Idea v. Expression: Game Studio Bluehole Gets Its Fur Up Over Epic Games Putting 100 Vs. 100 Player Battle Royale Into Game

from the needless-anger dept

Thu, Sep 28th 2017 3:40pm — Timothy Geigner

Of all the things that most people get wrong about copyright law, the idea/expression dichotomy has to rank near the top. The confusion over this is easily explained by the pervasive ownership culture that has emerged organically from an intellectual property ecosystem that only moves in the direction of more protectionism. Because of that culture, most people simply assume that the creation of the idea is itself a copyrightable thing, rather than the reality which is that copyright only applies to specific expression. The useful example at hand is that one cannot copyright a superhero named after an animal that wears a mask and a cape, but one can copyright Batman, particularly any books, comics, or movies in which Batman is depicted.

As already stated, this reality evades many people. But it probably shouldn't evade those in industries dominated by copyright, such as the video game industry. Despite that, Bluehole, developers of the wildly popular PlayerUnknown's Battlegrounds developer, appears to have its fur up over another studio, Epic Games, releasing a "battle royale" game mode for its Fortnite title.

In a press release this morning, PlayerUnknown's Battlegrounds developer Bluehole took a shot at Epic Games, calling out Fortnite for cloning the 100-man PVP gameplay style with its upcoming free update ‘Battle Royale.’

“We’ve had an ongoing relationship with Epic Games throughout PUBG’s development as they are the creators of [Unreal Engine 4], the engine we licensed for the game,” Bluehole vice president Chang Han Kim said in the press release. “After listening to the growing feedback from our community and reviewing the gameplay for ourselves, we are concerned that Fortnite may be replicating the experience for which PUBG is known.”

This is a game studio getting upset over what is purely an idea, not an expression. Having 100 players face off against another 100 players in a game mode is not expression and is no more unique than, say, first-person shooter games, itself a genre with innumerable entrants. Bluehole goes on to note that it is going to "contemplate further action", but whatever that action would be would not include a successful legal action against Epic Games. There is simply nothing remotely like copyright infringement here.

Strangely, Bluehole also makes much of its claim that Epic Games referenced PlayerUnknown Battlegrounds to promote Fortnite, which sort of sounds like trademark law territory. The problem, both from a legal standpoint and from a public relations standpoint, is that this claim appears to amount to Epic Games applauding Bluehole on the Playstation Blog.

This may be a reference to Epic creative director Donald Mustard’s note on the PlayStation Blog, in which he wrote: “We love Battle Royale games like PUBG and thought Fortnite would make a great foundation for our own version.”

But that's neither trademark infringement nor evidence for copyright infringement. Even as Epic gives a full-throated acknowledgement that it is seeking to emulate a game mode from Bluehole's game, it's just a game mode, not a specific expression. That simply isn't copyright infringement, any more so than someone saying, "Doom was great, so now I want to make a first-person shooter game like it."

Idea/expression dichotomy: learn it, folks. It will keep you from paying lawyers to lose a case for you.

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Filed Under: battle royale, copyright, expression, fortnite, idea, playerunkown's battlegrounds, video games
Companies: bluehole, epic games

48 Comments

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Paul Brinker, 28 Sep 2017 @ 4:17pm

Say it with me
Say it with me... You can copyright game rules and assets, you cant copyright a game.

If Doom copyrighted the FPS game we would never have the breath of games we have today.
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Anonymous Coward, 28 Sep 2017 @ 4:24pm

Re: Say it with me
You can copyright game assets,

You cannot copyright rules. read, the MUTHAFUCKING ARTICLE!

FPS, RTS, 100 vs 100 are nothing but a part of the "rules" of how the game plays.
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Pixelation, 28 Sep 2017 @ 4:45pm

Bluehole turning brown.
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Paul Brinker, 28 Sep 2017 @ 4:46pm

Re: Re: Say it with me
Its just a saying from board games. The rules in this case is the physical rule book. In a game that would be the source code.
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Roger Strong (profile), 28 Sep 2017 @ 4:47pm

Having 100 players face off against another 100 players in a game mode is not expression...

It's not even so much an idea as an indication of current technology.

Home computers with GUIs showed up from multiple companies at the same time because the processors and other chips necessary matured and became affordable at the same for all of them. Internet-connected games showed up from multiple companies as everyone got internet connections.

And now with high-speed internet and the advent of cloud server farms handling much of the processing, hundred-user game become possible for everyone at once.
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Roger Strong (profile), 28 Sep 2017 @ 4:55pm

Re: Re: Re: Say it with me
And...? No-one can copyright the *concept* of boards games, just like no-one can copyright the concept of first person shooters. (Especially since FPS games had been evolving for 20 years before Doom.)
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Anonymous Coward, 28 Sep 2017 @ 5:01pm

Re: Re: Re: Say it with me
Still a negative. There are tones of board games with the same rules. You just cannot copy the board itself or its imagery or core story elements.

Heck in most cases you almost rip something off so long as enough has been changed to ensure that consumers can recognize it as a separate product from another.

Derivative works are also protected by fair use laws. Sure you still take a risk by doing so because the lawsuit alone could be enough to sink your business, not to mention the possibility of a judge existing with the same limited knowledge you display or worse!
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Manabi (profile), 28 Sep 2017 @ 5:09pm

It's actually not about copyright or trademark
More info came out a few days later, it's not about the game mode, it's because Epic Games also provides the game engine for PUBG.

But there’s another issue that’s potentially at the heart of this conflict: Bluehole’s fear that Epic could be making engine improvements that benefit Fortnite which won’t be shared with the PUBG team. Seeing as the two companies are now competitions, this could be a problem.

“We’re going to get some technical support [from Epic], and we’re going to work with them to make sure Unreal Engine better supports battle royale gameplay which requires 100 people in one session, and now we’re starting to have concerns that they’re going to develop new features or improve something in the engine to support that battle royale gameplay, and then use it for their own game mode,” the executive elaborated.

The other side of this is that any improvements made by Bluehole internally to Unreal Engine 4 could leak out, benefiting other studios. Bluehole is also not happy with Fortnite using the PUBG name in promo material, with Epic developers citing PUBG as inspiration for Fortnite’s mode.

“It was in their promotional video that was posted on Twitter and they would openly mention that they were fans of PUBG, we wanted to make this battle royale game mode, and that kind of gave the impression that we were officially involved in this,” he added. “[Sic] there were players like, ‘Oh it’s cool, now we get to play PUBG in Fortnite’, and there was nothing we could do about it, because it was depicted that we were officially involved.”

Bluehole's main concern seems to be that Epic is going to screw them over with the game engine now. And their secondary concern is that they felt like Epic was making it seem that that Bluehole was officially involved in Epic's battle royale mode in Fortnight.
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DiscontentedMajority (profile), 28 Sep 2017 @ 5:11pm

This is especially weird considering that PUBG is not the first entrant to this category of games. They in fact rode in on the coat tails of the success of H1Z1 Battle Royal, taking a portion of H1Z1s player base when they released.
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Anon E Mouse, 28 Sep 2017 @ 5:13pm

Title's slightly misleading
"100 Vs. 100" in the title is not accurate. It's 100 players divided into teams of up to four, with all teams or even all players facing off against each other. No 100 + another 100 matchups.
That's kind of what the whole Battle Royale thing implies, too. There's just one winner, not a winning "side". Comes from a novel and a movie of the same name, where a bunch of kids are dropped on an island and told to kill each other until only one survivor remains.

I'd like to see large-scale 100 on 100 battles, but these are not the games for that.
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bob, 28 Sep 2017 @ 5:28pm

Re:
Just what I was thinking.
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bob, 28 Sep 2017 @ 5:32pm

Re: Title's slightly misleading
Yeah saw that Korean movie. Seeing children fighting was sickening. But I like how the movie at least tried to show a level society might sink to in the future.
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bob, 28 Sep 2017 @ 5:33pm

Re: It's actually not about copyright or trademark
If that's the case then why did they highlight so much the copyright angle?
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Anonymous Coward, 28 Sep 2017 @ 5:36pm

Re: It's actually not about copyright or trademark
Still changes nothing! Bluehole's improvements to the engine are likely property of Epic at the end of the day either way. Just about every company would stipulate that any improvements made to their code when they give you source access is still owned by them.

So in a sense, Bluehole WAS/IS officially involved, just not in the capacity they wished it to be perceived by the general public. Just like every other developer using their game engine is officially involved with EPIC.
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orbitalinsertion (profile), 28 Sep 2017 @ 5:58pm

Re: Re: It's actually not about copyright or trademark
Who was it who highlighted a copyright angle?
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orbitalinsertion (profile), 28 Sep 2017 @ 6:04pm

Seems more like their statements boil down to, "Thanks for being dicks, guys". Smells kind of like OS/2, if what they think may be happening is accurate.
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Stephen T. Stone (profile), 28 Sep 2017 @ 6:05pm

Re: Title's slightly misleading
While the entymology of the term remains a little unclear—it may or may not have originated within the world of cockfighting—the first citation of the phrase “battle royal” comes from 17th century play All Mistaken, or the Mad Couple. The “royal” (or “royale”) part of the phrase acts as an intensifier; as a whole, the phrase typically means “a battle fit for a king”. Most people today would know the phrase from either the novel/film “Battle Royale” or the “battle royal” match type found in professional wrestling.
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Anonymous Coward, 28 Sep 2017 @ 6:09pm

Bluehole?
think we just found out_of_the_blue
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Anon E Mouse, 28 Sep 2017 @ 6:11pm

Re: Re: Title's slightly misleading
I stand corrected. Thank you.
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Anonymous Coward, 28 Sep 2017 @ 6:25pm

Re: Re: Title's slightly misleading
entymology is a typo and sounds to much like entomology, the study of insects.

etymology is the word to look for in regards to the study of a words origin and meaning.

I am not knocking that you made a typo, just clarifying in case another reader happens by and becomes confused.
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Anonymous Coward, 28 Sep 2017 @ 6:27pm

Re: It's actually not about copyright or trademark
The first concern is baseless speculation.

The second concern is totally inaccurate.

And both concerns were not mentioned at all in the initial blustering.
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Anonymous Coward, 28 Sep 2017 @ 6:31pm

Re:
Umm, you might want to look into the history a bit more.
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Ryunosuke (profile), 28 Sep 2017 @ 6:45pm

Meanwhile....
EVE Online still holds the record with 7800 people, 2800 concurrently.
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crade (profile), 28 Sep 2017 @ 7:08pm

"The useful example at hand is that one cannot copyright a superhero named after an animal that wears a mask and a cape, but one can copyright Batman, particularly any books, comics, or movies in which Batman is depicted."

Bad example. "Batman" is an idea expressed in many, many different ways. Although they decided character concepts are copyrightable, they threw the idea vs expression rule out the window to do so.
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kallethen, 28 Sep 2017 @ 7:13pm

Re: Re: Re: It's actually not about copyright or trademark
While the game engine is part of the conflict, Bluehole definitely highlighted a copyright angle first.
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Stephen T. Stone (profile), 28 Sep 2017 @ 9:29pm

Re: Re: Re: Title's slightly misleading
Hey, I appreciate the correction. It means I have another word that I can slap into PhraseExpress for future-proofing against further such typos. (Seriously, "pseudo" is such a hard word to remember the exact spelling for!)
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mhajicek (profile), 28 Sep 2017 @ 9:53pm

Re:
Even if it were, there's an easy work around. Put 101 players on a side.
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Stephen T. Stone (profile), 28 Sep 2017 @ 11:10pm

Re:
Neither the idea of an animal-themed costumed superhero nor the idea of a man-bat (i.e., an anthropomorphic male bat, or a “bat-man”) could ever be copyrighted. They are generic concepts. The Batman of DC Comics fame, however, is copyrighted because he is a specific expression of a specific idea. Whether Marvel Comics could publish a story containing a man-bat that is literally called “a bat-man” within the story, however, is a matter for the trademark lawyers.
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Beech, 29 Sep 2017 @ 2:07am

Re: Re: Re: Re: It's actually not about copyright or trademark
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Beech, 29 Sep 2017 @ 2:25am

Re: Re: Re: Re: It's actually not about copyright or trademark
Read the linked article. It doesn't mention copyright at all. The initial article reads more to me like this game company had learned that a much larger competitor is moving into their niche and they aren't happy about it. They aren't saying they're getting ripped off, and this is unfair etc. They're saying they've worked closely with Epic and feel a bit betrayed that Epic decided to release a product that is so similar to theirs.

They also don't like that Epic is using the old "If you liked X try Y" marketing strategy "against" them. Which again, as just about every bag of generic cereal in the supermarket can attest, Epic is allowed to. But using it to hone in on a small-time competitor is kind of a dick move.

This is the Zynga situation all over again. If you don't recall, Zynga went around and found promising games on Facebook then released near clones that were just slightly different enough to not infringe any copyrights, since game concepts aren't copyrightable but specific art elements are. People were pissed that their games were getting copied so quickly by professionals, but there's NOTHING they could do. It's scummy, and it really is unfortunate for small time facebook app creators, but it's legal.

Overall I think the journalistic integrity of this article is much lower than the standard usually set by Techdirt. Not only did he get the number of players in a game wrong (up to 20 five-man teams, not 100 v 100 teamfight) but this article is clearly misleading people into thinking that Bluehole is getting all copyright-lawsuit-threateny when that is not the connotation of the linked article at all. They are just upset that a company they've been working closely with is going to be stealing their market share. TOTALLY LEGAL, but understandable.
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Jeremy2020 (profile), 29 Sep 2017 @ 5:02am

Re: It's actually not about copyright or trademark
which is still not copyright or trademark...thinking someone is going to screw you over isn't either of those things.

Also, saying that you're inspired by something does not make it seem like that thing is involved in your version.

This is just a silly case of hurt feelings.
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aethercowboy (profile), 29 Sep 2017 @ 5:55am

The Hand Drawing the Hand Drawing the Hand...
Aren't these both basically adaptations of Suzanne Collins' *The Hunger Games*? Of course, that was basically an Americanized version of Koushun Takami's *Battle Royale*, which we all know is basically Stephen King's *The Running Man*, only set in Japan. Which, of course, is William Golding's *Lord of the Flies*, but as a reality TV show. Of course, *that* was a satirical response to R. M. Ballantyne's *The Coral Island*, which is itself based on the themes of Daniel Defoe's *Robinson Crusoe.*
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Anonymous Coward, 29 Sep 2017 @ 6:19am

Re: The Hand Drawing the Hand Drawing the Hand...
Everything is a copy of a copy of a copy...
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Anonymous Coward, 29 Sep 2017 @ 6:21am

Re: Re: It's actually not about copyright or trademark
butt hurt feelings.... the worst kind!
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Anonymous Coward, 29 Sep 2017 @ 6:27am

Re: Re: Re: Re: Title's slightly misleading
You are welcome sir, I make typo's all the time myself.
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crade (profile), 29 Sep 2017 @ 6:39am

Re: Re:
In copyright legal verbage, ideas are supposed to become expressions when they are fixed into a tangible medium (ie when the idea is implemented). Your comic book is a copyrightable work that includes a specific implementation of your character (that implementation is also covered by your copyright on your comic).

If you look at how the law was worded an "Expression" was obviously intended to be something you can actually physically copy. You can't make a copy of a character because it's just an idea A template that you can use to make new works with.
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Stephen T. Stone (profile), 29 Sep 2017 @ 6:50am

Re: The Hand Drawing the Hand Drawing the Hand...

Aren't these both basically adaptations of Suzanne Collins' “The Hunger Games”?

Not really, no. Neither the battle royale mode of Fortnite nor PlayerUnknown’s Battlegrounds contain any kind of actual story or justification. (PUBG players have no problem with this; they generally do not care about the reason why 100 people are fighting each other to the death on a secluded island somewhere off the coast of Russia.) You could, however, argue that the Hunger Games franchise at least inspired the creation of PUBG and H1Z1.
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bob, 29 Sep 2017 @ 9:37am

Re: Re: Re: Re: Re: It's actually not about copyright or trademark
I agree the writing quality of this article is lower than normal. That's why I thought it was about bluehole complaining about copyright infringement.
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bob, 29 Sep 2017 @ 9:39am

Re: Re: Re: It's actually not about copyright or trademark
Wait is that blue hurt feelings or hole hurt feelings?
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JoeCool (profile), 29 Sep 2017 @ 10:12am

Re:

It's not even so much an idea as an indication of current technology.

QFT. My last computer wouldn't handle 5 vs 5 players. My current computer might handle maybe 10 vs 10 to 20 vs 20, depending on how much load each player adds. 100 vs 100 requires a GOOD new computer, but you can actually do it now whereas it would have been nigh-on impossible 10 years ago... possibly 5 years ago.
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Anonymous Coward, 29 Sep 2017 @ 10:27am

Re: Re: Re: Re: Say it with me
You can't copyright concepts/rules... based on our current understanding of the law. That doesn't mean courts won't make something up, like with Aereo. (Except that Bluehole doesn't have enough "lobbying" money to make that happen.)
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Anonymous Coward, 29 Sep 2017 @ 10:33am

Re:
PUBG is not the first entrant.

But PlayerUnknown was the first creator (or, at the very least first successful developer for the genre). He made the DayZ: Battle Royal mod for ARMA, then consulted on the H1Z1: Battle Royal mod. Then made PUBG as a standalone.
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aethercowboy (profile), 29 Sep 2017 @ 11:29am

Re: Re: The Hand Drawing the Hand Drawing the Hand...
Well, yeah. I didn't mean adaptation in the sense of something that would require lawyers. Inspired is more appropriate. Nevertheless, the point is the same: if we're going to argue "theft of ideas", we need to follow this to its logical conclusion. I suppose instead of going to Más a Tierra, we could instead take it to the Colosseum, but that's an exercise left to the reader.
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Ninja (profile), 29 Sep 2017 @ 12:11pm

"Idea/expression dichotomy: learn it, folks. It will keep you from paying lawyers to lose a case for you. "

I should have attended law school.
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Jeffrey Nonken (profile), 29 Sep 2017 @ 12:41pm

Like Flying Fox Man.

http://superredundant.com/?comic=126-the-jinx

Not based on any copyrighted superhero that I'm aware of. :)
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Bergman (profile), 29 Sep 2017 @ 8:46pm

Re: Re: Say it with me
You can, however, PATENT game rules. The trick though is coming up with a rule-set that is sufficiently new and never before seen that it could qualify for a patent.
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Bergman (profile), 29 Sep 2017 @ 8:47pm

Re:
Even then, Planetside/Planetside 2 does it MUCH better.
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Anonymous Coward, 30 Sep 2017 @ 3:58pm

Except, Fortnite: BR is garbage. It doesn't have a tenth of the depth PUBG has, and PUBG has about as much depth as a kiddie pool.

I don't think that's Epic trying to enter the battleroyale genre. It feels more like offering a F2P entry point into their Fortnite franchise via a currently hyped game mode and hoping some players convert to paid customers for the tower defence mode. If they were serious about making a battleroyale game, they can just dust off UT2004 and give it the HD treatment. And I would pay good money for a UT2004-based battleroyale.
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