1 April 2021CopyrightAlex Baldwin

Litigation in the ‘hyper-casual’ game market

“Good artists borrow, great artists steal” is an adage that only goes so far in the mobile games market.

Copyright law concerning “originality” for legacy media is well-established, but legal precedent for the ever-expanding mobile games market is still in its infancy.

The past few years has brought with it the emergence of the hyper-casual games market, characterised by extremely short and simple experiences targeting demographics that don’t normally play video games.

Online app stores like Google Play and Apple App Store are home to thousands of “copycat” games, developed to cash-in on successful trends and make a cheap profit.

And with some games working to week-long development times, litigation proceedings lasting months are hardly desirable. But things could be changing.

One of the biggest publishers in the space,  Voodoo.io, submits “almost daily” Digital Millennium Copyright Act (DMCA) takedown requests to remove copycat products from various digital storefronts.

In September 2020, Voodoo won its biggest legal dispute yet. Securing €125,000 in damages in a French court from a competitor for copying one of its free-to-play titles “Woodturning”.

Voodoo’s counsel argued that game publisher  Rollic and developer  Hero Games’ title “Wood Shop” shared more than a passing similarity with its own game. The court awarded damages and ruled that the game be removed from the Google and Apple stores.

WIPR caught up with Voodoo’s legal and general counsel, Nassim Ameli-Jouffroy and Senay Gürel, to find out more about the case, the hyper-casual games market, and bringing litigation against rival gamemakers.

WIPR: What is the distinction between the 'casual' and 'hyper casual' gaming market?

Nassim Ameli-Jouffroy / Senay Gürel: The hyper-casual gaming market comprises cost effective, rapidly produced and quick-to-play games with very simple mechanics. These games dominate mobile download charts around the world.

Hyper-casual games are designed to be easy to play and enjoyed within bite-sized sessions, making them appealing to players with limited time on their hands.

Casual games are instead focused on longer play sessions with more complex mechanics and narratives. Compared to hyper-casual games, they have an extended development cycle that can last from months to years and are generally aimed at a more targeted audience of players.

How often are Voodoo’s games copied?

For every title that we release, we can usually identify between five to 50 copies, if not more.  Some copies are hurtful, while others are not. It has a lot to do with how much the developer is pushing for its copy to be visible in the charts. As such, we prioritise the takedowns we file, and if a takedown notice is not enough, we can decide whether to take further action to defend our rights.

This doesn’t just happen on the Apple and Google stores; they are also on the Nintendo Switch Store, Amazon—“app markets” of all sorts and websites that illegally use our licences for our games to be playable online.

What are the implications of the ruling against Rollic and Hero games?

It set a legal precedent for the first time as to what constitutes improper conduct in the sphere of hyper-casual mobile gaming. Courts—at least in France—are now sensitive to the practice of “copycats”. They now consider copying distinctive features of an original game, such as to render the copy confusingly similar, is punishable by law. Inspiration is one thing, copying is another.

This was a very welcome decision as until now, there were no rules governing proper practices in this industry.

A copycat does not need to be a “copy and paste”. If the game is a “copy and improve”, but creates confusion for consumers who might think the two games offer the same gameplay, and the second game positions diverts consumers away from the original towards itself, courts could consider such a game to be a copy.

The judgment also raised the question of what is protectable in mobile games. There are still milestones to reach in order for hyper-casual games to receive the protection they deserve. The ruling put into perspective the limits of intellectual property laws in terms of protection for an industry that is fundamentally creative.

The criteria for “originality” found in various legal systems were decided where mobile gaming, let alone hyper-casual gaming, was in its infancy. Judges can consider a “simple” design as a lack of originality, which undermines the developer’s creativity and discredits their livelihood.

Copyright laws should be more inclusive and allow for game developers to have their rights recognised—and for that, the context in which a game is created should be taken into consideration. If you are the first developer to create an autonomous sensory meridian response (ASMR) game based on woodturning that has been downloaded by millions worldwide, should that not be taken into account for “originality”?

Though Rollic and Hero have appealed the decision, setting that precedent was one of the most important things to come out of this case, and infinitely more important than the financial reward.

We expect the ruling will have a tangible and positive impact on the hyper-casual space in the long term, and we’ve committed ourselves as a business to working towards sanitising the market of similar practices and pushing forward protection of games under IP laws.

As there is no specific legislation in place for this right now, it is still a long road to efficiently stop copycat games, but we are hopeful our efforts will gradually pave the way.

What is the process for removing copycat games?

Technically, the first step is to file a takedown request with the platform or website the copy might be on. However, these platforms are reluctant to act as judges of copyright infringement, and unless you have a clear IP title (eg a trademark or patent: protection titles that are ill-adapted to games) they will generally let the parties settle the matter themselves.

When this process is not successful, you have to resort to litigation. But litigation is costly and not suited to the lifetime of hyper-casual games, which all have short lifespans and face months of procedural hurdles, especially when the case is international.

Moreover, even when your damage is global, it is difficult to defend your rights: each country has its own IP laws with courts interpreting those laws in different ways. Because of this it’s not always possible to predict what the final verdict will be when pursuing the removal of a copycat game.

But again, judges have started adapting to the fast-paced nature of hyper-casual games.

They appreciate that two similar hyper-casual games fighting in the charts is truly damaging to the original game as it takes users away and pushes them towards the new game, and this is where judges have started to issue temporary removal orders of copies.

This is normally done based on evidence that proves, beyond a shadow of a doubt, that your hyper-casual game used the distinctive features first.

What would you suggest to speed up the litigation process?

An industry-specific process to allow for an efficient and fair resolution of disputes would be a step in the right direction with regards to hyper-casual mobile gaming.

Impartial experts could act as mediators and would have the right to determine global damages beyond the territorial restrictions of IP law with a procedure that would not last more than two months.

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