don't like that Epic is using the old "If you liked X try Y" marketing strategy "against" them. Which again, as just about every bag of generic cereal in the supermarket can attest, Epic is allowed to. But using it to hone in on a small-time competitor is kind of a dick move.

    This is the Zynga situation all over again. If you don't recall, Zynga went around and found promising games on Facebook then released near clones that were just slightly different enough to not infringe any copyrights, since game concepts aren't copyrightable but specific art elements are. People were pissed that their games were getting copied so quickly by professionals, but there's NOTHING they could do. It's scummy, and it really is unfortunate for small time facebook app creators, but it's legal.

    Overall I think the journalistic integrity of this article is much lower than the standard usually set by Techdirt. Not only did he get the number of players in a game wrong (up to 20 five-man teams, not 100 v 100 teamfight) but this article is clearly misleading people into thinking that Bluehole is getting all copyright-lawsuit-threateny when that is not the connotation of the linked article at all. They are just upset that a company they've been working closely with is going to be stealing their market share. TOTALLY LEGAL, but understandable.

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