Case 10
Copyright Infringement Dispute over “Miracle MU” Online Game
Trial Docket: (2015) PuMinSan(Zhi)ChuZi No. 529 Appeal Docket: (2016) Hu73MinZhong No. 190
[Headnotes] An online game is similar to a motion picture work in terms of expression of its entirety and method of creation, and can be recognized, when satisfying or iginality requirement as protectable as a movie-like work. Gamers’ interaction may generated continuous pictures, but in no way beyond what is preset by the game developer, and does not change the nature of a game. Similarities between different game pictures should be made by comparing the overall impression according to ordinary noticeability of the public in general by way of comparing the scenarios, characters, maps , scenes, weapons, and and monsters, etc.
[Synopsis] Appellant (Defendants below): ShuoXing Information Technology Co., Ltd. of Guangzhou (ShuoXing); WeiDong Internet Technology Co., Ltd. of Guangzhou (WeiDong)
Appellee ( P l a intif f below): ZhuangYou Information Technology Co., Ltd. of Shanghai (ZhuangYou)
Defendant below: HaWang Information Technology Co., Ltd. of Shanghai (Hawang)
ZhuangYou is exclusive operator in China of the online game Miracle MU which began operation in China in 2003. ShuoXing finished development of a webgame Miracle Mistery in December 2013, and authorized WeiDong the following January for exclusive operation in China. HaWang has on its webpage “99YOU” a link to the game operation website. Both games are of Korean style, in magic background, and with character roles upgradable for beating monsters.
Upon comparison, Miracle Mystery before grade 400 has 18 map names identical with or substantially similar to those of Miracle MU, with many of identical scenes or composition elements in appearances, with same or substantially similar role names, symbol, and same or highly similar monsters, weapons or equipment. In Miracle Mystery’s promotional articles, there are phrases like “as if time rolls back to a decade ago,” and “a decade of mystery, return of the miracle ….” In Miracle Mystery official comments, users call it webgame of Miracle MU. In addition, it is established that plaintiff has licensed another to convert Miracle MU to webgame for a basic license fee of 3 or 8 million Yuan and divides the monthly income. Plaintiff contends that defendant’s act has infringed its copyright for Miracle MU pictures, its trademark rights for the “MU” mark, and constituted unfair competition by unauthorized use of the characteristic name of a well known product with false advertisement. It claims against each and every defendant for an injunction, and compensatory damages of 10 million Yuan, plus reasonable expenses of 105,000 Yuan in addition to eliminate the influences. Defendants argue that Miracle MU pictures do not constitute movie-like works or any other work, and the two games are not similar. The Pudong court finds that online game pictures are original and can be reproduced in tangible form, and therefore subject to copyright protection. Since their creation process, form of expression, etc., are similar to motion pictures, they could be protected as “movie-like”
works. Comparison of the stories, characters, scenes and other elements of the games to determine the similarity. Upon such a comparison, it can be determined that Miracle Mystery in its entirety constitutes similarity to Miracle MU, thereby infringing the right of reproduction and dissemination of the plaintiff. Moreover, the two defendants’ acts also constitute unfair competition by unauthorized use of the characteristic name of plaintiff’s well known products and false advertisement. Because the loss for plaintiff has exceeded the maximum amount of statutory damages, the court assesses an amount above the statutory damages by taking into account of the factors of commercial value of plaintiff’s game, the seriousness of infringement, etc. The court therefore orders immediate injunction against defendants for copyright infringement acts, and unfair competition acts for unauthorized use of characteristic names of well known products and false advertisement, in addition to damages of 5 million Yuan, plus reasonable expenses 104,990 Yuan, and for elimination of influences.
After the first instance decision, defendants ShuoXing and WeiDong appeal. In the second instance trial, plaintiff withdrew its contention for well known product which is granted by the second instance court. It gives the final order of immediate injunction against the two defendants for copyright infringement of the games at issue, and for the unfair competition act of false advertisement, plus damages of 4 million Yuan and reasonable expenses 104,990 Yuan, and for elimination of influences.
[Judge’s Comment] In this case, plaintiff contends that the series of pictures are presented in a movie-like work, so as to determine substantial similarity to the work, which is innovative to some extent.
I. Determination of Similarity of Online Games Pictures
1.Online game pictures are defined within the meaning of motion pictures. That Miracle MU is a work subject to copyright protection is not questionable.
As to the type of work, the game appears in its presentation form is composed of a unity of stories, pi ctures, musi c , etc. , which develops as the gamer operates it with the stories develop also by the characters, so as to produce a series of continuous pictures with audio/visual effect like a motion picture work. Moreover, the creation process is similar to that of a motion picture, by following a line of story, with a conductor, script writer, artistic editor, etc. Because the presentation form and creation process are highly similar to a traditional motion picture, it can be recognized as movie-like work subject to copyright protection.
2.The user interface does affect the characterization of the online game as a whole. Currently, characterization of online games as a whole hinges on the interface operation of gamers. Of course, compared with traditional movie works, online games are different for their two-way communications and interface, but these features should not be used to deny the movie characteristics, because the game pictures follow the game engines by predetermined rules to pick preselected elements automatically, and the resulting audio/visual effects are the same no matter who is operating, as long as certain conditions are met. For this reason the gamers do not create works, and will not affect the originality of the online pictures as a whole.
II. Determination of Substantial Similarity of the Online Game Pictures In terms of standard for determining substantial similarity for such congregational work with multiple elements, the overall comparison principle should be followed on basis of ordinary noticeability of the public in general for the similarity of the entire pictures.
Online games are a sunrise industry having great potentials in China for extensive development, but also posing great challenges for traditional judicial protection with strong stories and exquisite characters. In copyright protection of online games, types of work can be defined from two approaches: as computer software work by the game engine as computer programs and documents; as literary work, artistic work, musical work or movie-like work judged from different game elements of words, pictures, music and visuals.
In this case for the first time, the online game pictures with characters are recognized as a “movie-like” work, being treated as an organic unity for definition and protection of its legitimate interest for clarified status of a work in overlapping sections to be protected as online game, which is beneficial for operator to have clear expectation in transfer of rights, and for the promotion of ordered and prosperous development for cultural innovation industry.
（Translated by Zheng Xiaojun, Yuan Renhui)
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