[China Intellectual Property News] Recognition of Whole Picture of Online Game as Assimilated Works Expressed by a Process Analogous to Cinematography - Comments on Appeal Case Involving Copyright Infringement and Unfair Competition - Hugen Star Information Technology Co., Ltd, et al v. Shanghai Zhuangyou Information Technology Co., Ltd, et al

November 15, 2017   China Intellectual Property News  

Page 9: Rights Protection. Comprehensive Section

(Authors: Lu Fengyu, Qin Tianning)

Case No.: [2015] Pu Min San (Zhi) Chu Zi No.191

[2016] Hu 73 Min Zhong No.101    

[Judgment Summary]

The whole picture of MU Miracle met the requirements on constitutive element of works stipulated in the Copyright Law of P.R.C. and could be deemed as works according to the Copyright Law. "Works created by a process analogous to cinematography" is characterized by successive motion pictures, which were seen in the whole picture of the online game involved. These pictures vary with user operations but never go beyond the game settings as creations independent of the game. Therefore, the unique whole picture of the online game constitutes a substantial element of assimilated works expressed by a process analogous to cinematography and MU Miracle constitutes assimilated works expressed by a process analogous to cinematography in terms of its whole picture.

[Case Review]

MU Miracle was an online game developed by Korea Webzen Global Digital Entertainment Inc. The Appellee (plaintiff in the original trial), Shanghai Zhuangyou Information Technology Co., Ltd ("Zhuangyou"), was authorized to operate the game and safeguard the rights thereof exclusively in China. In 2013, the Appellant (defendant in the original trial), Hugen Star Information Technology Co., Ltd ("Hugen Star"), developed an webgame called Myth Of Miracle without authorization and exclusively authorized the Appellant (defendant in the original trial), Guangzhou Weidong Network Technology Co., Ltd ("Weidong"), to operate it. Through comparison, it's found that in terms of map name and level setting, all map names (Level 1~360) of Myth Of Miracle were basically the same as those of MU Miracle; in terms of plan views and scenes of maps, two games have the same or similar color combinations and road maps; in terms of characters and their skills, they have the same or basically the same skill descriptions for swordsman, magician and archer, except description of toxic fire skills of magicians; in terms of weapons and equipment, 29 weapons and 105 equipment compared were basically identical in lines, colors and contours; as to monsters and NPCs, 47 monsters compared have basically the same style, color and effect, and 5 of 6 NPC styles in Myth Of Miracle were basically identical to corresponding NPC styles in MU Miracle. Believing that the whole picture of MU Miracle constitutes assimilated works expressed by a process analogous to cinematography, Myth Of Miracle has infringed upon its copyright and Weidong's act of using misleading contents in its advertisements, together with Hugen Star's act, has constituted unfair competition, Zhuangyou filed a lawsuit with the court, requesting that Hugen Star and Weidong stop the infringement and unfair competition, compensate for its economic losses totaling 10,000,000 yuan and reasonable expenses totaling 105,000 yuan, and publish a statement to eliminate the impact.

After the trial, court of first instance held that the whole picture of MU Miracle constituted assimilated works expressed by a process analogous to cinematography. Through comparison, it's found that the whole picture of Myth of Miracle was substantially similar to that of MU Miracle, meaning Hugen Star's and Weidong's act constituted copyright infringement. In addition, Weidong's act of using misleading contents in its advertisements, together with Hugen Star's act, has constituted unfair competition for false publicity. "Miracle" has become a unique name of well-known commodity. Using a similar name for the web game has constituted unauthorized use of the unique name of well-known commodity. Therefore, the court ruled that Hugen Star and Weidong should stop the infringement and unfair competition, compensate for Zhuangyou's economic losses totaling 5,000,000 yuan and reasonable expenses totaling 100,000+ yuan, and bear the civil liability of eliminating the impact. Hugen Star and Weidong instituted an appeal against the ruling.

After the trial, court of second instance held that the whole picture of MU Miracle met the requirements on constitutive element of works stipulated in the Copyright Law of P.R.C. and could be deemed as works according to the Copyright Law. "Works created by a process analogous to cinematography" is characterized by successive motion pictures, which were seen in the whole picture of the online game involved. These pictures vary with user operations but never go beyond the game settings as creations independent of the game. Therefore, the unique whole picture of the online game constituted a substantial element of and could be deemed as assimilated works expressed by a process analogous to cinematography. The advertising of Hugen Star and Weidong was likely to mislead users that Myth of Miracle was associated with MU Miracle and thus constituted unfair competition. Given that Zhuangyou withdrew its first-instance claim in the second instance that unauthorized use of the unique name of well-known commodity constituted unfair competition, the court adjusted the compensation for Zhuangyou's economic losses to 4,000,000 yuan and reasonable expenses to 100,000 yuan as appropriate. The rest was upheld.

[Case Study]

This case was China's first case involving recognition of the whole picture of online game as works expressed by a process analogous to cinematography, through which an active exploration was made to the judicial protection of online games within the existing legal framework.

1. The whole picture of online game constitutes independent works

According to the Copyright Law of P.R.C, the term "works" refers to original intellectual creations in the domain of literature, art and science that are capable of being reproduced in a fixed tangible form. In this case, the whole picture of MU Miracle was original in terms of level settings, map names, pattern of maps and scenes, settings of characters and skills, design of weapons and equipment, etc., and could be reproduced in a tangible form, which met the requirements on elements of works stipulated by the above law and could be deemed as works under the Copyright Law. Some characters and map names that have been used before didn't affect the originality of the whole picture of the game. 

2. The whole picture of online game constitutes "works expressed by a process analogous to cinematography"

The whole picture of online game constitutes works under the Copyright Law, type of which, however, should still be analyzed and determined according to the provisions of the Copyright Law. The Copyright Law classifies works according to their forms of expression, such as written works, musical works, fine arts works, and so on, which also provides for cinematographic works and works created by a process analogous to cinematography. According to Article 4 of Regulations for the Implementation of the Copyright Law of the People's Republic of China, "cinematographic works and works created by a process analogous to cinematography" means works which are recorded on some material, consisting of a series of images, with or without accompanying sound, and which can be projected with the aid of suitable devices or communicated by other means". Therefore, works are classified based on their forms of expression under the Copyright Law of P.R.C. For works created by a process analogous to cinematography, they are expressed by successive motion pictures, a characteristic constituent element that distinguishes them from those expressed by static pictures. Online game presents successive motion pictures in the course of running, just as works created by a process analogous to cinematography do. In this case, the scenarios of MU Miracle vary with player operations in different scenes. The scene is composed of pictures, words and other contents, and changed continuously with player operations. So to say, it consists of pictures with or without accompanying sound and is communicated by computer, similar to works created by a process analogous to cinematography in terms of form of expression. In addition, "...created by a process analogous to cinematography" mentioned in the Copyright Law describes the creation method rather than technique, which should include the method of integrating literary and artistic elements - as done by online games. Therefore, the whole picture of MU Miracle constitutes works created by a process analogous to cinematography.

3. Player's operation isn't an act of creating online game pictures

Online games are different from traditional works created by a process analogous to cinematography in the form of expression. That is, successive motion pictures of the former occur concurrently and vary with player's operations, featured by reciprocal interaction, while those of the latter are fixed and unidirectional, which don't vary with audiences. For MU Miracle, a large role-playing online game, the developer has created numerous game materials and developed numerous function modules rather than provide game tools. Player's operations, in essence, is an entertainment behavior in the set scenarios according to the designed game rules, in which process scenes are derived by the game engine automatically from the pre-created game materials according to the established rules. No evidence shows that players have added something else to the scenes. Different successive motion pictures of the online game are, in fact, different choices based on player's operations, which didn't go beyond the game settings as creations independent of the game. Therefore, whether the successive motion pictures are unique and fixed or vary with operations can't be used as a distinctive feature to recognize works created by a process analogous to cinematography. The whole picture of MU Miracle is still expressed by successive motion pictures as the works created by a process analogous to cinematography.

(Author affiliation: Shanghai Intellectual Property Court)