PlayerUnknown’s Battlegrounds studio Bluehole has made it clear that they are taking claims against Epic seriously in response to the Unreal Engine developer’s release of a battle royale mode for Fortnite. The studio has officially filed for an injunction in South Korea alleging copyright infringement. While Bluehole claims their concerns arise from Epic’s misuse of Bluehole’s trademark in violation of the underlying contract between Epic and Bluehole, the actual complaint alleges infringement of gameplay and UI assets from its game. This recent development presents a few questions concerning cloned games and what can and cannot legally be used when you’re deriving inspiration from another IP.
Playerunknown’s Battlegrounds, or PUBG, is a survival game where 100 players square off in a large island environment to see who can find the best weapons and gear while fighting the other players to the death. The game includes a moving blue wall that continually herds players into the same area to make sure rounds don’t go on for too long.
Fortnite: Battle Royale also includes … well, basically all of that. The trailer begins with a statement saying the game was inspired by PUBG and games in that genre. None of this is subtle.
“We have also noticed that Epic Games references PUBG in the promotion of Fortnite to their community and in communications with the press,” Bluehole’s Chang Han Kim said in a press release. “This was never discussed with us and we don’t feel that it’s right.”
This press release is where it was stated that the Bluehole team is contemplating “further action.”
So what could this mean?
We should first address whether that threat includes legal action before we address whether that action would have any merit. This is never a question a company can or should take lightly, based on my experience as an attorney representing both developers and publishers.
The likelihood of a complaint being filed in court against Epic is really, really low. Bluehole licenses the UE4 engine and has an ongoing relationship with Epic. Suing your licensor, even on a matter unrelated to the license itself, could compromise that relationship.
A consequence of terminating the UE4 license includes pulling any released titles that use the engine, according to the UE4 end user licensing agreement. However, Epic can technically only terminate if the licensee/developer breaches the EULA. Epic would have to show grounds for breach, and the license only prohibits legal action that compromises Epic’s patent rights in its engine.
That being said, we don’t know how deep the relationship between Bluehole and Epic runs. Epic has a history of entering multiple agreements with its more successful or promising developers for marketing or development dollars. There may be more than just the EULA at stake.
Indie developers releasing their first product must engage in a complicated balancing act with their industry relationships. Parties should be called out if they do something wrong. On the other hand, there are consequences to legal or even just public threats against huge companies. Epic has money to burn, influence and the massive amount of leverage in the form of the license itself. Bluehole is taking a risk by even hinting it is considering legal action in a press release that was quoted in so many industry publications. This is a big deal.
Which brings us to the next question: Did Epic do anything wrong? There are some bright-line tests to determine copyright and trademark infringement for clone games. Genres, game mechanics or rule sets generally aren’t subject to copyright protection, however. Those elements aren’t considered copyrightable subject matter, as they are too general, too conceptual or too functional. This is why they fall under patent, and not copyright.
It is easy to both understate and overstate what Copyright protects. Copyright is intended to protect a specific tangible work created by an author for the economic benefit of the author. However, it does not prohibit others from creating a work relying on the same ideas and concepts, provided it doesn’t knowingly borrow copyrightable elements. Copyright has to balance the interest of one content creator against the interests of many. In an effort to maintain that balance, ideas and concepts aren’t protected.
And Copyright generally won’t protect inventions, hardware or tech, algorithms (but it does protect code as a literary work, because you can print it or otherwise memorialize it in document form), methods, game rules, and mechanics because those are covered under Patent law. So a complex technology like a video game can embody every form of IP possible. In contrast, a work of art is 100% copyrightable subject matter.
“Can you imagine a world where there was only ONE RTS game, ONE FPS game, ONE MMO game?” a developer could ask. The intention of copyright is not to grant a monopoly over content creation. It is literally an exclusive right to copy that work, and thus only grants a monopoly to the specific, tangible creative work in question. So infringement requires more than a simple resemblance: it requires both 1) access to the original work (the alleged infringer actually has to borrow from the original work, so independent origin is a perfectly valid defense); and 2) a substantial taking from copyrightable elements of the original. And it can’t be one or two elements — the quality and quantity of a taking need to be significant to qualify as infringement.
Copyright protects against misappropriation of the copyrightable elements in a work — it doesn’t necessarily prohibit others from creating similar or related products. That’s closer to trademark and unfair competition, where the threshold question is whether use of a trademark creates consumer confusion. That’s not really an issue here — Epic referenced PUBG as an influence, but it did not infer any other connection between Epic’s product and Bluehole’s product that might create confusion between who developed what.
In this case, Bluehole would have to show that a) the elements they’re claiming protection for are actually protected; and b) Epic incorporated those protected elements in Fortnite.
Also, please bear in mind that this is a simplified, high level look at just some of the possible legal questions raised. The actual bodies of law addressing these issue are far too complex thanks to ever-changing precedent and judicial pluralism to ever make an exhaustive look at these issues worth the time for anyone but a lawyer. That’s my job, not yours. Just assume that there’s a lot more to every IP lawsuit than you could ever possibly imagine unless you’ve actually been through one.
Epic has been in this business for a long time. It knew what it was doing when it released its Battle Royale mod. Frankly, there is probably nothing under copyright prohibiting it from expanding on that genre. Unless Epic took specific creative, copyrightable elements of PUBG (art assets, audio, code) for Fortnite: Battle Royale, Bluehole probably won’t find much in the way of recourse by pursuing a copyright claim.
Why this is likely an empty legal threat
Epic knows this, because it’s its business to make sure the games it releases are standing on sturdy legal grounds. The lawyers are involved in more situations than most people realize before a game from a major studio is released, and asking the question of infringement before launch or even announcement is one of them. If the mode couldn’t stand up to legal scrutiny, it would never have gotten this far in production.
So what other claims are available to Bluehole? Trademark and unfair competition are two other possible sources of protection. The UE4 EULA grants Epic a broad license to promote PUBG and use Bluehole’s trademarks, however, and that’s assuming the EULA is the only contract between them.
On top of that, the threshold for Trademark infringement is consumer confusion. It is not trademark infringement to compare your product to a similar product, provided you clearly distinguish the two. Identifying the source of inspiration for the new game mode in a press release doesn’t create consumer confusion in the way that, say, a statement like “the new PUBG!” might. You can safely argue that the player won’t get the two games confused in their head.
It is unlikely that this situation will go beyond some harsh words in public, softer words in private negotiations and a settlement/co-existence agreement that may or may not include one or two changes to Fortnite’s Battle Royale mode in the event of obvious copying.
Bluehole is experiencing first-hand what copyright in a free market actually means when you create a wildly successful product. You inspire competition, and this creates an ongoing battle to remain relevant in the genre you’ve created. This is fortunate for consumers, but an understandable headache for Bluehole on its first major hit.
While it is by no means clear whether or not Bluehole would succeed on its threat of
“further action,” the cost associated with pursuing it is in no way a sure thing. In many ways it’s an uphill battle that would normally preclude developers from using a scorched earth tactic like litigation.
Update: We’ve updated the introduction to this piece to include additional details, in light of recent developments regarding Bluehole’s injunction against Epic.
Mona Ibrahim is a Senior Associate at Interactive Entertainment Law Group. She is an avid gamer and has dedicated her career to counseling the video game industry and indie development community.Mona Ibrahim is a Senior Associate at Interactive Entertainment Law Group. She is an avid gamer and has dedicated her career to counseling the video game industry and indie development community.