With Playerunknown’s Battlegrounds becoming an instant worldwide success, it’s no surprise that other developers are looking to cash in on the battle royale game genre.
If you aren’t familiar with Playerunknown’s Battlegrounds (commonly referred to as PUBG), you’ve probably been living under a rock (or you just aren’t into video games – at all). Playerunknown’s Battlegrounds involves 100 players going against each other in a battle royale deathmatch. The goal of Battlegrounds is to be the last player alive on the battlefield. As you play, the playable area of the map and the “safe zones” within it shrink over time.
While the concept of the game seems simple, it has become wildly popular. *Battlegrounds *sold over ten million copies in just the first six months of its release and broke the Steam record of having 1.35 million concurrent players at once.
NetEase Inc., a competing game developer, released two new mobile PVP deathmatch games in 2018. Both games, Rules of Survival and Knives Out, are both similar to PUBG in terms of genre, gameplay, and… virtually everything else, basically.
Rules of Survival’s App Store description states that it contains a “fully upgraded new 8×8 km map that allows 300 players to battle on a wide variety of terrains. Only one will survive!” Knives Out markets itself as having similar gameplay where “100 players are scattered throughout the 6400m*6400m battlefield. Explore the map, collect weapons, take aim, and pull the trigger. Remember, there can only be one winner!”
PUBG Corporation and PUBG Santa Monica, Inc. (collectively referred to as “PUBG” throughout the complaint) were not pleased to see these copycats available in the Google Play and Apple App Store, especially in light of the worldwide release of the *Battlegrounds *mobile game in March. PUBG has been vocal about protecting itself in the past, previously calling out Epic Games, the developer behind Fortnite, for replicating the “experience” of PUBG’s battle royale style in its own game.
PUBG’s complaint against NetEase was filed in the District Court for the Northern District of California on April 2, 2018 and is 155 pages-long. 155 pages!! Thats a lot of attorney billable hours and intern reading hours. The complaint alleges that NetEase is liable for counts of copyright infringement, trade dress infringement, and unfair competition.
PUBG first notes that Battlegrounds contains over 20 individual, protectable elements that entitle it to copyright protection. These protectable aspects include various individual audiovisual elements, the gameplay arrangement itself, and the “look and feel” of Battlegrounds.
For example, PUBG states that “[t]he creative expression of a pre-game lobby and interactive waiting area in Battlegrounds is a copyrightable audio-visual work, individually and/or in combination with other elements of Battlegrounds.” Some of the other protectable features of Battlegrounds cited by PUBG include the distinctive “air drop” of the player to any area on the map at the start of the game, the appearance and layout of the play maps, the character attributes (such as the “boost” factor), the myriad of weapons (including the “iconic” frying pan), and more.
In the next 100 pages of the complaint, PUBG proceeds to provide specific evidence of copying in both Rules of Survival and Knives Out. The infringing games are alleged to have copied the above-mentioned aspects of Battlegrounds, including (but certainly not limited to) the pre-play area experience, the air drop initiation, specific in-game weapons and items, and the look and feel of the maps.
Two particular examples include the fact that the popular catchphrase in Battlegrounds, “Winner Winner Chicken Dinner,” is utilized in both Knives Out’s advertising campaign and in the gameplay of Rules of Survival itself. Additionally, the frying pan (or “pot cover”, as it is called in Knives Out) is available as a melee weapon or worn as armor in both games just as it is in Battlegrounds.
PUBG also points out the existence of confusion in the marketplace regarding the relationship between Battlegrounds, Rules of Survival, and Knives Out, complete with evidence of Rules of Survival and *Knives Out *being referred to as “PUBG on Mobile,” “Mobile PUBG,” and more. It also noted that fans of PUBG and industry commentators have stated that Rules of Survival and Knives Out are simply “rip-offs” of *Battlegrounds *in light of the substantial similarities between the games.
In addition to its claims of copyright infringement PUBG also alleges that it is justified in claiming relief for trade dress infringement. *Trade dress *refers to the packaging or visual appearance of a product on its face that serves to signify the source of a product.
PUBG argues in the complaint that the “total impact and overall audiovisual appearance [of Battlegrounds) has acquired distinctiveness through secondary meaning which identifies its source and which distinguishes it from the products of others.” Because there is a likelihood of confusion as to the source of *Rules of Survival *and Knives Out due to their similarity to *Battlegrounds *(as shown by evidence of consumer confusion in the complaint), PUBG certainly has an interesting case of trade dress infringement here. Finally, PUBG also argues that it has a claim of unfair competition against NetEase, due to the allegedly unlawful and willful infringement of PUBG’s intellectual property rights.
PUBG claims that it has tried to discuss the matter with NetEase outside of court but has been unsuccessful. The complaint wraps up by requesting the removal of Rules of Survival and Knives Out from the marketplace. Of course, it also requests damages including but not limited to attorneys’ fees, restitution damages, and statutory damages in the amount of $150,000.00 per infringed work (or, in the alternative, the actual monetary damages it has suffered from NetEase’s infringement.)
While this case would be an interesting one for copyright precedent, I think that it is likely that it will settle out of court. There is certainly a lingering question as to which aspects of Battlegrounds are protectable under copyright law. For example, it would be interesting to hear what the court thinks regarding the copyrightable nature of the concept of the shrinking map, the expression of certain landscapes within Battlegrounds, the use of a catch phrase or a weapon, and the “look and feel” of the gameplay. Those who are fans of Rules of Survival and Knives Out may see these games disappear from the marketplace soon if there is a settlement on the horizon, but we’ll have to wait to see what NetEase’s next step is.
Author, Caroline Womack, is a 2L at Quinnipiac University School of Law and primarily studies intellectual property law, focusing on video game and internet law.