Opinion: why PopCap had to say yes to Blizzard

Last month, news emerged that Blizzard will introduce an homage to Popcap’s hit game Plants vs Zombies in the forthcoming World of Warcraft expansion, Cataclysm.   Apparently there will be a Plants v Zombies themed quest chain in the game, including the ability to…well, fight zombies with plants.  It seems that Popcap had collaborated closely with Blizzard on the project.

All well and good.  But this got me thinking: what if hypothetically it had been reported that PopCap had known nothing of Blizzard’s plans and was unhappy with them?  What could Popcap have done then, legally?

My view is this: if Blizzard did it right, then PopCap couldn’t have done much legally – and I’ll explain why in this post. 

But first, a couple of caveats.  One: this is not a complete legal analysis – it is an opinion piece, in which I take you through my views of the key legal issues that would be encountered (though if you do want a careful legal analysis about these kinds of issues, let me know!)  Two: this is not intended to cast any aspersions on Blizzard or PopCap – I’m just using a convenient recent example to discuss the limitations of copyright and trademark law as regards gamesThere is a tendency sometimes to think that, just because someone has copyright and trademark protection in their games, that somehow that makes them invulnerable to copying etc.  Not at all – as I’ll show you.

The basics

These are real basics: a game is really just a bundle of different components : images, audio, video, code, databases etc.  Virtually all those components are intellectual property (i.e. intangible stuff you can own, as opposed to tangible stuff you can own – such as a house) and therefore protected by intellectual property law.  The games components outlined above will usually be protected by a branch of IP law called the law of copyright (more on that below).  Told you it was the real basics…

Separately, your name, the name of the game and the names of some its key features (e.g. its characters) can potentially be protected by trademark law.  For example, Nintendo and Super Mario are trademarked terms (again, more on that below).

In addition, there can be a whole bunch of other intellectual property rights in or around your game – e.g. rights in databases forming part of the game or in its packaging or ‘get up’.  For the purpose of this post, they’re not as relevant so I won’t discuss them.

The copyright bit

As I said much of the game components, like audio and graphics, will be protected by copyright law.  But really that just protects the actual images you’ve drawn or audio you’ve actually recorded.  Copyright law does not give you a monopoly over every other kind of similar image or audio. 

Example: if Alan draws a picture of a fat grey zombie attacking a plant, then he can’t stop Bob entirely separately drawing and selling another image of a fat grey zombie attacking a plant.  This is a critical principle of copyright law: it protects the expression of an idea, not the idea itself.  Two people drawing that picture entirely separately have just drawn on a common idea, so neither of them has the right to stop the other from drawing or exploiting their picture.    Copyright law does this in order to strike a balance between rewarding hard work and protecting intellectual liberty.

Ah, you say, but what about if Alan saw Bob’s picture first?  That’s where it gets tricky.  If Alan can prove that Bob had access to his picture, and can prove that Bob made a replica picture that copies all or (to use some legalese) a “substantial part” of Alan’s picture, then in principle Alan could sue Bob for copyright infringement on the basis that Bob’s inspiration was Alan’s picture, not the abstract idea of a fat grey zombie attacking a plant.

BUT, suing for copyright infringement is not as easy as just looking at the two pictures.  Judges have to look very closely at every aspect of the two copyright works, comparing and contrasting every part of them in order to reach to a decision as to whether there are enough detailed points of similarity to justify a finding of copyright infringement.  This is a very, very hard test to meet.  On top of that, it is often hard to prove that the person who made the alleged replica work actually had access to, and copied, your copyright work.  All lawsuits ultimately involve a degree of chance, but copyright lawsuits often  go beyond that.

What about if there are no obvious technical examples of copying but there is overall a very similar ‘look and feel’ to the two works?  For example, what if there are two GUIs or menus that are not exactly the same but overall give the same or similar effect – could there be copyright infringement there?  Answer: it is going to be very, very hard under UK (and US for that matter) law to prove that someone has copied your game or any other copyright work just based on a similar ‘look and feel’. 

A good example of how hard all this is to prove is the Da Vinci Code case (aka Baigent and Leigh v Random House).  Two authors claimed that Dan Brown had plagiarised their book, The Holy Blood and the Holy Grail, when writing his massive hit The Da Vinci Code.  Brown quite clearly had taken a huge amount of inspiration and plot details from their book, but he was not found liable for copyright infringement because he hadn’t actually copied any text from Baigent’s and Leigh’s book.  There were not enough painstaking points of similarity between the two books, and any general similarities or ‘look and feel’ were not sufficient, to find Brown liable for copyright.

Another example:  Navitaire Inc v easyJet.  Navitaire had developed an airline booking system, which easyJet instructed software engineers to replicate down to the last detail, partly by reverse-engineering it through repeated use of the system.  Navitaire tried to sue for copyright infringement and failed because, even though easyJet it couldn’t show that the relevant copyright works had technically been copied in the word-for-word sense and its ‘look and feel’ argument failed.

That key point again: it’s actually quite hard to prove copyright infringement regarding software, including games.  Ever wonder why (naming no names) some social games look, sound and and have names remarkably similar to each other?  It’s partly because the above shows how hard a lawsuit over any alleged copying would be.


So that’s all very nice and academic, but what does it mean for PopCap and Blizzard?  Here’s my view:
  • Popcap will (unless it has assigned it to someone else) own the copyright in all the visual, audio, video, code etc in Plants vs Zombies
  • But that does not give Popcap a monopoly over the idea of a cartoony tower defence game in which the player builds plants to fight off zombies
  • Nor does it give Popcap a monopoly over the ‘look and feel’ of that kind of game
  • Done correctly, Blizzard could quite properly look at Plant v Zombies and – without actually copying any of the copyright works in that game – make its own version which looked very similar and played very similar
  • In other words, if Blizzard had decided to include a game-mode very like Plants v Zombies in its game, and did it correctly, I think Popcap would have great difficulty in arguing copyright infringement against Blizzard
Of course, there’s a BUT here.  None of this means that you have a licence to rip someone else’s game off without regard to copyright law, firstly because that’s just a bad thing to do but secondly because there’s nothing to stop the copyright owner commencing litigation against you anyway (even if the prospects of success are actually against it).

The trademark bit

So, copyright wouldn’t help (I think).  How about trademark?  Answer: I don’t think so, not if Blizzard was savvy.

Again, another bit of legal 101 first.  Trademarks are intended to give legal protection to the financial value of the name of your company and product, because otherwise it is very tempting to put together a similar product with a similar name and piggyback on someone else’s successful product.  This often comes up in cybersquatting cases, when a shady character sets up a website very similar in name to a popular website and tries to profit from misdirects (for example, Facebook recently successfully went after and shut down Facebok.com).  So, both ‘Popcap’ and ‘Plants v Zombies’ are (or should be) trademarked. 

The basic test for trademark infringement is fairly simple: if you use deliberately in your trade a name which is similar to a name trademarked by someone else and this is likely to cause consumer confusion between your name and the trademarked name, in principle you can be liable for trademark infringement to the trademark owner.

The solution is simple: use a name which won’t cause consumer confusion.  So, if Blizzard was to use a name sufficiently similar to Plants v Zombies to cause consumer confusion (e.g. ‘Zombies v Plants’) then in principle it would be liable for trademark infringement.  But what if Blizzard used a name like “Botanical Mayhem” or something? 

My answer: far less chance of  succesful legal complaint from PopCap, probably.  So Blizzard could take their own type of plant/zombie tower defence game, give it a non-trademark infringing name, and off they go.

Practical points coming out of this little thought experiment:
  • Having copyright and trademark protection for your game is helpful, but it doesn’t necessarily make it invulnerable to being copied/ripped off
  • Copyright protection isn’t going to be a complete shield if someone is determined to exploit your game cleverly
  • Trademarks won’t help you either if they deliberately call the game something else which is sufficiently different so that it wouldn’t cause consumer confusion
  • BUT, litigation isn’t just about winning a lawsuit when you’re absolutely right, it’s also about applying commercial pressure to the other side – so you shouldn’t necessarily be swayed by just these legal arguments
  • And don’t take of this as a licence to go ripping someone else off – obviously, it’s never a good idea to do that

Image credit: PopCap Games/Wikimedia

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6 comments

  1. Although this case was a homage, rather than attempting to capitalize on the success of "Plants v. Zombies", if you look at the history of video games, not only have clones of hit games been ubiquitous, but the industry is essentially driven by the process of copying the gameplay of successful titles.
    It was really obvious in the early '80s when gameplay was simple – it was really clear that "Gobbler" or "Crunch Man" were gameplay clones of "Pac Man" with different graphics (but the same theme), for instance. The practice of copying gameplay was so prevalent at this point that simply altering a minor detail or two was sufficient for a product to be considered a "new" and even innovative game as long as the actual game assets were different.

    Not much has changed with today's AAA titles; minor variations of gameplay and/or new thematic dressing are sufficient for a game to distinguish itself as different. Some genres are defined so tightly that only the most superficial changes differentiate the various games in the genre. Real Time Strategy games, for example, were initially so narrowly defined that the only differences between many titles were the names and appearances of the units and the resources they collected; gameplay was otherwise indistinguishable. Blizzard as a company is an interesting example since they're both imitators and imitated. The game "Diablo"is a good case in point: a graphical update of the game "Rogue" (itself so copied it spawned the term "Rogue-like"), it inspired a slew of imitations, some of which copied the gameplay, the user interface, the graphical style of the game and even closely imitated the appearance and functionality of specific entities in the game.

  2. Gameplay cannot be copyrighted or trademarked, which is why it's widely copied.

    Aspects of it could be patented, but that is a whole minefield you don't want to enter.

  3. Contrary to your statement that the easyJet system was a replication from the ground up,
    if you bother to read the legal ruling from the High Court you will see that there was no copying of the software and that the code was developed from requirements specified by easyJet.

  4. @Anonymous – I have read the Navitaire case thanks – that's why I referred to it in the first place. I set out a pretty simplified summary of the case admittedly, so I've amended that slightly, but actually there is evidence cited in the judgment that Easyjet did copy aspects of the Navitaire system from the ground up – albeit through non-textual copying and 'look and feel' copying which wasn't sufficient for copyright purposes.

    That said, your tone and you commenting anonymously isn't appreciated, I'm afraid.

  5. My company BulletProof Technologies, developed this system, and your blanket statement that we developed the system by a meticulous inspection of the openRes system is not factual and is misleading and I don't appreciate it… hence the tone. At the time of the software writing a US court case Lotus v. Borland removed aspects of a software user interface from copyright protection. The ruling in the UK was to align law along EU directives. So in short the "copying" found in the judgement was a text based VT100 screen in which agents entered text commands that openRes said they took from other airlline systems like Sabre. Navitaire was trying to gain copyright protection on simple entries like the letter "G". If they had been able to do this, perhaps I might have a legal basis to sue you for using the work "the".

  6. just curious, since copyright and trademark protection seems to be rather weak, under what circumstance can an software developer make use of patent, and is it worth considering?

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