PUBG Corp., the Korean Subsidiary of Bluehole Studios (the developer of PlayerUnknown's Battlegrounds), has dropped its lawsuit against Fortnite developer Epic Games Inc. PUBG had filed a copyright infringement claim against Epic in South Korea back in January. According to reports, PUBG alleged that Epic had copied PlayerUnknown's assets and user interface. You can read our coverage here. However, on Monday, PUBG sent a letter of withdrawal to Epic's lawyers and the South Korean case was closed. Neither side has stated a reason for the withdrawal. PUBG's lawsuit against Netease Inc. is still ongoing, and we will continue to provide updates when available.

It is worth noting that Tencent Holdings Ltd., a Chinese social media/gaming company, is a part-owner in both Bluehole Studios and Epic - each to the tune of hundreds of millions of dollars - and might not want its investments suing each other. Also, PlayerUnknown's currently runs on Epic's Unreal Engine 4, which could also play a part in the settlement. We may never known the exact reason PUBG withdrew, but the cross-over between the two sides could have been a significant factor. As of right now, this appears to be the end of the legal conflict between PUBG and Epic.

We recently reported on Epic Games suing individuals for cheating in Fortnite. You can read about those cases here, here, here, here, here, here, and here. Recently the Northern District of California declined to grant a motion for default judgment against one of the defendants, Konstantin Vladimirovich Rak. In its complaint, Epic claimed that a YouTube video Mr. Rak had posted violated its exclusive right of public performance. Epic filed for a default judgment after Mr. Rak failed to respond to any court motions. The Court denied the motion for default judgment on several grounds, one of which was the public performance claim was insufficient. The District Court's denial was noteworthy because, in its opinion, the Court questioned whether posting gameplay footage to YouTube constituted a public performance.

Epic contends that Mr. Rak publicly performed Fortnite when he posted to YouTube a video about how to hack the game. Under 17 USC 101, to publicly perform means to transmit or communicate a performance of a work to a substantial number of people. The same statute defines a performance of an audiovisual work as showing its images in any sequence. Even though video games are classified as audiovisual works, there are not many cases explaining what constitutes a public performance of a video game. Epic cites Valve Corp. v. Sierra Entertainment, Inc., F. Supp. 2d 1091 (W.D. Wash. 2004) to support its claim of public performance. The NDCA did not find this citation helpful because the Valve case was primarily a contract dispute, which briefly discussed what constitutes a public performance of a video game.

The District Court also discussed Allen v. Academic Games League of America, Inc., 89 F.3d 614 (9th Cir. 1996), a case briefly discussed in Valve. Allen involved people playing board games in a tournament. The Ninth Circuit held that "playing" is different than "performing," therefore there was no public performance. However, Allen involved board games, not video games. In Red Baron-Franklin Park, Inc. v. Taito Corp., 888 F.2d 275 (4th Cir. 1989), the Fourth Circuit held a video game arcade publicly performed Double Dragon because the game images were being reproduced. For many, this would seem to indicate that playing a game would be a performance because playing requires the reproduction of game images. Neither Epic nor the NDCA mentioned the Red Baron-Franklin Park case. It could be possible the NDCA agrees with this thinking, but it did reiterate the Allen Court's hesitation on granting copyright owners the power to "control when and where purchasers of games may play the game." Ultimately, the NDCA declined to decide the issue because the motion was only for a default judgment and neither side fully briefed the issue. The Court also warned Epic that the sole citation of Valve was not enough to establish a public performance.

The primary focus of Epic's lawsuits is to prevent hackers from cheating in Fortnite. Epic asked the Court for a default judgment because Mr. Rak did not respond. The goal of the public performance claim was to remove a video by Mr. Rak showing others how to hack Fortnite. The Northern District of California felt that Epic had not done enough to establish a public performance claim, but in the Court's analysis, it questioned what it means to preform a video game. The denial order does not change any current laws, but it does indicate the Court's willingness to address the issue of gamers posting videos on YouTube. The Court's interest in the topic may be the result of how popular "Let's Play" videos and streams have become. It will probably be awhile before there is an actual ruling, but Epic has a chance to amend its complaint, so it will be interesting to see Epic's response to the Court's public performance analysis. We will continue to follow this case and provide updates when available.

As previously reported, Ed Sheeran was sued back in June for copyright infringement.  Well either the sharks smell blood, or perhaps there's something in the water, but be's been sued again based on another of his songs, as reported by CNN.

This time Ed Sheeran has been sued by the estate of Marvin Gaye, the same folks who sued (and won, pending appeal) Robin Thicke in the Blurred Lines case.  The allegation?  That Ed Sheeran's Thinking Out Loud infringes the copyright in Marvin Gaye's "Let's Get It On."  First, listen for yourself:

Ed Sheeran, Thinking Out Loud:


Marvin Gaye, Let's Get It On:


What do you think?  Does this case have legs?

This isn't video game related, but music copyright cases always interest me.  First, the details, from Law360:

This case dealt with the copyright status of video games, particularly whether video games are eligible for registration. Atari Games Corporation released the paddle and ball video game Breakout in 1976. Atari applied for copyright registration for the work in 1987. Copyright Registrar Ralph Oman denied registration on February 13, 1987, and again on May 22, 1987, because the work “did not contain at least a minimum amount of original pictorial or graphic authorship, or authorship in sounds.” Atari challenged Oman’s rejections.

The District Court granted summary judgment to Oman, noting that video games are not per se copyrightable, or more creative than other mediums. The Court of Appeals reversed the decision and held that Breakout was copyrightable because it is a fixed work that meets the minimum requirement for creativity in copyright.  This is a seminal case that helped establish the copyrightability of video games in general.

From Law360:

Google won a high-profile jury verdict Thursday that its use of Oracle’s copyrighted Java software code in its Android mobile operating system was protected by the fair use doctrine, clearing the company of liability that could have reached $8.8 billion.

Following a court dismissal of LOLApp’s motion to dismiss, which included the court noting that copyright protection of video games extended to the elements of plot, theme, dialogue, mood, setting, pace and character, and, further stating that there was at least a question of fact regarding whether LOLApps had taken these underlying elements from Spry Fox (but perhaps expressed them using different characters), this case was settled out of court for an undisclosed sum. 

Case closed - sorry for the delay.

Back in November 2010, a former World of Warcraft game master sued Blizzard alleging copyright infringement based on use of her voice with the adorable baby murlocs in the game. According to the facts presented in that case, Blizzard had sent an email to all GMs inviting them to audition for vocal parts in July 2005. Around 120 GMs, including the plaintiff signed up and attended two recording sessions with Blizzard sound engineers. Later, the plaintiff discovered that her recordings were used in baby murloc sound effects (and also a song for when the baby murloc breaks into dance). The plaintiff contended that the recordings were outside the scope of her employment, that she owned copyright in them, and that they were used without authorization in the game.

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In 2012, the Northern District of California ruled in Blizzard's favor. The court in that case pointed to the employee handbook for Game Masters, which included this portion:

Game Masters are customer service specialists with expert knowledge of the game who are [] present as characters within World of Warcraft’s epic fantasy setting to provide assistance and guidance to players while also coordinating world functionality. In this capacity, GM’s serve as the direct link between Blizzard and its customers. Additionally, GM’s are responsible for in-game customer support, helping manage our online community, and assisting with the creation of content during the ever ongoing development of the game. 

(emphasis added). The fact that the plaintiff was paid for her sound recording audition carried significant weight with the court as well as that the plaintiff knew that the recordings would be used in promoting the game. The court held that the work was a work made for hire and that copyright solely belonged to Blizzard, and rendered summary judgment in Blizzard's favor. The court also awarded attorney's fees to Blizzard.

Now the case is on appeal to the Ninth Circuit. Per Law360 (subscription required) and an audio recording of the hearing, the plaintiff argues that the lower court misinterpreted the GMs job responsibilities and that the quoted portion of the handbook is in direct contradiction to other portions of the handbook. The plaintiff continues to argue that the sound recordings were made outside the scope of her employment and thus should copyright should belong to her. Blizzard argues that her job responsibilities as stated involved content creation and that the lower court's decision was sound.

The issues in this case were made a lot easier for Blizzard due to their employee handbook. It is a good practice to ensure that content included in your game was made by employees acting within stated job responsibilities, or subject to an express work for hire agreement / copyright assignment.

We will continue to watch this case for interesting developments.

The Pac-Man game is an electronic maze-chase arcade game. Players use a joystick to navigate the maze whereby the central character, the "gobbler" maze-chaser, consumes pink dots. The game ends when a monster catches the gobbler. Similar to the Pac-Man game, defendant's Packri Monster is played using a joystick, whereby the player moves a character through the maze. The Packri Monster gives the illusion of the monster eating the dots in a manner resembling the monster in Pac-Man.

Plaintiff Nintendo (at the time) was in the coin-operated electronic video game business, and filed suit against defendant Elcon for copyright and trademark infringement. Defendant is in the business of assembly and sale of coin-operated electronic video games and other video game components.

Plaintiff owns the video game Donkey Kong, and the audio-video presentation of the game is covered by plaintiff's copyright registration. The certificate of copyright registration is prima facie evidence that plaintiff's Donkey Kong game is protected and that the copyright is valid.

Plaintiff extensively promoted and advertised Donkey Kong throughout the United States. Donkey Kong is an original audio-visual game with proper copyright protection of the characters, obstacles, background, and sequence of the game plays. Plaintiff entered into a licensing agreement with the Japanese corporation Falcon, Inc. in September 1981, which authorized Falcon to produce the game Crazy Kong. Crazy Kong was identical or similar to Donkey Kong. The game was prohibited from being imported into the United States and the license stipulated the game could only be sold within Japan.

Defendant imports the Crazy Kong games into the United States without authorization from the plaintiff, which the court found to be sufficient evidence to constitute copyright infringement. Because defendant did not obtain plaintiff's authorization for the publication of the Crazy Kong games, plaintiff cannot lose protection for failing to have a copyright notice on the games.

The court granted plaintiff's motion for a preliminary injunction, finding that the plaintiff showed there was a substantial likelihood of success on the copyright infringement and unfair competition claims.

Good Morning to You Productions Corp., a production company working on a documentary about the song, sued Warner Chappel Music in New York federal court in June 2013, claiming that "Happy Birthday to You" was first copyrighted in 1893 and thus is long past expiration. The suit alleges Warner/Chappell had unlawfully collected millions of dollars in licensing fees for the tune by claiming it holds the exclusive right to control distribution, performances and reproductions of it. Good Morning to You said it had filed suit in response to Warner/Chappell's demand that it pay a $1,500 licensing fee to use the song in a documentary about the history of the song.

Well yesterday, September 22, 2015, a California Federal judge agreed, and ruled that Warner Chappel's copyright is invalid, except with respect to a narrow piano arrangement of music to accompany the song. U.S. District Judge George H. King found that Warner had never acquired the rights to the song’s lyrics, according to Tuesday’s decision. In copyright records, court records and several agreements over the use of the song, nowhere was there discussion of the lyrics to “Happy Birthday,” according to the decision. Some records mention the melody or piano arrangement, but not the words to the song, the judge said.

This means that video game developers can use the song "Happy Birthday to You" without fear of the Warner Chappel Music Police sending you a nasty-gram, demanding a royalty. The case is Good Morning to You Productions Corp. et al v. Warner Chappell Music Inc. et al., case number 2:13-cv-04460, in the U.S. District Court for the Central District of California.

Read more at Law360.com.

While not exactly a video game case, we thought our readers might find this of interest.

On August 5, 2015, Plaintiff Joseph Tierney sued Defendants Moschino S.p.A. and Jeremy Scott for copyright and trademark infringement, unfair competition, and violation of the right of publicity.

Tierney is a graffiti artist known as "Rime", who is famous for his work entitled, "Vandal Eyes". Vandal Eyes (shown above, left) is a giant mural covering the side of a building, which Rime was asked to create by a Detroit property owner. Defendants are high-end fashion designers, who used Rime's artwork and fake signature on their clothing line, advertisements, and in media photographs, without Rime's consent. Defendants used literal copies of the Vandal Eyes mural in their Fall/Winter 2015 Collection. The Collection gained international media attention through the world when it was displayed on runways and worn by celebrities including actress Katy Perry and model Gigi Hadid.

Plaintiff alleges his reputation and career have been damaged by Defendants' unauthorized use of his artwork. Plaintiff stated that he carefully chose a target audience to display his graffiti artwork, and he deliberately did not associate with Moschino's fashion line. Additionally, Plaintiff alleges that Defendants benefited from using the mural because Moschino revenues increased by about 10% since the launch of the Collection.

We will continue to monitor this case for interesting updates.

This case was terminated on July 1, 2013.  All claims and counterclaims were dismissed with prejudice.  The parties came to a confidential settlement agreement during a mediation session.

Former independent contractor Ken Penders created scripts and artwork for the Sonic comic books, which Sega had licensed Archie Comics to create in 1992. Penders registered copyrights for the work he did for Archie Comics, and in 2010 he sent Archie Comics a letter alleging infringement of his copyrights. Following receipt of the letter, Archie Comics filed this suit against Penders to cancel his copyright registrations and to obtain declaratory judgment and other remedies for breach of contract.

Further details can be found in the original post here.

In a second major case decided today, the 9th Circuit held that there is no independent copyright held by a performer in a motion picture (film, TV, etc.) work.

As reported by Law360, in an en banc decision the full Ninth Circuit on Monday overturned a highly-controversial panel decision that forced Google Inc. to pull an anti-Islam video from YouTube, calling it a ‘dubious’ copyright ruling that gave short shrift to the First Amendment.

The appeals court’s reversal came in the closely-watched case of Cindy Lee Garcia, an actress who sued Google after receiving death threats based on her role in the incendiary “Innocence of Muslims” — the same film that allegedly sparked riots in the Middle East in 2012.

“[Plaintiff's] theory … would enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces of a unitary motion picture without satisfying the requirements of the Copyright Act,” the court wrote. “Putting aside the rhetoric of Hollywood hijinks and the dissent’s dramatics, this case must be decided on the law.”

This is a good day for copyright law.  A decision the other way would have sent Hollywood into disarray and turned the film industry on its head, creating a new threat that countless actors could hold copyright owners hostage for vast sums of unpaid royalties.  This case is also important for video game developers who have hired actors as part of the creation process.

Despite the negative impact the opposite decision could have had, that's not WHY this is a good decision.  Rather, a movie, television show, video game, or any other audiovisual work is ultimately the vision a single person (e.g., the director) or entity (e.g., the video game developer or publisher).  Allowing actors a copyright right in their individual performances would, by implication, mean that the director does not actually have ultimate control to decide what is and is not included within a film or video game.  But that's the not the reality.  The reality is that the director, if she doesn't like the actor's performance, requires the actor to reshoot the scene until the actor's performance is what the director wants the performance to be.  Today's case reaffirms that principle.

Not exactly a video game case, but important the world of Copyrights nonetheless.  The decision everyone has been waiting for it out.  Today the U.S. Supreme Court held that Aereo is equivalent to a cable company, and is performing copyrighted works to the public without paying a license, and therefore they infringe the rights of copyright holders.

The court states:

...we find [Aereo] highly similar to those of the CATV systems in [previous Supreme Court cases]. And those are activities that the 1976 amendments sought to bring within thes cope of the Copyright Act. Insofar as there are differences, those differences concern not the nature of the service that Aereo provides so much as the technological manner in which it provides the service. We conclude that those differences are not adequate to place Aereo’s activities outside the scope of the Act. For these reasons, we conclude that Aereo “perform[s]” petitioners’ copyrighted works “publicly,” as those terms are defined by the Transmit Clause. We therefore reverse the contrary judgment of the Court of Appeals, and weremand the case for further proceedings consistent with this opinion.

Unless there is a legislation change, that's the end of the road for Aereo as we know it.

Cloud service provides, however, can breath a sigh of relief.  The court interprets the term "the public" to apply to a group of individuals acting as ordinary members of the public who pay primarily to watch broadcast television programs.  The court further states:

We have said that it does not extend to those who act as owners or possessors of the relevant product. And we have not considered whether the public performance right is infringed when the user of a service pays primarily for something other than the transmission of copyrighted works, such as the remote storage of content. See Brief for United States as Amicus Curiae 31 (distinguishing cloud based storage services because they “offer consumers more numerous and convenient means of playing back copies that the consumers have already lawfully acquired” (emphasis in original)). In addition, an entity does not transmit to the public if it does not transmit to a substantial number of people outside of a family and its social circle.

The court also states, in the Syllabus of the opinion, that in view of "the limited nature of the Court's holding, the Court does not believe its decision will discourage the emergence or use of different kinds of technologies"

So here's my initial $.02 on this case.

Aereo will have an initial brief dampening effect on technological development, because of the psychological impact that will weigh on technologists as they are developing new technologies. In the back of their minds, they will be thinking “remember what happened to Aereo? They spent all that money and then were shut down. We don’t want that to happen to us.” However, the Court actually goes out of its way in an attempt to prevent the decision from stifling innovation by limiting its decision to the specific technology used by Aereo. The court clearly articulates that cloud service providers in general should remain unaffected by the decision, and the Court further states that in view of "the limited nature of the Court's holding, the Court does not believe its decision will discourage the emergence or use of different kinds of technologies.” So while there may be an initial delay as technologists do a sanity check on their innovations, technology should continue to advance as usual.

The Supreme Court took a common sense approach by telling technologists not to put form over substance. This is the second time the Supreme Court has held that you can’t manipulate technology to skirt copyright laws. They said it to Grokster, and now they’ve said it again to Aereo. If you’re sitting in a technology development meeting at your company, and someone asks “how can we deploy this technology to avoid paying a license fee?”, I’d think twice about that approach, and make sure that you have legal counsel weigh in on the risks associated with that technology. Despite this, the ruling is not a death knell for technology development, and in fact reinforces the viability of cloud computing solutions in general. However, just as the Supreme Court has done here, technologists must take a common sense approach when designing new products to determine whether those products will run afoul of copyright law.