Shulou(Shulou.com)11/24 Report--

This article comes from the official account of Wechat: ID:chuappgame, author: Zhu Siqi

The protection of the originality of game works is still a road of continuous exploration and progress.

For a long time, "skin-changing game" is just a metaphor spread in the game industry and among the player group. This term usually refers to some core games that are too similar to listed works, only games that are put on the shelves after changes have been made to art, text, or some minor games.

But if you only rely on the feelings of practitioners and players to identify a game as "skin change", or more bluntly "plagiarism", there is indeed the possibility of accidental injury. There are also some vague claims out there, such as the law of playing games is not protected by law; for example, even if it looks similar in general, but the details are different, it does not constitute plagiarism in the legal sense. These seemingly "exempt" situations seem to cast a haze in the hearts of creators who want to protect their rights.

In order to find out these seemingly vague boundaries and standards, we'd better look for answers from past actual cases. In June 2023, the case of "Universal Awakening" v. "Commander" concerning copyright infringement and unfair competition was decided at the Shenzhen Intermediate people's Court of first instance. The verdict found that the "Commander" constituted an infringement of "skin plagiarism" of the "Universal Awakening" and demanded 10 million compensation and an apology from the "Commander".

The term "skin plagiarism" appears in formal legal documents and seems to convey a signal that the protection of the rights and interests of creators in the game field is gradually improving and strengthening. In order to further understand these details, Toule collected some typical cases in recent years, and invited lawyer Zhang Cuiping of Beijing Huacheng Law firm to answer some detailed questions for us.

Copyright infringement or unfair competition? When it comes to plagiarism, the most intuitive and easy to judge in people's minds may be the art design on the surface of the game and the approximation of copywriting.

These disputes can be traced back to the MT case in 2015. At that time, my name is MT, a mobile game adapted from Blizzard games and derived animation products, was very popular and attracted some other teams to emulate. Among them, there is a game called "Super MT", in which the characters are small T, silly, mean and small, which makes it easy for players to think of the sad snot, stupid thief, bad person and fool in "my name is MT".

These characters not only have similar names, but also use similar appearance elements in image design. The problem is that, on closer inspection, the role of "Super MT" is different from "my name is MT" in terms of color matching, clothing details, and so on.

The main characters of the two "MT" games are similar at first glance, but they are not the same. both the players and the original right holders of these names and images think that "Super MT" infringes on the copyright of "I am MT". However, in the legal sense, after comparing the elements, the two do not constitute the same or substantial similarity because the details and colors of specific characters, clothing, weapons and colors are different, so they do not constitute infringement in the sense of copyright law.

The more recent case of "my World" v. "Mini World" was ruled by the court not to constitute infringement because of the differences in picture style and box design.

It can be seen that when many people think of "plagiarism", what they immediately seek is the protection of copyright law. However, the scope of copyright law is not as extensive as people think.

Lawyer Zhang Cuiping further explained this: within the framework of copyright law, the so-called "work" refers to intellectual achievements that are original and can be copied or reproduced in some tangible form in the fields of literature, art and science. The term "originality" here refers to the specific expression of the work, not the originality of the ideas or ideas of the work. Therefore, the copyright law aims to protect the original expression of the author's thought, not the idea itself.

In the MT case, the court held that "my name is." This expression is the existing way of expression, and "MT" also belongs to the common letter combination, therefore, "my name is MT" as a whole belongs to the existing common expression and is not original. As for the names of the five characters, "sad wooden tears", "stupid people", "bad people", "stupid thieves" and "god stick virtue", if the public does not know the plaintiff's game, but only sees the above-mentioned names, they may not be able to understand their meaning. Therefore, these names do not express relatively complete ideas and do not realize the basic functions of written works. At the same time, the five characters in the plaintiff's game were born from the anime image of Blizzard IP. After stripping the original animation image, the original weapons and clothing are quite different from the corresponding weapons and clothing in the defendant's game, and do not constitute a substantial approximation.

But this does not mean that plagiarists can boldly copy art designs and have nothing to worry about as long as they change a few details. The "MT case" and the later "my World" v. "Mini World" case all adopted the punishment method of unfair competition on the premise of judging that the copyright such as picture style and art design had not been infringed.

Although the square outline is used, Mini World is not judged as the basis for judging unfair competition in copyright infringement because of the great difference between the specific painting style and "my World". Because of the similarity between the name and the whole, when the relevant public sees the mobile game called "Super MT" and the corresponding publicity, it is easy to misunderstand. Mistakenly think that the game released by the defendant is a derivative of the plaintiff's game or has some specific connection with the plaintiff's game. This possibility of public confusion and misunderstanding of the content means that the defendant's behavior has an obvious "free rider" intention and can constitute unfair competition. The case of "my World" v. "Mini World", which was ultimately determined to be unfair competition rather than copyright infringement, is based on the same logic.

Under certain conditions, the Anti-unfair Competition Law can be regarded as the background of the copyright Law, which is helpful to comprehensively judge the disputes and disputes involved in the game works.

Under "play Protection", another popular saying about the subdivision of expression is that the way games are played is not protected by law. In actual cases, similar claims are not uncommon. Some games accused of infringement will use the plaintiff's game to "learn" from the play of a classic game to refute its originality. For example, in the case of plagiarism in lead Earth Bank v. the three Kingdoms Strategic Edition, the three Kingdoms Strategy Edition believes that the play of lead Earth Coast follows 66 similar SLG games and lacks originality, so it does not constitute infringement.

As we all know, every kind of play has its own ancestor, which can be traced back to some very ancient design. This is true for SLG, Galactic-like Alcatraz and so on. So, what is normal iteration and derivation and what is plagiarism? in the actual case, it is necessary to further define the composition of game structure, system system, numerical planning and corresponding relationship.

Lawyer Zhang Cuiping explained that at the legal level, those abstract conceptual rules of play, such as the basic playing of poker and the three-way push tower 5V5 mode of MOBA games, are generally not protected by copyright law. This is because these rules belong to the category of thought, public knowledge or universal concepts and should not be regarded as the original content of a particular game work.

However, once an abstract idea is transformed into a concrete expression, the situation changes. Therefore, the key to whether a certain game is protected is to determine whether these elements belong to unprotected abstract ideas or to protected "concrete expressions of ideas".

The judgment of the originality of play requires a very meticulous comparison. Take the case of "lead the Coast of the Earth", which was exemplified earlier, for example, the court did not accept the plea of the "Strategic Edition of the three Kingdoms", but held that, although it is all based on the design of SLG play, there is a big difference in the connection mechanism between the specific design and rules of the 66 similar SLG games before. Especially in the aspects of resource system, general system, tactical system, alliance system, season system and so on, it embodies the originality of the design. Under certain conditions, the combination of these original rules can bring players a different game experience from the previous SLG works. Therefore, the court held that "most of the 106 rules of the game involved in the case and the game mechanism formed belong to the original expression in the sense of production law". On the other hand, the Strategic Edition of the Chronicles of the three Kingdoms is similar to the "leading the shore of the land" in these original systems, which brings similar game experience to players, so it constitutes infringement.

This is also clearly described in the case of "Universal Awakening" v. "Commander". The judgment document reads: "to distinguish whether the corresponding rules of play in the game belong to ideas or expressions, we should see whether these rules of play are general, basic, abstract descriptions, or specific enough to produce a unique game experience that perceives a particular work. The key point of the judgment of thought and expression should be whether the object has enough space for creative expression, and to form a fully described structure through trade-off, design arrangement and other creation among the many possibilities of expression. If this design is specific and detailed enough, especially to form a fully described architecture, it should be considered to constitute an original expression and protected by copyright law. "

Another noteworthy thing is that in the case of "Universal Awakening" v. "Commander", the term "skin plagiarism" was directly used in the judgment. Lawyer Zhang Cuiping believes that this term makes sense. The concept of "skin-for-skin plagiarism" may provide a clearer criterion for the courts to identify acts that have been ostensibly fine-tuned but are still plagiarizing the original in essence. In dealing with similar situations in the future, the court may make reference to the logic and standards of past judgments. Strict censorship and sanctions on "skin-changing plagiarism" will prompt game developers to pay more attention to originality and avoid simply copying the works of others.

Similar codes may increase the number of criminal cases and the above tort cases fall within the scope of civil litigation. The most common discrimination method in the judgment is mainly through the comparison of the screen, system, copywriting and other elements one by one, and will not involve the comparison of the source code. It is also difficult for both parties involved to obtain each other's source code.

Generally speaking, at the civil level, if there is an unauthorized copy of the source code, such as through reverse push, unpacking and other ways to obtain or write similar code, it may constitute copyright infringement. However, considering that the source code generally belongs to the trade secrets of games and software companies, copying the source code may also be suspected of intentional theft, illegal acquisition or use of trade secrets, which is likely to rise to the criminal level. In this case, the informant can apply for the intervention of the public security organ and ask the other party to submit the source code for comparison.

Similar cases are often reported in the press. A typical example of a large amount of money involved occurred in June 2023. Three former employees of a mobile game company in Shanghai stole the source code of a game from the company and went online after "changing the skin", making a profit of 150 million yuan. After the company discovered and reported to the police, the police hired a professional electronic data forensic institute to compare the similarity of the two games and determined that the server data and part of the code of the two games were highly overlapped and there were substantial similarities.

Finally, the operator of the "skin swap" game was suspected of copyright infringement, and three former employees were taken criminal compulsory measures in accordance with the law on suspicion of illegally obtaining computer information system data.

The conclusion can be seen from various cases that the protection of the originality of game works is still a road of continuous exploration and progress. Because the game is a comprehensive intellectual achievement composed of audio-visual elements and rule system, it is more complex than traditional literature and art forms. Although players and developers can believe that some aspects of some works are suspected of plagiarism and skinning from a simple point of view, it may not necessarily constitute infringement in the legal sense only from the perspective of the copyright Law. If we want to really protect the rights and interests of creators, we should comprehensively apply the "Anti-improper Competition Law" and other relevant laws and regulations. From the perspective of a number of existing cases, the law pays more and more attention to and perfect the protection of game originality.

"skin-for-skin plagiarism" is now more than just folk language, but in several cases, even if the game is found to be infringing or unfair competition, the court did not support the plaintiff's demand that the defendant stop operating. This is actually for the sake of protecting the rights and interests of other interested parties and encouraging creation.

For example, even if Mini World is convicted of unfair competition, there is a lot of player-generated UGC content in the game. These contents should also be protected by law. Therefore, the court chose to order developers to compensate for the economic losses of the plaintiff, stop unfair competition, and continuously reduce the proportion of suspected unfair competition through version iteration.

And the "Strategic Edition of the three Kingdoms" has not been ordered to stop operation. Because the court held that "standing on the shoulders of predecessors to imitate and learn from the achievements of previous experience is not only a necessary process of creation in the fields of literature, art and science, but also an inevitable stage of development and innovation." An order to "stop operation" may hinder the creation and birth of new works.

There is a delicate balance. What game developers can learn from the successes of their predecessors and what to create on this basis is something worth thinking about in an environment that pays more and more attention to originality. In different future, with more and more precedents, it may be easier for people to resort to the law and protect their rights and interests.

On this basis, if game developers and publishers fully understand and consider the information about intellectual property rights and avoid potential risks when releasing new games, it will probably play a more positive role for themselves and the industry.

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