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

Follow us at http://www.twitter.com/gamerlaw or subscribe to our weekly email newsletter here

Legal MumboJumbo and Popcap Games

Earlier this week it was reported that casual games developer MumboJumbo had succeeded in its legal action in Texas against fellow casual games developer Popcap Games, with the jury awarding MumboJumbo damages of $4.6m.  More on the case below…
FYI, MumboJumbo is the creator of “such popular games as ‘Midnight Mysteries: The Edgar Allan Poe Conspiracy,’ ‘Luxor Adventures,’and ‘Samantha Swift and the Mystery from Atlantis‘ (‘fraid I’ve not played them).
What do we know about the case?
The litigation stemmed from a 2006 contract under which MumboJumbo agreed to produce, distribute and sell certain PopCap games in North America.  The jury reportedly found that “PopCap breached the contract when it went behind MumboJumbo’s back and decided to market and sell its games on its own”.  The case involved findings of breach of contract, fraud and tortious interference on PopCap’s part against MumboJumbo (serious stuff).  The press release statescentral to proving that portion of the case were PopCap’s own internal e-mail messages, which showed the company employed a calculated use of false and misleading statements in order to sour that business relationship“.  Serious stuff.
The jury awarded $4.6m in damages.  Separately, there will be another court hearing to work out the lawyers’ costs (which is standard practice in England and could add a fair bit on to the $4.6m for which Popcap already has to cough up).

According to Gamesindustry.biz, Popcap’s VP of public relations Garth Chouteau said of the judgment: “PopCap continues to believe that it did nothing wrong in this case, and will vigorously pursue its claims and defend itself through the appeals process.”  Which, it seems reasonably safe to assume, means that Popcap will be mounting an appeal against the decision.

What does all that legal mumbojumbo (ahahaha) mean?*
* sorry, couldn’t resist the weak pun
The judgment in the case has not been released, so there is very little to go upon at present unfortunately.  But I thought it might helpful, in very general terms (based in English law, which is very similar to US law in these respects), to give the lowdown on what those legal findings of breach of contract, fraud and tortious interference mean:
Breach of contract

A contract is an agreement (whether written or verbal) between two or more persons which has four basic characteristics: (i) an offer, (ii) acceptance of that offer, (iii) consideration (i.e. something of value in return for what is being offered) and (iv) intention to create legal relations (i.e. meaning to enter the contract).  Example: Ann buys from Bob a copy of Half Life 2 for £10 following an verbal agreement between them.
The ‘contract’ will contain the key elements of the deal (these are the ‘Terms and Conditions’ you hear about, plus other stuff), which both sides are meant to respect.  But if one of side breaks the deal, then in principle that entitles the other side to go off to court, provided you can prove:
(i) there is a specific enforceable term in the contract on which you can rely (e.g. Ann promised to buy Half Life 2 from Bob)
(ii) breach of that term (e.g. Ann took the game but refused to pay Bob)
(iii) loss (e.g. Bob lost out financially as a result of the breach of contract)
The basic way you calculate the loss is this: how much would you have gained had the contract been properly performed?  In the above example, Bob would have earned £10 had the contract been performed so that is the measure of his loss.  Obviously, with large contracts like the one that MumboJumbo and PopCap entered into, the amounts at stake – and therefore the potential contractual damages – can be very large and difficult to quantify exactly.
Note: one important point of difference between England and the USA is that, in England, breach of contract cases are decided entirely by a single judge, who will determine how much damages should be paid if any.  However, in the USA there is still jury trial available in breach of contract cases, in which case the jury determines the damages to be paid out (this is said to be one of the reasons that you see larger contract damages paid out in the USA than in England).
Obviously, real breach of contract cases are generally far more complicated than that.  There are often difficult arguments as to what the contract actually said, what constitutes a ‘breach’ anyway and what the innocent party is entitled even if he/she is in the right.  Then, on top of that, sometimes the innocent guy doesn’t just want compensation but also wants some protection that the wrongdoer won’t do it again…But you get the gist of it.
Fraud is fairly simple to explain: it is any act by Ann which is intended to deprive Bob of a benefit or to cause him harm, for the enrichment of Ann herself.  The above example, where Ann takes the game but doesn’t pay Bob, could potentially be fraud if there was the appropriate intention.  Another example would be Ann impersonating Bob in order to get a whole bunch more copies of Half Life 2 at his expense.  A yet further example would be Ann entering into a business deal with Bob with the hidden purpose of making money at Bob’s expense or damaging his business in some way.
Fraud is one of the most serious legal offences around.  As a result, the law treats it pretty seriously and so it can have both civil and criminal consequences (i.e. you can sued for lots of money AND face criminal prosecution potentially).  If Ann was found liable for fraud, she could find herself having to (for example): compensate Bob for his loss; pay over to Bob all of the profit she made at his expense; give disclosure as to exactly what she did and how; and potentially face other legal/regulatory/professional proceedings depending on what she does for a living.
Tortious interference
This is difficult to summarise because it is not clear exactly what kind of ‘tortious interference’ Popcap was found liable for.  But, in very general terms, English and American law recognises the concept that a person can deliberately do things which are intended to disrupt other people contracting with each other or break their existing contracts with each other.  For example, Ann finds out that Carl has contracted with Bob and offers Carl incentives/bribes/whatever in order to persuade him to contract with Ann instead.  Obviously, in that kind of situation Ann may just be a good businesswoman and no harm in that, but sometimes it goes beyond that and the law needs to step in to stop someone deliberately encouraging the breaking of contracts.
If and when more details about the MumboJumbo/Popcap case are released, then hopefully we will able to apply some of the above to the actual facts.  Now, that’s the end of Civil Law 101 for today, kids…
Follow us at www.twitter.com/gamerlaw!
[Image credits: Popcap Games ]