California Video Game Infringement Defense Law Firm
Case: Blizzard Entm't, Inc. v. Lilith Games (Shanghai) Co., 149 F. Supp. 3d 1167 (N.D. Cal. 2015) case brief!
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Plaintiff's own the copyright in the popular World of Warcraft video game franchise. Plaintiffs filed suit for copyright infringement against Defendants alleging that Defendants mobile games infringe upon the World of Warcraft works. Defendants then filed a motion to dismiss for failure to state a claim under FRCP 12(b)(6). The Court granted Defendant's 12(b)(6) motion to dismiss with leave to amend to allow Plaintiffs an opportunity to add the additional detail required by Ninth Circuit case law to their complaint, thereby plausibly establishing with a representative sampling both the copyrightability of their work and infringement.
Video game developers Blizzard Entertainment, Inc. and Valve Corporation (collectively “Plaintiffs”) are the copyright owners of the popular video game franchise “World of Warcraft.” All of the “Warcraft” games take place in the “Warcraft” universe, which is populated by an enormous variety of distinctive mythical creatures and characters, such as tech-savvy goblins, huge winged demons, bovine humanoids, serpentine sea creatures, giant humanoid panda warriors, and tall purple-skinned elves.
On September 8, 2015, Plaintiffs filed a copyright infringement action against Lilith Games Co. and uCool, Inc. (collectively, “Defendants”) alleging Defendant's mobile games “DotA Legends” and “Heros Charge” infringe on the Warcraft works. Specifically, Plaintiffs alleged that the mobile games at issue copied the Warcraft characters, “settings, terrain, background art, and other assets.”
In response, Defendant uCool, acting independently of its co-defendant, filed a Motion to Dismiss for failure to state a claim under 12(b)(6) or, alternatively, a motion for a more definite statement under FRCP 12(e).
Whether Plaintiff's sufficiently plead copyrightability of the Warcraft characters and representative infringements that Defendants allegedly copied?
Rule of Law
When filing a complaint, the plaintiffs must follow Ninth Circuit precedent to ensure the complaint sufficiently details both elements of copyright infringement of characters and infringement.
Under Fiest, To state a claim for copyright infringement a plaintiff must plausibly allege two elements:
(1) ownership of a valid copyright,
(2) copying of constituent parts of the work that are original.
In its Motion to Dismiss, Defendants argue Plaintiffs failed to sufficiently plead either element in the Complaint.
As to ownership, Defendant argues that Plaintiffs failed to identify “a single copyright they claim uCool infringes” or “the owner of any copyright they claim uCol infringes” and contends that Defendants lack standing to bring suit. The Court rejected this argument given that Plaintiffs Complaint expressly alleged that they own the copyrights in the Warcraft Works and that these copyrights are the works that Defendant is infringing. Moreover, Plaintiffs filed a supplemental brief, which contained a comprehensive list of the copyright registrations at issue. Thus, the Court found this was enough to sufficiently plead copyright ownership of the Warcraft works, and survived a motion to dismiss on these grounds.
The real issue of ownership in this case turned on the copyrightability of the Warcraft characters themselves. Characters are not ordinarily entitled to copyright protection. Under Ninth Circuit law, “copyright protection is available only for characters that are especially distinctive,” meaning a character must be “sufficiently delineated” and display consistent, widely identifiable traits. Additionally, the scenes-a-faire doctrine excludes copyright protection for “stock characters” and plots which encompass stereotyped expression and standard or common features in a wide variety of works, including audiovisual works generated by computers. Plaintiffs cited DC Comics v. Towle, which held that the Batmobile was a character entitled to copyright protection, to establish the copyrightability of the Warcraft Works.
The Court disagreed and distinguished this case from Towle, where the Ninth Circuit extended copyright protection to the Batmobile “character” only after DC Comics extensively catalogued the famous car's distinctive characteristics.
By contrast, the Court found that Plaintiffs complaint made only conclusory statements that their characters are “distinctive… with names, distinctive physical appearances, clothing, weapons, traits, abilities, and ongoing stories.” Thus, the Plaintiffs failed to meet their burden of alleging– with sufficient detail– copyright ownership in the characters from the Warcraft works.
In addressing the copying element, Defendants argue that Plaintiffs fail to identify the aspects of Plaintiff's work that the mobile game “Heroes Charge” infringes. To successfully plead copying, Plaintiffs are not required to specify each and every instance of infringement at the pleading stage. Rather, courts approve a complaint that simply alleges representative acts of infringement, rather than a comprehensive listing. In its Complaint, Plaintiffs alleged:
“Dozens of characters from ‘Hero Charge' are derived from and substantially similar to Blizzard and Valve's characters”; “all of nearly all of uCool's publicly disclose heroes are copied; “certain settings, terrain, background art, and other assets. Infringe on protected elements of their games; and “many, if not all, of these characters are copied or derived from images of characters in the Warcraft universe”.
The Court found Plaintiffs allegations “sweeping” because they fail to apprise uCool or the Court of WHICH “Heroes Charge” characters infringed WHICH characters from WHICH of Plaintiff's numerous games, related products and merchandise.
The Court reasoned that a plausible claim would require that Plaintiffs submit a representative sampling of infringed content, pleading infringement with the level of detail required by the Ninth Circuit and establishing that the content and the characters at issue are copyrightable. Absent such representative acts of infringement, the Court stated is cannot meaningfully evaluate the plausibility of Plaintiff's allegations regarding the appropriation of Plaintiff's copyrighted Warcraft works. Thus, the Court granted Defendant's motion to dismiss, but with leave to amend for Plaintiffs to cure the deficiencies in the Complaint.
Because Plaintiffs failed to state a plausible claim for copyright infringement, the Court granted Defendant uCool's motion to dismiss with leave to amend its complaint to address the deficiencies. Given that the Court concluded that the Complaint should be dismissed on 12(b)(6) grounds, it did not need to reach Defendants F.R.C.P. Rule 12(e) request for a more definite statement, as the amended complaint would serve the same purpose.
This blog written by Ms. Jennifer Cooper, Loyola Marymount law student.
Video Game Infringement Legal Services
VideoGame.LAW - we offer services in the following areas:
- Video game character copyright protection
- Character licensing and merchandising
- Cease and desist letters
- Video game analysis and copyright opinion
- TRO's and restraining orders
- Subpoena response
- Mediation of video game or mobile app disputes
- Arbitration (ex. California choice of law clauses)
- Federal court litigation
Contact a Copyright Infringement Litigation Law Firm
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