Video games are becoming a popular form of entertainment, as well as an
important part of the Internet industry. Even during the ongoing pandemic which
has impacted other industries like the entertainment and music industry, the
videogame industry continues to flourish. With the advancement of computing and
graphics technologies, video games are now defined by various elements, which
are the intellectual achievements of designers.
However, the prosperity of video
games also creates a breeding ground for copyright
infringements. Intellectual property has always been at the heart of video
games. When it comes to IP protection, managing the nuances of video games is a
tremendous issue as video games are multi-art form works of authorship that
incorporate human interaction while being executed by a computer programme on
They include music, screenplays, stories, video, paintings,
and characters. As a result, video games are not created as single, simple
works, but as a collection of different aspects that can each be copyrighted
provided they achieve a particular level of originality and inventiveness (e.g.,
the characters in a video game, its soundtrack, settings, audiovisual parts,
The storyline, characters, audio-visuals, graphics and parts of the code are all
prominent attributes of a video game that may be protected under different kinds
of "works" as defined by section 14 of the Copyright Act, 1957. Since Article 2
of the Berne Convention for the Protection of Literary and Artistic Works
provides for the many categories of works protected under copyright, video games
can also be protected through copyright under it.
Background of PUBG V Fortnite case
At the beginning of 2018, the creators of Player Unknown's Battlegrounds ("PUBG"),
Bluehole filed a lawsuit against Fortnite's Epic Games in South Korea on the
grounds of copyright infringement. According to Bluehole, Epic Games was liable
for copyright infringement because some aspects of the new Fortnite resembled
those of PUBG.
It was claimed that Fortnite replicates the PUBG experience
without adding anything unique to the genre. Battle royale is the genre in
question, a game mode based on the same-named Japanese film in which the
government forces a group of teenagers to fight to the death. By the middle of
the year, Bluehole had dropped its claim against Epic Games. The case of PUBG
vs. Fortnite, on the other hand, raised an important question: can anyone
copyright a genre?
In the case of RG Anand v. Deluxe Films
, the Supreme Court of India ruled
that the film could not be regarded as an infringement of the play's screenplay.
The explanation given was that, while the idea behind both the script and the
film was the same, the manner in which they were expressed was significantly
different. As a result, it cannot be considered a copyright violation. The
Bombay High Court has reaffirmed that ideas are not copyrightable in the case of
Mansoob Haider v. Yashraj Films
. After taking away dissimilarities, the
remnant is an idea that is not copyrightable, therefore similarity of ideas does
not imply copyright violation.
Furthermore, in the US, section 102(b) of the Copyright Act states that:
In no case does copyright protection for an original work of authorship extend
to any idea, procedure, process, system, method of operation, concept,
principle, or discovery, regardless of the form in which it is described,
explained, illustrated, or embodied in such work."
Baker v Selden
 was the landmark case
in the United States that recognized the idea-expression divide.
that he owns the copyright on the underlying accounting procedure that he
devised in the book. Selden never requested copyright for the book's first
paragraph, but he did desire copyright for his ideas. The Supreme Court ruled
that copyright cannot be extended to the "ideas" and "art" utilised in the book
and that it can only be granted to the expressions, not the underlying
The general principle of Copyright with regards to a genre
Therefore from the above case laws, it is clear that a general rule of copyright
is that an idea theme or concept portrayed in a game cannot be copyrighted but
contents that form part of the video game are copyrightable. According to the
idea versus expression doctrine, no idea, theme, or concept can be protected by
copyright, but only its literary, artistic, or musical expression can. A video
game genre is an idea, not an expression, and copyright protects the unique
representation of an idea, but not the idea itself.
If genres could be
copyrighted, we'd be limited to only a few first-person shooters, role-playing
games, racing games, and so on, and this would be restrictive for both
developers and gamers. Asserting copyright over ideas will grant the copyright
holder a monopoly, further destabilising the flow of the market because few
people will have complete control.
Analysis of the case of PUBG v Fortnite
Now coming back to the case of PUBG v Fortnite
, The only charge levelled against
Fortnite was that it was developed in the Battle Royale genre by Epic Games. The
Battle Royale genre is not a new concept. In actuality, it is based on the
Japanese legendary film "Battle Royale," in which a tyrannical government
imprisons thousands of high school kids on an island, arms them, and forces them
to kill each other until only one person remains.
While the creators of PUBG may
have launched its battle royale video game before Epic, they cannot prevent
Epic, or anybody else, from creating their own version of the concept, as long
as there aren't too many similarities to replicate PUBG's unique
expression. Epic's distinct approach to the genre explains why their version
looks and feels so different from Bluehole's. PUBG and Fortnite are vastly
different games. Both games have different visuals, The appearance of PUBG is
gritty and realistic, and based on still photographs from the game, it may be
difficult to distinguish it from other gritty, realistic shooting games.
game's colours are generally earthy tones, the weapons appear almost identical
to their real-life equivalents, and the apparel acquired through looting
buildings is about what you'd expect to find in a hastily abandoned residence.
Because the game is intended to be tense, the battle-worn, realistic appearance
is ideal. Fortnite, on the other hand, has a very stylized look that doesn't
disguise the fact that it's computer-generated but rather embraces it.
The colours are extremely brilliant, the weaponry is overdone to the point of
absurdity, and the whole design is cartoon-like. The gameplay is vastly
different, with Fortnite including a building mechanic with resource collection
to build forts, bridges, and other structures to protect the player from
bullets, whereas PUBG is an open battleground with 100 players hosted at a time
on a single server, with players collecting weapons, medical aid, driving cars
and in-game bombings with game restrictions. These variations in gameplay,
distinguish both games, and so, hence, do not constitute an infringement of the
PUBG developers' copyright.
Tetris Holding v. Xio Interactive
, on the other hand, shows what happens when
a game plagiarises another's an original expression and is thus determined to be
liable for copyright infringement. In this case, Tetris Holding, the proprietor
of the hugely popular video game Tetris, sued Xio Interactive, Inc. for
replicating their original interpretation of Tetris' gameplay in their game Mino.
The court was able to distinguish between Tetris' genre - a puzzle game in which
the user manipulates falling blocks to build horizontal lines - and Xio's
intentional copying of Tetris' unique expression in this case. The court found
Xio liable for copyright infringement because it chose to copy Tetris' special
and deliberate design choices (unique expression) despite the near-limitless
number of variations readily accessible to it, to the point where the two games
were remarkably similar and all but inseparable to the layperson.
Whereas most creators are able to minimize their copying of a specific genre's
concepts and rules whilst also adding their own innovative expressive features,
copyright infringement can emerge if the overall idea of the game is expressed
in too many similar ways, especially if there are easily other ways to express
the same idea.
In other words, you could be copying the gameplay and idea, but
you wouldn't be liable for copyright infringement because it would be considered
your own expression of that genre as you are replicating other games within the
same genre but adding your own twist on it, such as adding artistic graphic
elements and creating unique characters that set the game apart.
- Nakamura Y, and Kim S, 'Fortnite And PUBG To Battle In Court Over
Copyright Infringement' (HT Tech, 2022) accessed 5 January 2022
- AIR 1978 SC 1613
- 2014 (59) PTC 292
- 101 U.S. 99 (1879)
- 863 F.Supp.2d 394 (D.N.J. 2012)