Universitas Indonesia

“The Issue of Originality in Visual Aspect of Videogames”

Thesis

Walter Orlando Wijaya

1506790141

Faculty of Law
International Sub-Programme
Depok
November 2018
 Universitas Indonesia

“The Issue of Originality in Visual Aspect of Videogames”

Thesis

Filed as one of the requirements to acquire law graduate degree

Walter Orlando Wijaya

1506790141

Faculty of Law
International Sub-Programme
Depok
November 2018
 Originality Statement

This thesis is a work of my own, and all sources, whether quoted or referenced has been stated
correctly

Name : Walter Orlando Wijaya

NPM : 1506790141
Signature : ………………………..
Date :
Foreword
Halaman Pernyataan Persetujuan Publikasi
Table of Contents
Abstract
List of Attachments
 Chapter I
Introduction

I.I Research Backgrounds & Brief History

Video games, are one of the newest forms of entertainment, in which made its public
appearance in 1940 Westinghouse Display World Fair [1], although it is not in the form as it is
today, as it is a form of a traditional game with no electronic display, although it is a traditional
game of “NM” in which players try to avoid picking up the last matchstick, in which in this case
a somewhat “artificial intelligence” run by a computer against a human player, which became the
trend of most early “video games”.

However, the first commercially available videogames, that are not part of Computer
technology projects or side projects and is intended to be consumed by the public as a form of
entertainment for earning profit for those involved in making it and is commercially successful is
“Pong” by Nolan Bushnell and Ted Dabney in the arcade video game market in 1972 and for the
home console market, Magnavox Odyssey. Although Magnavox Odyssey is released prior to the
testing of Pong by Nolan Bushnell and Ted Dabney, in which became the inspiration for the
creation of the Arcade Video Game.

During the early days of the Video game industry, it is divided between two main
markets, in which are the Home Console Market, pioneered by Magnavox Odyssey in which is

1
“Video Game History Timeline.” The Strong, 24 Mar. 2016,
www.museumofplay.org/about/icheg/video-game-history/timeline.
created by Magnavox, an American Electronic Manufacturer/Company which is a subsidiary of
Phillips, in which is based in the Netherlands. In the system of Magnavox Odyssey, videogames
are run through electronic circuits, in which displays three square dots on the screen of a
television, and is monochrome in colour, and doesn’t have any sound, and to have visuals,
players attach overlays to their television sets, and most of the interaction of the player and the
“game” is not always within the system as some of its games need external non-electronic
peripherals, such as dices and paper money, similar to traditional games, with the electronic
system as a supporting peripheral.[2]

As opposed to Pong, in which developed by Nolan Bushnell and Ted Dabney, in which
would be the Founder and Co-Founder of Atari, which will became the video game juggernaut in
the first golden age of videogames and lay the path for the golden age of arcade videogames
from 1978–1982, in which pong was an “Arcade” Videogame in which in concept is a form an
electronic game with a visual on an electronic screen, and have basic audios tones as sound, in
which player play a simulation of a table tennis with white bars that slide vertically across the
screen, with a white pixel simulating the ball. The objective of the game is to score 11 points by
passing the “ball” past the opponent’s bar. Pong is available mostly on public places like bars
and arcade halls (In which before videogames, has analogue arcade games such as pinballs), and
requires money to start to play each game. [3]

As pong became successful, and as every successful innovation, often lawsuits follow, in
which is shown by the lawsuit between Atari vs. Magnavox in 1974, which is due to the result of
Atari entering the Home Console market by releasing “Pong” for the Home Console in 1975,
which was distributed through SEARS. meanwhile Magnavox, held the patent for their version

2
Langshan, Mark (2014-12-13). "Magnavox Odyssey retrospective: How console gaming was born".
Digital Spy. Hearst Corporation
3
Morris, Dave (2004). "Funky Town". The Art of Game Worlds. HarperCollins.
of table tennis on the home console, which is distributed through the Magnavox Odyssey Home
Console, in which Magnavox sued Atari and several other companies, that manufacture and
commercialize of video game version of table tennis on the home console, hence in the lawsuit,
Magnavox argued that Atari has infringed the patents held by Magnavox, and they provided
evidence that Nolan Bushnell, one of the inventors of Pong, has attended the exposition of
Magnavox Odyssey, in 1966, based on their employee witness testimony and signature in their
guest book, to proof that Ned Bushnell, has the intention and opportunity to copy the Magnavox
version of table tennis, in which Ned Bushnell admits attending the exposition, however was not
[4]
impressed by the version shown by Magnavox.

The case was later settled out of court, due to the high legal costs, estimated to be 1.5
million US dollars at 1974, in which Atari at that time doesn’t have the funds to facilitate it,
hence the settlement was that Atari would become a licensee for US$700,000,and that other
companies producing “pong” clones would have to pay royalties, and that Magnavox would have
the rights of all games that were developed by Atari over the next year of the settlement (in
which Atari circumvented by delaying release of products for 1 year and withholding
[5]
information from Magnavox attorneys during their visits)

The issue of Intellectual Property would become more complicated over the years, as that
technology regarding the industry developed, so does the intellectual properties that became the
part of the industry, and so does the issues of intellectual property, as the industry now developed
to a larger industry, and that, the industry is more diversified than those of in the early years, and
a lot has changed, such as that the arcade video game industry has died in 1991, due to the
development of more personal videogames, such as better home consoles and the new Personal
Computer Video game market, with the introduction of affordable computers for home
consumption in the late 1980’s and early 1990’s. Currently the Industry is divided into 4 sectors,

4
Magnavox Sues Firms Making Video Games, Charges Infringement". The Wall Street Journal. 17
April 1974
5
Kent, Steven (2001). "And Then There Was Pong". Ultimate History of Video Games. Three Rivers
Press.
in which are personal computer games, console games, mobile games (one of the newest
industry, started with the advent of the smartphone with the release of the first iPhone), and the
Online Videogame sector.

Furthermore, the way the industry works also has changed, in which in the past games are
often developed by the first parties, in which are the ones who owns the means to run the games
(e.g. Atari making games for their own console, so does Magnavox), then came the advent of the
Third-party developers in 1979, with Activision, the first company to exclusively develop video
games, not bound specific console (except with exclusives, which is a marketing technique), and
furthermore, up to this point, videogames are often developed at a time period of mostly 6
months to maximum 1 year of development, and the release of titles is often, this changed in late
2000’s in which larger companies began to develop more ambitious games that require longer
development times and larger budgets and larger amount of developers involved, which will be
often referred by the industry as AAA games, in which is often done by larger developers such
as; Ubisoft, EA (Electronic Arts), Rockstar, to name a few developers, then in the 2010’s the
market for start-ups was booming in the tech industry, which indirectly affected the video game
industry, which resulted in a boom of Indie videogames and mobile games, which are often low-
cost development in nature, and their market target are often niche.

Furthermore, in 2016, the mobile gaming market is estimated to have taken $38 billion
in revenues, compared to $6 billion for the console market and $33 billion for personal
computing gaming [6] , in which is way larger than in the age of arcade games in which the
industry’s revenue is only 2 billion US Dollars in 1982 [7] , hence, due to this fact and that
Videogames, especially AAA games, took more capital and time to develop, and a lot of people
has stake on the product, Video Game companies will often be aggressive in protecting their

6
van Drunken, Joost (October 24, 2016). "Welcome to the New Era: Games as Media".
GamesIndustry.biz.
7
Making millions, 25 cents at a time". The Fifth Estate. Canadian Broadcasting Corporation.
November 23, 1982.
intellectual properties, hence there are often more lawsuits in the current era of the industry than
in the past, or through takedowns of their copyrighted materials from the video game (e.g. still
photos/ screenshots, videos of their videogame gameplay) though the means provided by online
websites such as YouTube’s Copyright strike, or DMCA (Digital Millennium Copyrights Act)
Cease and Desist, or lawsuits against infringing developers.

To further investigate regarding the aspect of intellectual property protection, one must
look to the definition of a videogame, both as in general definition and its defined contents under
intellectual property protection laws. Videogames, of itself as a word, can be defined as “an
electronic game in which players control images on a video screen” [8].

However, if investigated further under from an intellectual property perspective, it is

apparent that video games are not just a game that is run electronically to provide entertainment
to consumer, but is a complex works of authorship, potentially composed of multiple
copyrighted works[9], which these properties of a videogame are owned often by different legal
bodies, which made up video game as a commercial product.

If looked under Intellectual Property perspective, a videogame consisted of intellectual

properties, it contains 2 main parts in which are; [10]

1.) Audio-Visual Elements

8
Video Game.” Merriam-Webster, Merriam-Webster, www.merriam-webster.com/dictionary/video
game.
9
www.wipo.int/copyright/en/activities/video_games.html., Accessed 01/10/2018
10
Ibid
 Includes pictures, audios/sounds and video recordings, which provided the overall
look of a videogame and is protected under copyright laws.

2.) Software

A mean to manage the audiovisual element of a video game, which runs the video
game mechanics, physics, and gameplay, through showing sequences of
audiovisual elements depending on the player’s actions through a control
hardware (e.g. Keyboard, Phone Screen, Controllers, Joy Sticks), and may be
protected under copyright, patent or trade secret. [11]

Thus, from the definitions above, it can be further defined as an electronic game that
contains audiovisual elements and is run on licensed software or a proprietary software which
manages the audiovisual elements and permits users to interact with the different elements of the
game. [12], hence through such definition, it can be concluded that a videogame, is protected
under several intellectual property protection, in which to list some are; Copyright for the
Audiovisual elements of a videogame and patents for software. However, this depends on the
country in which it was registered, as countries often have differing perspective on the protection
of videogames on strictly as a software or an audiovisual creation like movies/films or both.

However, in cases of lawsuits regarding violations of visuals in a videogame, it is hard to

determine whether it is a violation of copyright or is a permissible act, as so far, the copyright of
visuals in a videogame only applies to the visual models and audio files of a game itself, hence
for example, if some videogame developer created a game that has the similar visual aspects, for
example the style of buildings, props, characters and weapons, it may be deemed as similar, but
not a direct copy and violation of a copyright that is held by a videogame company, as to some it
may be argued it is a direct copy of a copyrighted game’s visuals with the intention to profit from
the fame of the other games aspects.

11
http://www.freibrun.com/intellectual-property-rights-software-protect/, accessed on 01/10/2018
12
“Video Games.” Broadcasting & Media Rights in Sport,
www.wipo.int/copyright/en/activities/video_games.html.
 This is seen in cases such as Atari, Inc. v. Amusement World, Inc. in 1981 regarding the
similarities of Asteroids (developed by Atari) and Meteors (created by the defendant). Which
shows that ideas are not protected under copyright, however the expression of the idea, is
protected, hence Atari. Inc sought to protect its product, by registering it under audio-visual
work, through a video tape, hence the court accepted that it protected the visual presentation of
the game, but not the computer programme. [13][14]

In the end, the court ruled in favour of the defendant, based on idea/expression
dichotomy, holding the view that expression and ideas are inseparable form video games as a
media, however, the court concluded that similarities in this case are just the plaintiff’s ideas,
hence it is not copyrightable as it is just an idea.

However, there is an issue with this notion, in which is shown in the landmark case of
Atari, Inc. v. North American Philips Consumer Electronics Corp., in which the plaintiff
accused the American branch of the Dutch company of copyright infringement for creating a
video game (called K.C. Munchkin) very similar to the famous Pac-Man. [15][16] in which, the
court granted a preliminary injunction in favour of Atari as it concluded that Atari had a
likelihood of success on the merits, because it held that while a game is not protectable by
copyright as such, this kind of work of authorship is protectable “at least to a limited extent as
long as the particular form in which it is expressed provides something new or additional over
the idea”.

13
Andy Ramos, et al. “The Legal Status of Video Games: Comparative Analysis in National
Approaches.”
www.wipo.int/export/sites/www/copyright/en/activities/pdf/comparative_analysis_on_video_games.pd
f. Page 90
14
547 F.Supp. 222 (D. Md. Nov. 27, 1981).
15
Andy Ramos, et al. “The Legal Status of Video Games: Comparative Analysis in National
Approaches.”
www.wipo.int/export/sites/www/copyright/en/activities/pdf/comparative_analysis_on_video_games.pd
f. Page 90
16
672 F.2d 607, 617 (7th Cir.1982).
 The court noted that there were many differences between the visual parts of both games
but confirmed that “it is enough that substantial parts were lifted”, concluding that “no plagiarist
can excuse the wrong by showing how much of his work he did not pirate.”

Hence from these two landmark cases, it can be assumed that the protection of audio-
visual elements of the game itself are protected, however the usage of similar audio-visual
elements is allowed if they provided something new over the idea, to a certain extent, in which if
similarities are deemed substantial, then it is considered as a violation of copyright laws.

An example of a contemporary legal case of video game lawsuit based on its visuals, is
the case of PUBG (Player’s Unknown Battlegrounds) in which is developed by Bluehole a South
Korean company, who held the rights over the game, and its subsidiary, PUBG Corp. , in which
was established in the United States, vs. NetEase, , who is the developer of ROS (Rules of
Survival) and Knives out, , with its principal place of business in People’s Republic of China, but
is organized and existing under the laws of the Cayman Islands in which the case was filed on
the US District court, specifically the North California District Court, which is filed under Case
4:18-cv-02010-DMR, filed on 04/02/18.

In this case, PUBG Corp. filed the lawsuit on basis of Unfair Competition, Copyright
infringement and trade dress infringement [17], in which PUBG Corp. explicitly stated that
NetEase has "overall look, feel, and audio-visual style of [both games] closely mimic the stylised
realism of Battlegrounds." [18], and that PUBG Corp. accused NetEase, of releasing ROS and KO
(Knives Out) before the release of the mobile version of PUBG, in which PUBG claimed in their
lawsuit; "This act was intended to injure PUBG and has injured PUBG by unfairly using

17
https://wccftech.com/netease-counters-pubg-corp-lawsuit/, Accessed on 01/10/18
18
Taylor, Hadyn. “PUBG Corp. Files Lawsuit against NetEase for Alleged Copyright Infringement.”
GamesIndustry.biz, 6 Apr. 2018, www.gamesindustry.biz/articles/2018-04-06-pubg-corp-files-lawsuit-
against-netease-over-alleged-infringement-in-rules-of-survival-and-knives-out.
PUBG's own development efforts and consumer goodwill to capture mobile gaming market
share before PUBG launched its own mobile version of Battlegrounds.".

NetEase has replied to PUBG’s lawsuit under the basis of unfair competition, in which
they claimed that this lawsuit is an attempt of PUBG to monopolize the “battle royale” genre of
videogames, and argued that “Copyright only protects against the copying of original
expression—not ideas, not expression so inherent to an idea that it “merges” with the idea, not
elements borrowed from another creator or the public domain, and not scenes a faire that flows
from any idea, merged expression, or stock treatments of a given genre.” [19]

The case is still ongoing, and that in summary, it is seen that PUBG Corp. argues that
NetEase has copied its audio visual and elements, and its ideas on the basis that the dichotomy of
ideas and expressions are unseperable, as well as that NetEase has conducted an offense of unfair
competition to use PUBG’s own development efforts by releasing their games before PUBG
mobile was released. NetEase countered PUBG Corp. arguments on the basis that PUBG Corp.
has tried a monopolistic act by stiffing out the competition in the “battle royale” genre through
this lawsuit, and that the main lawsuit of PUBG Corp. against them is regarding the idea of a
videogame, rather than the audio-visual looks of the game, such as similar as the cases of Atari v.
Amusement World Inc.

Hence, in the background expressed above, it can be concluded that the protection of
audio-visual elements is a “grey area” as there is the issue that idea and expression dichotomy
are inseparable, however there is also an argument that ideas are somewhat protected if
substantial parts are lifted, as stipulated in the landmark case of Atari, Inc. v. North American
Philips Consumer Electronics Corp.

19
OpCit
I.II Research Question

Based on the issues that has been explained on the background and history section, there
are several issues that became the question in which intended to be analyzed by the writer in
which are;

1. To what extent does a game’s visuals are considered original?

2. How does the idea-expression dichotomy affects dispute resolution on

intellectual property dispute regarding videogames?

3.

II. Purpose of Research

The purpose that is intended by the writer in this research is divided into two purposes;
General and Specific:

II.I General Purpose

This research is conducted to actualize the writer’s intention to give a better and
deeper understanding as well to expand knowledge regarding the implementation
of Intellectual property protection on the Video Game Industry.
II.II Specific Purpose
The specific purpose of this research is to further investigate the application of
Intellectual property protection over videogames, specifically its audio visual
 elements as an aspect of Intellectual property and the issues in applying those
protection in cases, specifically in the United States, and other countries as
references.

III. Conceptual Frame

These are common concepts that will be used in this research in which are:
1.) Copyright
“The principal form in which a creative work is fixed and from which the work can be
reproduced or perceived, with or without the aid of special device” [20]
2.) Video Game
“An electronic game in which players control images on a video screen” [21]
3.) Audio-Visual Elements
Pictures, video recordings and sound/audio that expressed the overall look of a video
game.

4.) Idea/Expression Dichotomy

The argument that limits the scope of copyright protection by differentiating an idea from
the expression or manifestation of that idea. [22]
IV. Research Methods
1. Research Form
The form of this research is juridical normative research, in which is a research
that is conducted to positive laws that are both written and unwritten.
2. Research typology

20
Garner, Bryan A., and Henry Campbell Black. Black’s Law Dictionary. 10th ed., Thompson
Reuters, 2014. (page 410)
21
Video Game.” Merriam-Webster, Merriam-Webster, www.merriam-webster.com/dictionary/video
game.
22
Baker v. Selden 101 U.S. 99 (1879)
 The typology of this research is a descriptive research in which is intended to
describe the characteristics of an individual, situation or events or a certain group.
3. Sources of Data
The sources of data of this research is mainly secondary data, in which includes
official documents, court decisions, international conventions, books and legal journals,
which are obtained from either the internet, in the form of online publications or libraries.
4. Legal Sources
The legal sources of this research, as this is a legal research is mainly legal
sources in which are derived from Primary sources, such as Jurisprudence, from previous
legal cases, in which are sourced from various US Landmark Cases, or on-going cases
that discusses regarding the subject of this research
The cases that will be used in this case to list a few are;
1.) PUBG Corp. v. NetEase
2.) Atari, Inc. v. Amusement World, Inc
3.) Atari, Inc. v. North American Philips Consumer Electronics Corp

Other than primary legal sources, are secondary legal sources, in which is a
supporting source that supports the primary sources, such as articles, books and published
legal journals, as well as a tertiary legal source in which acts as an explanation to the
primary and secondary legal sources, such as legal dictionaries like Black’s law
dictionary.
V. Theoretical and Practical Use
This research is intended for theoretical use, in which are;
1.) For the Development of Knowledge
This research is intended to give benefit for the development of legal knowledge related
to the videogame industry.
2.) For the Academic Community
This research is intended to be beneficial for the academic community, especially to
students of the law faculty to gain more insight on the implementation of intellectual
property laws in the video game industry, and how those laws affected on how the
industry operates.
 This research is also intended for practical use for;
1.) For Legal Practitioners
This research is intended to be as a reference for legal practitioners in giving opinions
and solutions regarding intellectual property cases, especially those that revolves
regarding the video game industry.
2.) For the Public
This research is intended to give a perspective for the public, especially those who are
interested in developing video games or has general interest on the video game industry,
to know how intellectual property laws affected on how the industry works and the risks
and challenges in the video game development, based on existing cases abroad.

VI. Writing System

Chapter I Introductions
In this chapter, the background issues of the research will be discussed, such as the
Historical background, and the purpose of this research, conceptual frame, research methods,
purpose of research, as well as writing system regarding the data’s used in this research.

Chapter II General Review of The Video Game Industry development, parallel to the Intellectual
Property Laws.
In this chapter, the development of the videogame industry will be discussed, and how
intellectual property laws develop along with it to protect the intellectual properties contained in
a videogame, especially regarding Audio-Visual Aspects.
Chapter III General Review on Landmark cases regarding Intellectual properties in Video Game
Industry
In this chapter, the landmark cases that became the basis of future cases of Intellectual
property conflicts between game developers will be discussed further in relation to explaining
the issues of audio-visual infringement.
Chapter IV Analysis of Contemporary cases regarding Originality of Audio-Visual Elements in
Video Game
In this chapter, cases that are ongoing, specifically the case of PUBG Corp. v. NetEase
will be discussed, in which how the lawsuit applies the principles of Intellectual property, and its
future impacts of the lawsuit as well as to explain to what extent does a game is considered
original.
Chapter V Conclusions
In this chapter contained the conclusion from the research questions and suggestions.