If you were a teenage boy sometime in the last 20 years (or you were an adult male who wished he was once again a teenager), then you’ve undoubtedly heard of the popular massively multiplayer online game “World of Warcraft.”
To many, the game is simply known as “WOW” and lets players create online avatars as humans, orcs, and any number of other creatures in a mythical world where magic is a vital skill set and quick thinking can be as valuable as strong armor and a heavy sword. The WOW universe presents its player characters using a distinctive animated style that combines elements of cartoons with those of the real world in a manner that is both immersive and very memorable. Not surprisingly, the worldwide popularity of WOW has spawned toys, comic books, animated series, and even an upcoming Hollywood blockbuster.
Unfortunately, WOW has also spawned imitators.
WOW was created and is operated by Blizzard Entertainment and Valve Corp., two companies that are well-known in the computer gaming world, and they are very protective of the valuable intellectual property that forms the basis for the game. So, when Blizzard and Valve discovered that competitors Lilith Games Co., of China, and California-based uCool had been operating their own, allegedly derivative versions of WOW using remarkably similar online characters, Blizzard and Valve filed suit for copyright infringement. The lawsuit sought, among other things, an injunction against Lilith prohibiting it from continuing to use the characters in its online game.
To further complicate matters, Lilith had already sued uCool based on allegations that uCool’s game “Heroes Charge” was a rip-off of Lilith’s game “The Legend of Sword and Tower” and improperly used 240,000 lines of copyrighted software code that had been stolen from Lilith. Last September, U.S. District Judge Lucy Koh denied Lilith’s motion for a preliminary injunction to stop uCool from selling “Heroes Charge.”
Now, Lilith and uCool find themselves on the same side in the lawsuit filed against them by Blizzard and Valve. The latest suit is seeking monetary damages and an injunction against infringing use of characters, “settings, terrain, background art and other assets” for Blizzard and Valve’s mutually owned “World of Warcraft” franchise, which includes several versions of “Warcraft,” “Starcraft,” “Diablo” and “Defense of the Ancients.”
Also in September, Blizzard and Valve asked for preliminary and permanent injunctions. Acting on its own, uCool filed a motion to dismiss for failure to state a claim. It said the plaintiffs must make a more “definitive statement,” and provide specific details about the allegedly infringing characters and assets. In a December 8, 2015 ruling, U.S. District Judge Charles Breyer acknowledged that although Blizzard and Valve had plausibly alleged “ownership of a valid copyright,” they cannot show “copyrightability” of characters.
“Although plaintiffs allege that ‘dozens of characters from “Heroes Charge” are derived from and substantially similar to Blizzard and Valve’s characters,’ they plead no facts demonstrating that any one of the dozens of characters are plausibly copyrightable,” Breyer wrote in his 9-page order. Further, the plaintiff’s arguments are improperly “conclusory” that the WOW characters are “distinctive … with names, distinctive physical appearances, clothing, weapons, traits, abilities and ongoing stories,” and said they would have to provide more detail about the characters’ individual characteristics in order to determine copyrightability.
“Given that the court need not accept as true conclusory allegations … plaintiffs have failed to meet their burden of alleging, with sufficient detail, copyright ownership in the characters.” Breyer granted uCool’s motion to dismiss, with leave to amend, allowing Blizzard and Valve the 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.” And, of course, he denied the request for injunctions.
Why It Matters. During the past 20 years, owners of fictional character have been successful in extending protection for their increasingly valuable properties. Starting with a series of cases in the previously restrictive Ninth Circuit (which includes California), appellate courts have shown a willingness to extend traditional character protection (from books and films) to protect graphic characters. These courts have broadened the scope of copyright protection by adopting the total “look and feel” approach from doctrines of trademark and unfair competition law and adapted it to copyright infringement claims. Additionally, the popularity of the character was also considered as a factor in the substantial similarity copyright infringement analysis with the result that the “feel” of the character reduced the level of similarity needed to prove copyright infringement.