Supreme Court of Korea Found Copyright Infringement in Selection, Arrangement or Combination of Elements in Games for the First Time2019-06-27
The First Supreme Court Decision for Copyright Infringement in Games is Issued in June, 2019.
On June 27, 2019, the Supreme Court of Korea issued a decision in a case for copyright infringement in substantially similar selection, arrangement and combination of the elements in games. This ruling is the first Supreme Court decision recognizing copyright infringement in copied games including mobile games. Lee & Ko represented the plaintiff, King.com, throughout the proceedings before the lower courts as well as the Supreme Court, and played important role in achieving the ground breaking decision of the Supreme Court.
Facts of the Case and Questions Presented
King.com, a prominent game company and creator of “Farm Heroes Saga,” brought a copyright infringement suit against the defendant who distributed another game, “Forest Mania” which was substantially similar to Farm Heroes Saga. Both games expressed the game rules through similar movement and order of introduction but had different game characters. Seoul Central District Court found no copyright infringement but held that the defendant violated the Unfair Competition Prevention and Trade Secret Protection Act (the “UCPA”) and on appeal, Seoul High Court held in favor of defendant, finding no copyright infringement and no violation of the UCPA. King.com appealed the decision of Seoul High Court.
On the appeal case heard before the Supreme Court, Lee & Ko presented how the “creative characteristics” of Farm Heroes Saga were actualized through selection, arrangement and combination of game rules. Given the nature of the case where many contentious issues were based on visual expressions, the Supreme Court allowed both sides rare opportunities of presenting the arguments before the court using visual materials and Lee & Ko successfully presented convincing evidence of substantial similarities between Farm Heroes Saga and Forest Mania. Finding copyright infringement based on Forest Mania’s copying of the creative characteristics of Farm Heroes Saga, the Supreme Court held in favor of King.com, thereby reversing Seoul High Court’s decision and remanded the case back to Seoul High Court.
In King.com case, defendant’s game had design elements such as characters which were different from such elements in plaintiff’s game but selection, arrangement and combination of game rules were substantially similar in both games. In the decision, the Supreme Court explained that a game can be protected under copyright if its elements are selected, arranged and combined in accordance with certain intention so that the resulting game has creative characteristics distinguishing itself from other games. This case is the first Supreme Court case where the court recognized copyright infringement in substantially similar games.
Implications in Game Industry
A game is a complex work which combines narratives, music, visual design, video and computer programs. Until King.com decision, there has been no clear precedent on to what extent the copyright protection is available for games, especially on whether a copyright infringement can be found for a game which imitates original games but changes the design of characters. With King.com decision, the court provided a guideline for determining copyright infringement for games by recognizing creative characteristics in selection, arrangement and combination of game elements.