Apple APP Store Game Infringement Disputes
Video games and mobile applications can be the subject of copyright and trademark protection. These can also be infringed by competitor game companies who sell “copycat” games. When a dispute arises, it may make sense to have a law firm located in California (we have an office in San Francisco) who can help you deal with Apple, a California based company. This blog provides a general overview of the issues that can arise when an IP dispute boils over.
Not resolving the dispute between parties can put both parties at risk
If you cannot resolve your copyright or IP dispute with the opposing party who is claiming infringement, you may get an email similar to this.
“Dear Sir or Madam,
Please include APPXXXXXin the subject line of any future correspondence on this matter.
XXXXXX has advised that this matter is still not resolved. Please contact XXXXX immediately regarding this issue. You can reach XXXXX through: XXXXXXX (email:XXXXXXX).
As you know, it is your responsibility to resolve this issue directly with XXXXX, and further, that you are responsible for any liability to Apple in connection with this matter. We look forward to confirmation from you and XXXXX that this issue has been resolved.
If the matter is not resolved shortly, Apple may be forced to pull your application(s) from the App Store.
Apple Legal | One Apple Park Way | Cupertino | CA | 95014
We look forward to receiving written assurance that your application does > not infringe Complainant's rights, or that the parties are taking steps to > promptly resolve the matter. Please keep us apprised of your progress. > > Please note that during the course of this matter: > > 1. Correspondence to Apple must include the reference number noted above > in the subject line and copy the other party. All correspondence sent to > Apple may be shared with the other party. > > 2. Written assurance of rights may include confirmation that your > application does not infringe Complainant's rights, an express > authorization from Complainant, or other evidence acceptable to Apple, and > should include documentation wherever possible. > > 3. Should you choose to remove your application (for example, while you > make any necessary changes), visit App Store Connect at > https://appstoreconnect.apple.com and access your app in the Manage Your > Application module.
> 4. Developers with a history of allegations of repeat infringement, or > those who misrepresent facts to Apple and/or the Complainant are at risk of > termination from the Developer Program. > > 5. Failure to respond to the Complainant or to take steps toward > resolving a dispute may lead to removal of the app(s) at issue as in > violation of the App Store Review Guidelines and/or the iOS Developer > Program License Agreement. Please keep Apple apprised of your progress. > > Thank you for your immediate attention. > > Sincerely,
App Store Infringement Notices & Legal Team will Review
As you can see, the preferred route is to work out your infringement issue with the other party and keep Apple notified. If you don't, as the email notes, they might just take down both applications and let the parties figure it out. As also noted, if Apple is sued for the infringement, one of the parties may need to indemnify Apple.
Doctrine of Independent Creation
One legal argument that arises in these types of competitive situations is that “I made this game on my own, independently, no copying” of their work.
“Although our cases have not always made this point explicit, the second element has two distinct components: “copying” and “unlawful appropriation.” Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157, 1164–65 (9th Cir. 1977); Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946); 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.01[B] (2017). Proof of copying by the defendant is necessary because independent creation is a complete defense to copyright infringement. No matter how similar the plaintiff's and the defendant's works are, if the defendant created his independently, without knowledge of or exposure to the plaintiff's work, the defendant is not liable for infringement”. See Feist, 499 U.S. at 345–46.
“The Copyright Act provides that copyright protection does not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in [the copyrighted] work.” 17 U.S.C. § 102(b). Thus, a defendant incurs no liability if he copies only the “ideas” or “concepts” used in the plaintiff's work. To infringe, the defendant must also copy enough of the plaintiff's expression of those ideas or concepts to render the two works “substantially similar.” Mattel, Inc. v. MGA Entertainment, Inc., 616 F.3d 904, 913–14 (9th Cir. 2010). When the plaintiff lacks direct evidence of copying, he can attempt to prove it circumstantially by showing that the defendant had access to the plaintiff's work and that the two works share similarities probative of copying. See Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir. 1987); 4 Nimmer on Copyright § 13.01[B]. Such proof creates a presumption of copying, which the defendant can then attempt to rebut by proving independent creation.” Three Boys Music Corp. v. Bolton, 212 F.3d 477, 486 (9th Cir. 2000). See RENTMEESTER V. NIKE
Or, another argument I hear is:
My work transformed their work and provides a superior game experience. Transformation of a copyrighted work might be deemed a protected “fair use”
“Under the first of the four § 107 factors, “the purpose and character of the use, including whether such use is of a commercial nature … ,” the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is “transformative,” altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”
See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)
These are issues that may have to be taken up in Court if the parties cannot agree on a resolution, either voluntarily or via mediation, arbitration, or litigation.
Items to compare in games
When comparing one game to another, the Courts will try to see if they games are “substantially similar.” Here are some of the game elements that may be reviewed:
-the game content
Copyright your source code
Another thing to bear in mind is that game source code can be copyrighted. This is a great way to protect your product and seek “statutory damages” for willful copyright infringement (which gives an owner greater leverage to settle these cases out of court), and which allows an aggrieved Plaintiff to seek attorney fees if a copyright infringement lawsuit is filed. It may be wise to protect the source code and audio and video assets of a game, and possibly the company logo and product packaging.
Here is more information from the United States Copyright Office (Circular 61 – Registration of Computer Programs):
This circular describes the process for registering computer programs and related works with the Copyright Office. It covers • HTML • Deposits and trade secrets • Derivative computer programs • CD-ROMs • Computer screen displays • User manuals • Video games • Object code
Each version of your game is a new version:
“Note that each version of a computer program containing new, copyrightable authorship is considered a separate work. You must submit a separate application, filing fee, and deposit for each version you want to register. If, however, your program is unpublished, you may be able to register multiple versions of the same program by submitting them together as an “unpublished collection.” For more information, see Multiple Works.”
“Deposit Requirements Submit the source code for the specific version of the computer program you want to register. Source code is the set of statements and instructions authored using a programming language (e.g., C++, PERL, Java). Source code is comprehensible to a person familiar with programming language but requires conversion into object code before it is comprehensible to a computer or other electronic device. Copyright Registration of Computer Programs 3 You can upload the source code to the electronic registration system, preferably as a PDF file or other file type accepted by the Copyright Office. The list of acceptable file types is available online. Alternatively, you can print out the source code on paper and mail it to the Office. In all cases, add the title and version number of the program to the first page of the code.”
Why you want a California IP and Copyright lawyer to handle this
It can be difficult to work things out amicably with other parties especially when you are in competition with each other. Egos can get out of check and passions can run high. For these reasons, it can be best to have a skilled negotiator working on your behalf who can advocate your position, cite case law, and try to get the matter resolved so it does not turn into a lengthy, costly litigation battle. We can help make the decision whether or not you want to hand over your source code, or if there is a better way to resolve the Apple dispute.
Contact an Apple Mobile Game Dispute Attorney – California
We offer low flat rate legal fees to handle most non-litigation disputes. We can assist with cease and desist letters, DMCA takedown notices, federal court injunctions, subpoena issues, and working with Apple representatives try to resolve the dispute. Contact us at (877) 276-5084 or email me at the address on the top right side of this page.