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New Copyright Case Filings Roundup (June)
Four new copyright cases of interest have been filed so far in June that involve video games. The topics include: (1) allegedly extensive copying of a photographer’s work in Capcom’s Resident Evil games; (2) unauthorized use of copyrighted music in files uploaded by players in Roblox; (3) cheating software for Bungie’s Destiny games; and (4) a cash-prize gaming platform that’s definitely-not-gambling, suing a competitor for ripping off its platform interface that’s also definitely-not-gambling and advertising materials.
Judy Juracek, a Connecticut resident, has been a professional scenic artist, scene designer and photographer for much of her career, working on numerous well known film and TV productions. As part of her work, she traveled around the world photographing unique decorative surfaces and features as part of her research related to set design. She grouped these photographs into a book and CD-ROM called “SURFACES.” She then licensed high resolution copies of various photographs to architects, designers and others for commercial use.
In her complaint against Capcom, Juracek alleges that Capcom used her photographs extensively in Resident Evil, including on the cover of the game itself:
Juracek gives lots of examples, including in-game environment shots allegedly copied from her photographs of real-world surfaces, e.g., a unique door design and a stained glass window:
While this may look like salacious copying, it raises a tough question for the plaintiff: What part of these allegedly copied works are original to her. In other words, did Capcom’s designers copy her constituent original elements or did they instead reproduce works that others originated, e.g., the door design, the stained glass window design, etc. If you want to go through this thought exercise, check out the lengthy exhibit to the complaint here with all the images and side-by-sides.
Most likely, Capcom will want to file a motion to dismiss or MSJ on the grounds that, even if their designers copied everything that’s allegedly copied, there still wouldn’t be a claim for copyright infringement because the plaintiff didn’t originate any of the original elements that were copied. I haven’t looked at all the images in detail yet, but at first blush, this sort of motion looks like it might be well taken.
The National Music Publishers’ Association has sued Roblox, seeking $200 million in damages, alleging that Roblox built its platform “on the backs of unpaid music creators.” The complaint uses some vituperative language, alleging that “Roblox actively preys on its impressionable user base and their desire for popular music, teaching children that pirating music is perfectly acceptable.” The plaintiffs further allege that Roblox “engages in copyright infringement on a massive scale” by deliberately creating a centralized sync library of unlicensed songs to be used in the game.
To defeat the anticipated DMCA safe-harbor defense that Roblox will presumably assert, the complaint alleges that “it is Roblox—not users—that consciously selects what content appears on its platform” and that Roblox employs “over a thousand human moderators to extensively pre-screen and review each and every audio file uploaded.” As an aside, the complaint alleges that Roblox has even failed to register an agent with the Copyright Office (a statutory requirement for claiming DMCA safe-harbor).
Roblox has already publicly responded that they “do not tolerate copyright infringement” and were “surprised and disappointed by this lawsuit.” However, if it’s true that they haven’t registered an agent with the copyright office and that they’re actively reviewing/moderating the content, Roblox is going to have a very tough time relying on the safe harbor provision of the DMCA, which among other things, requires that the platform be passive and not a curator of content. It looks like Roblox may have a real problem with that.
After its recent success against GatorCheats, Bungie has now turned its sights on another cheat developer, AimJunkies. The complaint itself is pretty standard stuff, but it’s interesting (and good) to see game developers take a continued, strong stance against cheating.
Big Run Studios describes itself as a studio that makes “cutting edge mobile games for traditionally underserved audiences.” It developed Blackout Bingo (f/k/a Blackout Blitz), which became a top 25 game in the iOS App Store within 4 months. The game features “real world rewards and cash prizes (where available)” powered by Skillz, a platform for competitive mobile games. The complaint alleges that defendant AviaGames “slavishly copied original and distinctive elements” of Big Run’s Blackout Bingo game to build an infringing copycat game called Bingo Clash:
The complaint assiduously attempts to depict the Skillz platform as a legitimate business and, to that end, contains numerous allegations about how Skillz is revolutionizing “eSports” with its platform and is helping to bring “eSports into the maintsteam.” Skillz further boasts that it offers over “$100 million in prizes each month” and that “Skillz accounted for 46% of all eSports prizes awarded.” While Skillz claims that its games are legal in 38 states (it even has an FAQ section called “Why it’s legal”) since it features games of skill and therefore aren’t gambling, it isn’t without critics. Last year, two users of the platform sued Skillz under several fraud theories and complained that they lost tens of thousands of dollars, struggled with gambling addiction because of games they played on the platform, etc., and that “Skillz’s advertisements fraudulently concealed the possibility that users would lose money playing its games.” Ball v. Skillz Inc., No. 220CV00888JADBNW, 2020 WL 6685514, at *1 (D. Nev. Nov. 12, 2020). In November, that case was ordered to arbitration and an appeal of that order is pending.
Two additional notes of interest from this month include:
The “G.I. Bro” (Huffman v. Activision) case is going to trial this month in Texas; and
A Northern District of California judge transferred the “Soul Ja Boi” dance emote case to the Northern District of Georgia after finding that venue was improper because the cease and desist letters sent to Take-Two did not constitute purposeful direction of activity toward California. Take-Two Interactive Software, Inc. et al v. Sims, 4-20-cv-04441 (NDCA 2021-06-14, Order) (Jeffrey S. White).
[Thanks to Docket Navigator for access to the pleadings.]