Wednesday, April 20, 2016

The War Over Video Game Warriors

With special guest blogger YiYang Jiang (Clifton Wolcott), third-year undergraduate student at the School of Law, Shanghai University of Political Science and Law

     China has long had the reputation for fostering rampant piracy of copyrighted works. The Chinese legal system has made great strides in addressing such piracy, including accession to various international conventions on intellectual property rights and implementation of a copyright law very similar to those in the U.S. and elsewhere. Enforcement of these copyright laws has apparently been somewhat lax in the past, but even this has improved in recent years, at least with regard to blatant reproduction of protected works. The Chinese government has heightened its copyright enforcement efforts by increasing the number of raids on counterfeiters, deliberating on several enhancements to administrative enforcement abilities, enhanced infringement penalties, and perhaps even increasing public perception of copyright infringement as illegal. Protection of copyrighted works may have a way to go yet in China, but China does seem to be making progress.

     One of the issues that the Chinese copyright system is also facing is infringement not through out-and-out reproduction of a work in part or in whole but rather infringement by copying only isolated elements of a protected work in order to create a new work. Such partial copying raises issues not only of infringement but also of the copyrightability of the elements copied. A prime example of this is at issue in a case currently pending before the Northern District of California. U.S.-based companies Blizzard Entertainment, Inc. and Valve Corporation sued uCool, Inc. and China-based Lilith Games Co. Ltd. for infringement of the characters, among other elements, in Blizzard and Valve’s copyrighted video games. At least two of the characters in Lilith’s mobile game Soul Hunters, for example, are clearly copied in large part from those in Blizzards’ game World of Warcraft (“WoW”). Although not exactly like their WoW counterparts, the Lilith characters have the identical clothing, weaponry, and even skin color; the only real difference between the two sets of characters is that Lilith’s versions are more cartoon-like, two-dimensional, and cuter than WoW’s more three-dimensional and intimidating versions. Both us feel that such a high degree of imitation, although not exact reproduction, clearly indicates Lilith’s intent to free-ride on the success of Blizzard’s games.

     Indeed, the characters, scenes, storylines, and other elements in Blizzard’s immensely popular and profitable games have apparently been the subject of rampant copying in China and elsewhere. Blizzard does not yet seem to have filed suit in mainland China, however, although it has filed suit in Taiwan against Longtu Games for copyright infringement of Blizzard’s characters. If Blizzard decided to file suit against Lilith and others in China, it is unclear whether Blizzard would prevail. Neither the U.S. nor the Chinese copyright statute states that characters as copyrightable subject matter, and indeed, infringement involving characters entails difficult questions of copyrightability, a problem Blizzard and Valve face in their lawsuit in the U.S. In dismissing (with leave to amend) Blizzard and Valve claim of infringement of the copyright in their games’ characters, the District Court noted that characters are most often not separately copyrightable subject matter and that the plaintiffs therefore face a significant hurdle in showing that their game characters are the exception to the rule. As with most copyrightability issues, the copyrightability of characters as stand-alone “works” depends on the particularity with which they are expressed. Blizzard could not, for example, assert a character copyright over all weapon-toting mythical creatures in general because these are stock characters common to many video games. Blizzard can, however, assert copyright ownership over a particular character if it is “especially distinctive” – whether Blizzard can meet this standard remains to be seen.

     It also remains to be seen what approach the Chinese courts will take to any potential claims of character copyright infringement that Blizzard might file in the future. Chinese often apply the same legal standards that courts in the U.S. and other countries use when it comes to intellectual property cases, although the approach often varies in practice. Indeed, the Chinese courts have addressed a number of cases similar to Blizzard’s, including a number where the defendant was alleged to have copied popular cartoon characters on unauthorized consumer goods (e.g., Ltd. Shenzhen Huaqiang Digital Animation Co. v. Vanguard Superstore; Futabasha Publishers v. Ltd. Shanghai Enjia Trade Development Co.) or in video games characters (e.g., Creative Power Entertainment v. Shaanxi YouJiu Digital Technology Co., Ltd.). The Chinese courts have frequently found for the copyright owners in these cases, but in doing so, the courts have protected the copyrighted characters not as characters per se but as “fine arts” (Article 3(4)) – what under U.S. copyright law would be considered pictorial or graphic work (17 US.C. § 102(a)(5)). This is perhaps a wiser, as the copyrightability of illustrated or animated characters is easier to determine when classified as pictorial or graphic works, avoiding the question of whether the underlying character is a separately copyrightable work; where a character is based on a literary description or live-action depiction, by contrast, the determining copyrightability unavoidably involves more difficult issue of “exceptional distinctiveness.” That being said, the courts in these cases have also looked not only at the similarity between the two works but also the fame or reputation of the characters at issue, suggesting that the Chinese courts may also have implicitly adopted aspects of the U.S. approach to the copyrightability of characters more generally.

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