Copyright and Video Game “IP”: The Story Being Told
Disclaimer: I am a lawyer but I am not your lawyer and am not affiliated with any company or party involved in this lawsuit. This article is meant to describe and explain the current state of copyright law, and nothing in this article should be construed as legal advice for you, another party, or anyone that may interact with or read this article. No information shared or exchanged herein creates an attorney-client relationship. There is only general information regarding the law being provided in this article, and nothing I say should be construed as a legal argument on behalf of, in support of, or representing and/or with the approval of any party, involved or otherwise. This article is meant to educate; it is not part of my practice.
Last Thursday, Riot Games filed a lawsuit against Chinese mobile game corporation Moonton over alleged copyright infringement. The claim states that Moonton’s titles Magic Rush and Mobile Legends (across its multiple iterations) infringe on the copyrights that Riot owns in League of Legends, its worldwide PC gaming phenomenon that needs no introduction.
I noticed a lot of commenters, whether they be trained/knowledgable in the law or otherwise, assuming or claiming that it seems like an “open shut” case. For the record, I probably agree. On the merits, it seems like a pretty one-sided case for Riot Games here. But I wanted to write this post because I am seeing a lot of misconceptions about what is actually at issue and what parts of the League of Legends IP is actually in play. The case is fairly one-sided, but it’s a bit more nuanced than you might think.
What is Copyright?
We’re going to start with a fundamental question since it is actually central to this discussion: What actually is copyright? Copyright is the body of law that protects the works of art created by authors, and it gives them the exclusive right to reproduce, distribute, or make derivative works of their pieces (among a few other niche rights). Now each of these phrases is in bold (thanks new-age editing tools) because each has its own operative role in what’s at issue. The main issue though is the first phrase: “works of art.”
Only works of art are protected. I say only because of a specific concept in copyright law called the “idea-expression dichotomy.” Ideas cannot be protected by copyright law, as there are only so many ideas in the world and we want to be careful about who we grant exclusive rights over those to. That’s why we leave idea-protection to the patent law system with its procedural checks and limited rights (20 years for patents as opposed to it-seems-like-forever for copyrights).
This is very important in the video game industry. Your specific expression of a concept in a video game is protected, but the idea of implementing that concept is not. It’s why there are a million side-scroller games and they can all co-exist. Because the concept of making a side-scroller is free for everyone to use… you just can’t take the assets and implementation work of another and use it as your own. This is also why characters like Vi and Doomfist or Ashe and Drow or Yasuo and Susanoo (SMITE; specified since I know some people might have no idea who I mean) can coexist across different game titles. The idea of a mechanized fist wall destroyer that pins people to walls, frost-tipped arrow shooting archers with white hair, and … generic samurai champions that most people hate because their kits are overload- sorry digression… These characters can all coexist without infringing on each others’ game copyrights because the ideas of the characters are free to use, but the specific expression is not.
The most obvious example of this is Sun Wukong and his use in many different games as Wukong, Sun Wukong, “Monkey King,” etc. Wukong is a character or mythological figure whose story and existence spans centuries into history. But it’s perfectly fine to continually adapt his story and character into video game titles because it’s part of what we call the “public domain.” So even though games may all call him Wukong, no one is infringing the other because no one owns the right to the name or character (probably).
So wait how does Riot win here?
A lot of the complaint filed by Riot points to similarities between its characters and those of the Moonton games. There’s a character with features very similar to Annie: she’s a young girl whose primary element is fire, she has a stacking mechanic that leads into a stun, her ultimate is to summon a giant monster, and she has two abilities that seem to function similarly to Annie’s Q and W. The issue that Riot’s going to face (one of many) is that they will have to parse between what is protectable Riot Games IP and what is not.
Copyright law has had a hard time dealing with characters, and the context this usually comes up in is with super heroes. By the way side trivia, “super hero” is a trademark owned jointly by DC and Marvel (I believe those two), and no one else may call their city/world saving characters with superhuman powers “super heroes” without infringing their exclusive trademark rights. But that’s another story. Returning to copyright, characters often tow the line between idea and expression, the issue above. Describe Superman to yourself in your head. He’s a very strong man that can fly, has unique alien-originating super powers, and often saves the world from similarly powerful villains. Notice the issue? That describes a LOT of super heroes, and there’s been a lot of litigation involving different super heroes and “knockoffs” of them by competing artists. Some of the more famous cases involves Rocky, James Bond, and yes Mickey Mouse. The cases first ask if they are even protectable characters before even looking to whether infringement happened.
Gut reaction would say, “Hey of course Superman can be copyrighted, that’s why no one else makes Superman comics!” And you’re right. There are two primary tests courts use for when characters can go from unprotected ideas to protected expressions. The first — given to us by the evergreen wisdom of Learned Hand — looks at both the physical and graphical depictions of the character as well as its personality as told through its stories. It then asks whether the character has been so sufficiently characterized and described, so “distinctly delineated,” that they transcend from general character archetypes into specific embodiment expressions. The other test — from a case involving Sam Spade and Maltese Falcon — asks whether the character is so extremely well-delineated as to constitute the “story being told.” Under this, probably harder test, a character only moves from idea to expression when its unmistakable characterization becomes a story unto itself.
But these are just tools to reach the actual goal, which is to find a character so clearly described and detailed that they transcend generic archetypal depiction and become protectable in itself. This is often why many fan artists mistakenly believe that their works aren’t infringing. Just because you don’t directly trace or otherwise re-translate the artwork depictions of a character does not mean you are not infringing the art at issue. The character itself may be so distinctly delineated that even purporting to make an art depiction of it may be infringing. It just so happens that fan art and fan fiction tend to help artwork grow in the market, so authors tend to let them go.
But you said Riot still wins…?
Now I have to clarify one thing here. This character test only matters if you’re claiming one character infringed another. The James Bond case claimed that a super spy type character with a British accent driving a luxury sports car in a commercial was clearly supposed to be a representation of James Bond. But there are other protectable elements in video games and even for specific characters. A character’s actual depiction and the assets used in the video game — such as the in game sprite, splash art, voice, and particles — are all protectable either individually or as a whole.
A video game copyright is actually just a compilation of other copyrights over different works of art that combine into one whole. The game file assets, the source and open code used that piece them together, the audio elements like voices and songs, the map visuals, animation pieces, etc. etc. etc. Video games are giant mashups of a bunch of different (usually) individually protectable works of art, and game companies make sure to craft licenses so that they ultimately become the owner of the copyright in each individual piece. That way they can sue for infringement as is the case here, relying on the work as a whole, and not having to go piece by piece.
And that’s where I think Riot wins on this one. The test for infringement is that you must have (1) valid copyright in protected works of art (2) that are actually copied by the alleged infringer, (3) which are substantially similar to the original as to constitute misappropriation. Assuming Riot has valid copyright in its depictions of characters and assets in the game, they should be able to convince a jury that the striking similarities between its game and the infringing games (best evidence is the Red Brambleback in my opinion, which looks almost pixel-for-pixel like that in Mobile Legends) make it clear that actual copying occurred in a way that is confusingly and unfairly similar. But a piecemeal approach where each individual character is compared by its archetypal depiction and abilities seems to be the more difficult road. It can also be a way for Riot to make a statement that its characters are protected and distinct, but for the sake of this specific case I think it’s unnecessary. They can instead focus on the actual assets and visual similarities of the two works rather than trying to convince a jury that Annie, Warwick, and Lux are sufficiently distinct delineations of the pyromaniac little redhead girl (common anime trope), anthropomorphic wolf that hunts people (literal nursery rhyme character), and cheerful blonde girl that fights with a magic wand (… Cmon…).
As a side note, it is most likely that none of this matters. Something a lot of people noticed in the complaint is that Riot included in the co-defendants “John Does 1-X.” As a redditor by the name of Pennoyer v. Neff (great name by the way) pointed out, this is a strategic tool in litigation when you know of the entity and some individuals that are your primary targets, but where there may be a multitude of other potentially liable individuals (like employees, parent companies, and yet-to-be-named managing officers). The initial goal for Riot is probably to ascertain as many identities as they can, and then end the suit early with a settlement that will stop the issue from happening in the future without having to go all the way through litigation. In any case, I hope that helps a bit in understanding what’s really at issue and how copyright plays out in video games.
