A legal Battle Royale: World’s most popular video game sued for copyright infringement

7 June, 2018
by: Cripps Pemberton Greenish

The developer of the smash hit video game Fortnite: Battle Royale is being sued by developers of rival game PlayerUnknown’s Battlegrounds (PUBG) for copyright infringement.

The claim is being brought in South Korea where the developers of Fortnite – Epic Games – have a local office. The creator of PUBG is seeking an injunction on the grounds that Fortnite bears many similarities to its own game. Fortnite was originally launched in July 2017 as a team zombie-shooting game, but a new version of the game launched in September 2017 saw 100 players fighting each other across a shrinking environment to be the last person standing. This shrinking environment concept first appeared in PUBG and is the subject of the infringement claim, with PUBG claiming Fortnite is “replicating the experience” for its users.

The Fortnite game is entirely free to download and play. It makes its money from in-game purchases of different costumes and tools and it is estimated that the game made £226 million in April 2018 from these purchases alone. What is perhaps most interesting about this method of generating revenue is that these in-game purchases provide no tactical advantage when actually playing the game. Since its release, Fortnite has taken the gaming world by storm whilst the popularity of PUBG has waned.

Despite the copyright claim there are marked differences between the two games. PUBG has a realistic, military-style theme and includes the use of vehicles to traverse its large map. Fortnite, on the other hand, is of a cartoon style, does not use vehicles and – perhaps most importantly for this copyright case – includes a fort building aspect to the gameplay. This means that, in a shootout, the winner is often the player who is better at out-building their enemy rather than simply out-gunning them. This aspect is not present in PUBG.

These distinctions are important in copyright claims. Copyright does not protect the idea itself (e.g. a 100 player shooter with a shrinking map) but how that idea is expressed.

An injunction, if granted, may prevent Fortnite from distributing the game in South Korea. South Korea is the sixth-largest market by video game revenue, responsible for $4.2 billion in 2017, and would therefore cause huge financial consequences for the company. It could spur PUBG on to additional claims in different territories which, if successful, may see Fortnite players turning to PUBG if Fortnite is no longer available.

The case serves as a prime example of the potential value of intellectual property rights.

Under English law, copyright arises automatically for original literary, dramatic, artistic, and musical works, sound recordings, broadcasts, films, and the design of pages of published work. Broadly speaking, the owner of copyright has the right to prevent others from copying or making an adaptation of their original work. Injunctions preventing the infringing acts, damages, or an account of profits are amongst the available remedies.

For more information on intellectual property claims, please contact George Fahey at george.fahey@crippspg.co.uk or +44 (0)1732 224 059.