Copyright Is Infringed If the Rule of the Game/Style of Expression Is Similar (Korea Supreme Court, Case No. 2017Da212095, decided on July 1, 2019)

1. Summary of the Decision

 

The first Supreme Court decision came out which held that, in determining creativity of a game, it is necessary to weigh not only the creativity of each component, but also whether the game has creativity in creative intent, scenarios, etc., which is distinguishable from other games as a whole. This is the first decision which specifically provides a standard for determining creativity in a copyright infringement lawsuit for a mobile game.

The Supreme Court found that “the plaintiff’s game has creative individuality so that it can be subject to copyright protection” and held that, “as the defendant’s game includes creative format of expression in accordance with selection, arrangement, and organic combination of major components which technically implemented the plaintiff’s creative intent and scenarios, both games can be viewed as substantially similar.”

 

2. Background Information

 

(1) In April, 2013, King.com launched Farm Heroes Saga, which enjoyed huge popularity. Then, in January, 2014, Avocado Entertainment launched Forest Mania, which is similar to Farm Heroes Saga. King.com initiated a lawsuit in 2015 claiming that Forest Mania copied their Farm Heroes Saga.

Both games are of the type in which players align three tiles of the same shape to make them disappear and obtain scores corresponding to the number of tiles that disappear. King.com claimed that “combination of rules of the game, the step of introducing new rules, and the visual design of the game, etc. fall under the works protected by copyright law” and that Forest Mania copied Farm Heroes Saga as is.”

(2) This case drew the attention of the mobile game industry and mobile game users from the moment the lawsuit was initiated. In the process of producing numerous games, copyright infringement and unfair competition issues arose due to appearance of similar games.

(3) Main interfaces of the plaintiff’s game and the defendant’s game are as follows.

 

(A) Plaintiff (King.com: Farm Heroes Saga)

(B) Defendant (Avocado Entertainment; Forest Mania)

 

3. Case History

 

(1) Decision of the District Court

The District Court found that Forest Mania did not infringe upon the copyright for Farm Heroes Saga. However, the court found that Forest Mania’s rules of the game and method of progression are so similar that Forest Mania violated the Unfair Competition Prevention Act and ordered Avocado Entertainment to pay one billion one hundred sixty eight million one hundred ten thousand Korean won (W1,168,110,000, which is equivalent to around $1,000,000 USD) in damages.

(2) Decision at the Court of Appeals

The Court of Appeals dismissed all claims of the plaintiff, finding that no acts of the defendant fall under copyright infringement, violation of Unfair Competition Prevention Act, or illegal acts under the Civil Code.

(3) Decision of the Supreme Court

(A) The contentious points during the hearing were whether the game developed by King.com is a creative work which can be protected as a copyrighted material and whether it is substantially similar to the game by Avocado Entertainment.

(B) The Court explained that “the game developers of King.com’s Farm Heroes Saga selected necessary components for the game based on their accumulated experience and knowledge in game development and arranged and combined them in accordance with their own creative intent” and that “King.com’s game can be subject to copyright protection because it came to have creative individuality clearly distinguishable from previous games by selecting, arranging, and organically combining major components which are technically implemented in accordance with specific creative intent and scenario regardless of whether individual components’ creativity can be recognized.”

(C) In addition, the Court pointed out that “the game by Avocado Entertainment contains creative format of expression in accordance with selection, arrangement, and organic combination of major components which technically implement the creative intent and scenarios of King.com’s side as is, so both games are substantially similar.”

 

4. Significance of the Decision and Future Expectations

This decision is the first decision establishing specific standards for determining creativity of mobile games and acknowledging copyright infringement by recognizing creative individuality distinguishable from previous games. The prevalent view was that rules of games themselves fall under ideas which cannot be protected under the copyright law, and there has been no other decision, which recognized copyright infringement for games in actual cases.

This decision is expected to serve as an important standard in cases involving infringement of copyright relating to games in the future and reflects the trend in policy favoring protection of intellectual property rights, such as copyright, etc.