IP Law Daily Copyright infringement claims by ‘Warcraft’ games developer proceed against ‘Heroes Charge’ maker
Wednesday, May 17, 2017

Copyright infringement claims by ‘Warcraft’ games developer proceed against ‘Heroes Charge’ maker

By Linda O’Brien, J.D., LL.M.

Video game developers Blizzard Entertainment, Inc., and Valve Corporation could pursue claims that competitor uCool, Inc., infringed their copyrights by impermissibly copying elements of their video games, including "Warcraft," "World of Warcraft," and "Diablo" in its mobile device game "Heroes Charge," the federal district court in San Francisco has decided. Thus, uCool’s motion for partial summary judgment was denied (Blizzard Entertainment, Inc. v. Lilith Games Co. Ltd., May 16, 2017, Breyer, C.).

Blizzard and Valve are well-known video game developers and the copyright owners of the popular video game franchises "Warcraft," "World of Warcraft," "Warcraft III," "Starcraft," "Diablo," "Defense of the Ancients" ("DotA" and "DotA 2")(collectively, the "Warcraft Works"). Blizzard and Valve also assert copyright ownership of a variety of related products and merchandise.

In September 2015, the two companies filed suit, alleging that video game developer uCool’s "Heroes Charge" game for mobile devices infringed the plaintiffs’ copyrights in the Warcraft Works. Specifically, uCool was accused of copying the characters, settings, terrain, background art, and other features of the Warcraft games.

Before the court was uCool’s motion for partial summary judgment, arguing that Valve did not own the copyrights to the original DotA and therefore had no viable infringement claims against uCool.

Scope of the copyrights. The court first determined that the many individual versions of DotA used by players were unitary works, derivative of earlier versions of DotA. uCool’s argument that DotA was a collective work in which two players took the most popular heroes and arranged them into a new game was rejected. The Copyright Act is clear that where a work is prepared in different versions, each version constitutes a separate work, the court explained.

Regarding who were the authors of those works, although many versions are unknown, three players—known as Eul, Guinsoo, and Icefrog—created more than 200 cumulative versions of DotA, the court noted. Thus, a reasonable jury could conclude that the three players were the authors of the various works at issue.

Valve, which acquired the rights to those versions from Eul and Icefrog, could pursue infringement claims against uCool as the owner of a copyright of a derivative work, according to the court. Although Valve may not recover for infringement of heroes and other game elements that were integrated into the versions of DotA not created by Eul or Icefrog, it could recover for the original expression that Eul and Icefrog contributed to their versions of DotA as well as the original expression that Valve itself contributed to DotA and DotA 2.

Validity of the assignments. Valve must show that it validly acquired Eul and Icefrog’s copyrights in DotA by assignment in order to assert copyrights in those games, the court explained. The question of whether Eul abandoned any or all of his rights when he make DotA "open source" in a posting before assigning this rights to Valve was a matter for the jury. Although Eul may have intended to let other players build further DotA maps using Blizzard’s program, he may not have intended to let them build standalone DotA games for sale. Finally, Icefrog’s assignment of his rights in another game to a different developer did not indicate that he assigned any intellectual property in DotA. Even if some creative expression "spilled over" from the other game into DotA, that would only reduce the value of Icefrog’s copyrights rather than strip him or Valve of ownership, the court concluded.

The case is No. 3:15-cv-04084-CRB.

Attorneys: Andrew C. Spitser (Mitchell Silberberg Knupp LLP) for Blizzard Entertainment, Inc. and Valve Corp. Colin H. Murray (Baker & McKenzie LLP) for Lilith Games [Shanghai] Co. Ltd. Claude M. Stern (Quinn Emanuel Urquhart & Sullivan, LLP) for uCool, Inc.

Companies: Blizzard Entertainment, Inc.; Valve Corp.; Lilith Games [Shanghai] Co. Ltd.; uCool, Inc.

MainStory: TopStory Copyright TechnologyInternet CaliforniaNews

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