Chasing trends in circles: from Fortnight to K.C. Munchkin

totally not PAC-MAN 

Fortnight has taken the world by storm. With millions of players across every imaginable platform the game has been a massive success. But, now the Fortnight developer Epic is being sued by Player Unknown Battle Ground (PUBG) for copyright violations. The crux of the lawsuit (which is being brought in South Kora) is that Fortnight stole the 100 players, battle royal last person/team standing wins, mode from PUBG. Both games do feature 100 players airdropping onto an island that has weapons scattered about with the goal being to collect weapons, kill other players, and survive until the end.

Taking ideas or inspiration from previous titles is nothing new to the game's industry. Developers have been "borrowing" ideas from one another since the very beginning. Chasing after trends can make you a lot of money, but when a developer crosses the line they risk being sued. This is exactly what happened in the case of Philips Entertainment’s classic title K. C. Munchkin.

What's that? You've never heard of K. C. Munchkin? Well, the game featured a circular figure gobbling up pellets in a maze while avoid ghost like characters and picking up temporary power ups in order to get a high score. That description might sound familiar because it's PAC-MAN, it's literately just PAC-MAN. Thus began the Atari, Inc. v. N. Am. Philips Consumer Elecs., lawsuit. Where a Federal Judge appoint for life, by the President of the United States, sworn to uphold the Constitution had to use the word "gobbler" 42 time in one written opinion.

But how can you even tell when one video game has "stolen" from another in the absence of copy and pasting assets? Essentially what Courts in the United States do it compare the copyrighted work to the accused infringing work and determine if an ordinary observe would find them to be substantially similar. The idea being that an ordinary reasonable person would conclude that the alleged offender unlawfully appropriated the creator's protectable expression by taking material of substance and value without changing it in a meaningful way. Just as in the current PUBG v. Fortnight drama there was no accusation that something was directly copied, but instead that the style and format was impermissibly copied. This makes for a tricky situation because you can't really have a copyright on something as amorphous as style, but Courts have created an idea-expression test where they attempt to determine when a new work goes beyond copying an idea and has moved into stealing a protected form of expression. This is not unique to video games (there are hundreds of cases with movies and books) and deals with the core issues of what is within the scope of copyright protection.

In the PAC-MAN case the Court found that certain expressive matter in PAC-MAN, should receive protection only from virtually identical copying. The maze and scoring table are standard game devices, and the tunnel exits are nothing more than the commonly used "wrap around" concept found in many games featuring mazes. Similarly, the use of dots provides a means by which a player's performance can be gauged and rewarded with the appropriate number of points, and by which to inform the player of his or her progress. 

The Court also found that the gobbler character's similarity to PAC-MAN, and the monster’s similarity to the ghosts in PAC-MAN were similar enough to constitute copyright infringement (also they used the phrase PAC-MAN game in their marketing, whoops). The Court also found that Philips Electronics had intentionally copied PAC-MAN and only made superficial changes to the player controlled gobbler. So basically, the Court said that he maze-like gameplay where players ran from ghosts and collected dots was not protected, but the likeness of PAC-MAN and the ghosts themselves were.

Applying the PAC-MAN logic to the PUBG v. Fortnight lawsuit it appears to me that Fortnight only borrowed ideas and has enough substantial differences that it does not run afoul of any U.S. copyright laws (although, again, the case is in Korea). Particularly the aesthetic style in Fortnight and the building mechanics fundamentally set the two games apart in my mind. Also there was no attempt by Fortnight to appropriate any specific assets from PUBG (like having a character or weapon that looks very similar or that was designed to look similar). Protecting the format of a game doesn't seem appropriate to me as it would stifle development within that genre. Imagine if the original first-person shooter or real time strategy games stopped all other from creating in that genre.

Side Note: I did some research on copyright law in the Republic of Korea and it was actually based on the U.S copyright laws. Apparently the Korean Courts apply their rules in a very similar manner to U.S Courts, some observers have commented that Kora is more aggressive than other modern nations in pursing copyright claims and is more protective of the rights of the original creators.

See Copyright Law in the Republic of Korea, Youm, Kyu Ho, https://escholarship.org/uc/item/8b9199zm