Even in times of the “eSports Winter,” the gaming industry continues to grow steadily and has become one of the largest entertainment media in the world. Last year alone, the industry’s revenue in Germany rose to nearly 10 billion euros. Innovative game concepts and unique game designs are crucial for the success of video games. The competition for media attention and players is fierce. It is not uncommon for basic concepts and game ideas of successful games to be adopted by competitors to offer similar games and benefit from the hype of the original game. It is therefore not surprising that legal proceedings in the industry are also increasing. The Cologne Regional Court recently dealt comprehensively with the copyright protection of game concepts and the limits of imitation.
I. Mobile Games as a Driving Force of Jurisprudence
The subject of the judgment was an interim injunction application by a development studio based on one of its game, which has been among the most successful mobile games since August 2022 and is offered worldwide by the developers. The racing idle game has been downloaded more than 10 million times on the Google Play Store alone and was temporarily among the top 10 free-to-play games in the app stores.
According to the development studio, the combination of the basic elements of their game formed a unique game concept with entertaining and generally appealing game design, which should enjoy copyright protection on its own. The plaintiff argued, that not only the game in its specific design represents a unique copyrighted work but also its basic idea. The studio claimed that the competitor’s game infringed its copyright. It acknowledged that the mere idea of a video game is generally unprotected. However, the development studio believed that the competitor’s game adopted the essential overall impression of their own game, which underlies the creative and individual aspects of the game. Not only special events were adopted, but also essential basic elements in their specific graphic design. The development studio argued that the competitor’s game copied not just the mere idea of their game but the entire concept.
The development studio claimed that the game concept included the following game elements:
- The presence of an “idle game” racing game,
- The game character must autonomously overcome certain terrain in four different disciplines,
- The player’s task is to best prepare their character for each race through training and specific equipment,
- The game character autonomously participates in each race,
- Equipment can be obtained by winning races, certain events, or purchasing in the shop, and this is designed through the following game elements that must be executed:
- A specific user interface is shown before each race, displaying the acquired abilities and further improvement options for the game character;
- During the countdown, the smartphone or tablet vibrates to the numbers 3 to 1, and there is a slight zoom-in on the starters from a bird’s-eye view;
- Each of the four disciplines for overcoming the terrain is shown in a specific camera perspective, with natural elements visible in the background;
- After crossing the finish line, a specific user interface is shown again, displaying the position of the game character;
- After the race, a new user interface is shown, presenting the possibilities for improvement through training and equipment.
The competing studio on the respondent’s side argued that neither individual elements of the plaintiff’s game nor their combination were in any shape or for “new” or “special.” Both games have a previously known “look and feel” and were based on already known ideas that are not protectable as such.
II. The Court’s Decision
The Cologne Regional Court rejected the application for an injunction. It emphasized the principle that the overall impression of the designs is decisive when comparing two works, but argued that the contested game did not infringe the plaintiff’s copyright. Although the plaintiff’s development studio’s game constitutes a copyrighted work, the overall impression of the respondent’s competitor game differs significantly from the plaintiff’s game.
The court particularly dismissed the plaintiff’s view that the game concept itself is a work protected by copyright. According to the court, the game concept underlying both games and the sequences in the game follow established rules, especially those dictated by logic, leaving little room for creative activity. Racing games typically feature the essential elements on which the development studio based its application. It is neither new for players to compete in multiple disciplines nor for players to adapt their character to different game challenges by selecting attributes and equipment. The fact that this must be done in the context of an “idle game” training system does not constitute a creative activity by the development studio. It is a logical consequence of the training system that a game character gains skills through better equipment selection; this is neither individual nor creative.
The collection and arrangement of various game elements also do not result in a violation of the plaintiff studio’s rights. The ten abstract features cited by the plaintiff are implemented differently in both games, particularly graphically. Moreover, the elements used in both games are already known from earlier games like Chao Races (containing similar disciplines), Duck Life (idle racing game with training for running, swimming, and flying), or Animal Raceway (idle racing game with training functions); these concepts are characteristic of the genre and therefore not exclusive. Furthermore, leaderboards, progress opportunities through in-game events, and in-app purchases are well-known and widespread elements in video games. Both parties also purchased graphics and buttons from the Unity Asset Store. This leads to a similar visual representation (“look and feel”), which, however, cannot be considered a copyright infringement since these materials are generally available and widely used. In conclusion, while both games have similar elements, their specific implementation and visual design differ significantly. The overall impression of the contested video game does not match the plaintiff’s game to such an extent that copyright infringement can be assumed.
The plaintiff studio’s attempt to assert unfair competition claims in the form of supplementary protection of performance also failed. The plaintiff studio’s game does have a “competitive individuality,” but this is at most to be rated as average. However, the defendant’s game does not constitute an unfair imitation. While it has adopted the basic idea of an “idle racing game” with training components, this basic idea is not protectable. Rather, the overall impression of both games, despite certain similarities, significantly differs according to the court. The court specifically noted that the graphic design and other specific elements of both games differ considerably.
III. Conclusion
While the court recognizes that the specific implementation of a game can be protected by copyright, the mere idea or general concept of a game does not suffice for the protection sought by the plaintiff. The decision of the Cologne Regional Court demonstrates how complex and challenging the legal situation can be in the innovation-driven gaming industry. Particularly in developing game concepts and designs, a clear and strategic approach is required to ensure optimal protection of creative developments.
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