What do you think about smartphone game copyrights?
Explanation based on the abandoned RPG game case verdict!
In recent years, a large number of game apps for smartphones have been released, and their quality is improving day by day.
Have you ever had the experience of playing a smartphone game and thinking, "This might be similar to that game?"
When it comes to presenting and operating the game in the limited environment of a smartphone screen, it seems inevitable that the games will end up being similar, but doesn't this amount to infringing on the copyright of the original game app?
In a case involving copyright infringement alleging that a competitor was imitating a smartphone game app of the company, the Tokyo District Court handed down a ruling on February 2021, 2, and the Intellectual Property High Court handed down a ruling on the appeal on September 18 of the same year (Judgment).
In conclusion, the court ruled that although there were indeed similarities between the plaintiff's and defendant's smartphone games, this did not amount to copyright infringement.
Why was it determined that there was no copyright infringement even though the works are similar?
In this article, we will use this trial as an example to explain copyright for smartphone games, including the key points to consider for a work to be recognized as a work of authorship.
table of contents
What kind of trial was it?
Background and overview of this case
In March 29, Company X (Plaintiff) released a smartphone app called "Idle Girls: A Hundred Blossoming Moe Princesses" (hereinafter referred to as the "Plaintiff's Game"), an idle RPG game.
The idle RPG game genre is characterized by the fact that the game progresses even when you are not operating your smartphone, and characters' levels increase and you can obtain items.
Even people who don't have time to thoroughly play games can enjoy them, and the plaintiff's game was one such game that gained popularity.
On the other hand, in July 30, Company Y (Defendant) released a smartphone app called "Senhime Collection: Maidens of the Sengoku Ranbu" (hereinafter referred to as the "Defendant's Game"), which is also an idle RPG game.
The defendant's game was very similar in appearance and mechanics to the plaintiff's game, which sparked online speculation that it was a rip-off.
Company X filed a lawsuit against Company Y, seeking an injunction against the distribution of the defendant's game and compensation for damages, alleging copyright infringement.
What was the legal issue?
In order to prove copyright infringement, it is common to first assume that the plaintiff's game is a "work," and then determine whether the defendant's game reproduces or otherwise alters it (a two-step test).
Therefore, the usual issue in dispute is whether the plaintiff's game is a "work of authorship."
The present court has adopted a different approach to judgment.
Specifically, the court first extracts the common parts between the plaintiff's game and the defendant's game, and then, if those parts are found to have the characteristics of a copyrighted work, it determines whether they constitute copyright infringement (the filtration test).
Because this method of judgment was adopted in this trial, the following two points became legal issues in determining the validity of X Company's claims.
Key points of this case
- Are the common parts relating to the game's structure, functions, screen layout, etc. recognized as "copyrightable works"?
- Can the common parts related to game programs (source codes) be recognized as "copyrightable works"?
What is the key to a work being recognized as a "copyrightable work"?
What is a "work"?
"Copyrighted work" means:A creative expression of ideas or emotions that falls within the scope of literature, science, art, or music.It is defined as (Article 2, Paragraph 1, Item 1 of the Copyright Act).
Four requirements for copyrighted work
- It must express "thoughts or feelings"
- It must be a creative expression.
- It is something that is "expressed"
- It must be "in the realm of literature, academia, art, or music."
In order for something to be considered a "work" under the Copyright Act, it must meet the four requirements above.
When determining whether the common parts of multiple works are considered to be "copyrightable works," the judgment is based on whether the common parts meet the four requirements listed above.
In this trial, the dispute was over whether the work met the requirements of "being a creative expression" (creativity requirement) and "being an expression" (expression requirement).
Let's take a closer look at each of these requirements below.
What is "creatively" expressed?
Under copyright law, something can be considered "creative" if it expresses some aspect of the author's individuality. It goes without saying that novels, paintings, and music are copyrighted works, but diaries, letters, children's drawings, and compositions are also widely recognized as "creative."
However, when an existing work is copied faithfully, the individuality of the copyist is not expressed, and therefore "creativity" is not recognized.
In addition, in cases where anyone would have to use almost the same expressions (when unavoidable expressions are used) or where the expressions would be almost the same no matter who created the work (when common expressions are used), it is considered that the author's individuality is not expressed, and therefore "creativity" is not recognized.
Interpretation of the "creativity" requirement
In order for "creativity" to be recognized, when imitating an existing work, it is sufficient that some of the author's individuality is expressed, except in cases where the expression is unavoidable or commonplace.
In this case, the tweet was found to be creative.
In this case, the creativity of the flyer's expressions and their combination was denied.
What is "expressed"?
In order for something to be considered an "expression" under copyright law, it is necessary that the author's thoughts or feelings are expressed in a form that can be recognized externally.
From this, it is interpreted that an idea in itself, separate from concrete expression, cannot be protected as a work of authorship.
For example, let's say a painter creates an original painting technique and uses it to create a painting.
In this case, the painting is a concrete expression and therefore protected as a work of authorship, but the painting technique is merely an idea and therefore cannot be protected as a work of authorship in itself.
This way of thinking is known in academic circles as the "expression/idea dichotomy" and is the commonly understood theory today.
Interpretation of the "expression" requirement
In order for "creativity" to be recognized, when imitating an existing work, it is sufficient that some of the author's individuality is expressed, except in cases where the expression is unavoidable or commonplace.
Can the common parts between games be considered "copyrightable material"?
When copyright infringement of a game is disputed, due to the nature of the game,
- A dispute centered on images that appear when playing the game
- A battle over the source code that runs the game
It can be broadly divided into two types.
Common parts related to smartphone game configuration, functions, screen layout, etc.
First, let's look at what decisions were made regarding the smartphone game's structure, functions, screen layout, and other aspects that come up when playing the game.
In particular,
① Basic structure of smartphone games
② Character design for smartphone games
3) Screen composition and screen transitions for smartphone games
Assuming that there are commonalities between the plaintiff's game and the defendant's game, the main issue at issue was whether these points could be recognized as "copyrightable works."
① Basic structure of smartphone games
The plaintiff's game and the defendant's game have something in common in that they are both idle RPG games that turn historical military commanders into beautiful girls and allow players to strengthen and develop their characters' stats and equipment to suit their preferences.
However, the court ruled that these common points were merely ideas, and therefore did not qualify as "copyrightable works," as they were merely game systems and functions.
② Character design for smartphone games
The plaintiff's game and the defendant's game have in common that they both consist of characters designated as a "captain" and a "vice captain."
Other similarities include the fact that the "captain" profession can be selected from three types at the start of the game, and that female characters based on historical figures appear as "vice commanders" who can be used when certain conditions are met.
However, the court ruled that these common points, like those in ① above, are merely ideas and game systems and functions, and therefore do not qualify as "copyrightable works."
3) Screen composition and transitions in smartphone games
Both the plaintiff's game and the defendant's game are composed of main screens such as "Home," "Battlefield," "Camp," "Warehouse," "Chat," and "Alliance," and they also have in common the fact that the home screen has buttons such as "Competition," "Shop/Store," "Casting," "Mission," "Benefits," and "Charge" that allow users to transition to other screens.
(It's hard to tell just from the text, but if you do an image search of the plaintiff's game and the defendant's game, you'll see that some of the screens are quite similar.)
However, the court ruled that these common points do not qualify as "copyrightable works" because none of them are creative (or are merely ideas).
Common parts related to smartphone game programs (source code)
Next, let's look at what decisions were made about the common parts of the source code that run the games.
In terms of common parts, the Plaintiff's game consists of approximately 500 program files, and it has been recognized that the source code of the files describing functions such as switching specific screens largely matches the source code in the Defendant's game.
The evidence showed a similarity of 90.66%, suggesting they were nearly identical.
However, the court ruled that these common points were merely programs that mechanically execute routine processes, such as switching screens when a button is pressed, and therefore, as such, were routine and commonplace and therefore did not qualify as "creative."
Summary
As mentioned above, in this trial, the commonalities between the plaintiff's game and the defendant's game were as follows:Since neither of these works are recognized as "copyrightable works," there is no copyright infringement.It was determined that
Although the judgment circumstanced, it was also noted through evidence that the defendant's game used the same error messages and contained the same bugs as the plaintiff's game, and that the names of the plaintiff's game developers were still in the defendant's source code.
However, courts have consistently stated that as long as the commonality remains without an idea or creativity, it cannot amount to copyright infringement.
However, in many cases it is not clear what constitutes an idea or lack of creativity.
It may seem similar to other people's work, but it also feels like it's inevitable that it will be similar, and I think there are many times when you feel anxious or worried about what the reality is.
In such cases, we recommend that you consult with an expert on copyright issues.
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