“World of Warcraft” Creator Takes Battle to Court over Game’s Characters
What’s the News?
A federal judge in the Northern District of California recently dismissed a complaint in which video game producers claimed that characters from their games had been misappropriated by competing developers, in violation of copyright law. While characters are, in some cases, entitled to copyright protection, the court held that plaintiffs in such cases must state with considerable specificity which characters were allegedly infringed, and why those characters are copyrightable. General allegations of idea theft, the court explained, will not survive a motion to dismiss.
Blizzard Entertainment, Inc. and Valve Corporation are video game developers who have created a number of popular games, including “World of Warcraft” and “DotA,” respectively. In Blizzard Entm't, Inc. v. Lilith Games (Shanghai) Co., the companies alleged that mobile game developers Lilith Games (Shanghai) Co. Ltd and uCool, Inc. stole copyrighted aspects of their games. Most notably, they claimed that “almost every one” of the characters in defendants’ games was “a two-dimensional version” of one of plaintiffs’ characters. The defendants moved to dismiss the suit, alleging that Blizzard and Valve failed to state a valid claim for copyright infringement. The court agreed.
The Court’s Opinion: Copyright Protection for Characters
To succeed on a copyright infringement claim, plaintiffs must establish that the allegedly infringed work was entitled to copyright protection in the first place. Plaintiffs must satisfy this initial prerequisite before moving on to prove that the elements of copyright infringement are met. But as the court in Blizzard Entm't, Inc. explained, characters are often not entitled to copyright protection. Under the scenes-a-faire doctrine, common elements in characters, scenes, and plots are not copyrightable. Copyright protection is available, however, for “characters that are especially distinctive.” To establish the requisite distinctiveness, the court explained, the character must (1) have physical as well as conceptual traits, (2) be recognizable as the same character whenever it appears, and (3) contain unique elements.
Plaintiffs in Blizzard Entm't, Inc. alleged that “dozens” of their characters had been copied by Lillith and uCool, but they failed to establish precisely which ones had been stolen, and why these characters were entitled to copyright protection. While they claimed that the characters were “distinctive …with names, distinctive physical appearances, clothing, weapons, traits, and other worlds,” the court held that these assertions were merely conclusory, and that more specificity was required. Similarly, the court held that plaintiffs’ “sweeping allegations” failed to tell defendants specifically which characters had been infringed. The court dismissed the suit, but granted Blizzard and Valve leave to amend their complaints and remedy these deficiencies.
While characters are often not entitled to copyright protection, it is certainly achievable in some cases. Game developers should be mindful of this at the design stage, and strive to create characters with distinctive qualities that courts are more likely to find copyrightable. Further, as Blizzard Entm't, Inc. shows, succeeding on a copyright claim involving characters demands a high degree of specificity regarding the nature of those characters and why they are protectable under copyright law. The court may provide more guidance on the exact amount of specificity if the plaintiffs amend their complaint.
Arent Fox is monitoring issues related to copyright protection. Please contact Anthony V. Lupo, Sarah L. Bruno, Eva J. Pulliam, or Thorne Maginnis with questions.