Some Legal Thoughts on Skin Shifting of Electronic Games

Yang Dejia, Chief Judge, Intellectual Property Court of the People’s Court of Haidian District, Beijing

When you key in “game skin shift” at the search bar of any search engine, you will always find criticisms of skin shifting for electronic games. Among others, they may condemn on how common skin-shifting has become in the game industry, analyze and warn on how it may lead to infringements, and regret to say that how it has strangled innovation in China. App stores and distribution channels are filled up with old games in new skins, which not only harasses the original game developer, but affects adversely the rights of players (or consumers). This even harms the healthy development of the game industry of the country. It has led to hot debates in the public.

So, what are we exactly talking about when we discuss the skin shifting of games? What do we expect to stop? How should we apply the law to stop it? In the following discussion, this author is going to explore briefly into these questions.

Vague boundaries of fair use: What is skin-shifting? 

For electronic games, skin shifting can be best described as “the same old stuff with a new label” or “a change in form but not in content.” The key is to discern between the “new label” and the “old stuff,” or which is changed and which is not. For this sake, it is necessary to understand what a game consist of. As far as this author understands it, a game can have four layers, namely the soul, the bone, the flesh and the skin, which go from the deep to the shallow.

The first layer is the “soul,” which means the class or mode of the game, such as, eliminations, cards, fights, adventures, role-playing and sports. The soul determines the genre and how the game may be developed generally on the other layers.

The second layer is the “bone,” which means the game engine or the general framework of the game. According to baike.baidu.com, a game engine is “an editable PC game system that has been compiled, or the core components of a few interactive real-time graphic applications. This system provides developers with various tools to write games, so that without starting from scratch, they can write game programs easily and fast.” [1] Many game companies have adopted the business model that on the basis of a game engine developed by others, they add to the system their own particular checkpoints, models and graphic effects, so that they produce a game efficiently at a low cost.

The third layer is the “flesh,” which means the game design. On the basis of the “bone,” i.e. the game engine, the system is added with rules and playing details, as well as characters, props, plots and other settings. This layer is concerned mostly with stuff on the thinking level, that is, what a player can feel or experience by thinking, exploring, summarizing and abstracting through the game.

The fourth layer is the “skin,” which is the resources that we often talk about. It is concerned with things on the sensing level, that is, what a player can directly perceive or receive with eyes and ears during the game, including images, sounds, animations and words.

These four layers are combined to create a specific personalized game that is sufficiently different from any other game.

From the perspective of the Copyright Law, these four layers come with different statuses and meanings.

The first layer, the “soul” or the genre of a game, is the deepest and the most fundamental. It is in the range of thoughts and creativities, and cannot be protected by copyright. Forexample, as an epoch-making innovation, Wolfenstein 3D (1992) was the earliest first-person shooter video game in the game history. However, its developer might not stop others from developing other games in the same genre. The law protects what lies under the tip of the pyramid, that is, the plan that implements the thoughts, ideas and creativities, and the unique expression that expresses them in various forms.

For the second layer, the “bone”or game engine, the core is the codes which are protected as computer software. There are far fewer infringements on this layer now. This author supposes that there are two causes. 1. From the perspective of the right owner, there are few companies that have the strength to develop game engines. Also they are quite aware of their rights and have relatively complete precautions in place; and 2. From the perspective of an infringer, due to the small number of game engine developers, any infringing act can be discovered easily, with a high risk and serious consequences.

Next, let’s skip the third layer and come to the fourth layer, that is, the “skin” or the resources of a game, which include scripts, music, fine art, photography, and movie like videos (such as, interludes and CG animations). In recent years, in practice, it has been very rare that an infringement occurs on this layer to directly copy the skin. This is probably because to do so would be too obvious. It can be easily discovered and found out to be an infringement.

Now comes the third layer, that is, the “flesh,” which leads to most of the questions and disputes in infringement determination.

Specifically, the infringement on this layer means that one copies the characters, plots, and ways of playing and rule settings of a game by replacing its sounds, images and scripts, so that a new game is created that keeps the flesh but is under a new skin.

The flesh is the link between the soul, the bone and the skin. It compares to the game design which is located in the area that connects the game genre, the game engine and the game resources. This is the transition area between thoughts and expressions under the Copyright Law. For various infringements of electronic games, skin shifting is the most favored for causes in two aspects. In the market aspect, games developed through skin shifting cost less, are launched quickly, and can be used to follow up with any hot spot, grab a share of the market, and make a profit fast. In the legal aspect, skin shifting is much more concealed and its infringement determination is very complex and highly uncertain.

How to determine the infringement or not of a game with skin shifting 

Not all games with skin shifting are a result of infringement. Many skin shifting acts have been legally authorized by the original game companies, and some of them are even performed by the right owners. The skin shifting act discussed herein, which should be stopped, means to use the game of any other person as the basis and replace only some of the game resources without due authorization, so that the game is repackaged and operated as a new one.

Then, how to determine the infringement or not of a game with skin shifting from the perspective of the Copyright Law? For traditional and genre works, it is often done by using the “3+2” method, that is, the syllogism plus the thought/expression dichotomy.

The first step is to abstract, that is, to remove from the two works for comparison the ideas not protected under the Copyright Law by using the thought/expression dichotomy.

The second step is to filter, that is, to remove contents that appear in both of the works and are in the public domain, so that they are not included in infringement determination. The third step is to compare, that is, to compare between any remaining contents of the two works after the first and second steps. If the two works are still substantially equivalent, the infringement is decided.

Then, will this “3+2” method apply also to the game case? In the Hearthstone case, the court held that “the combinations of cards and decks as claimed by the plaintiff are rules and ways of playing in effect. Considering that only expressions of thoughts are protected under the Copyright Law and that the protection does not extend to the thought per se, this court accepts the counterplea of the defendant.” [2] This paragraph shows that in the “abstract” step of syllogism, the court attributed a certain part of what the plaintiff had claimed to thoughts so that no copyright protection could be provided. It makes it clear that in judicial practice, such old ways can be employed to solve new problems with games. As a matter of fact, skin shifting has long existed in disputes involving literature, movies and TV programs. The ways and thinking above that have come into existence progressively and are recognized extensively in solving these traditional disputes may be helpful when dealing with the skin shifting issue of games today.

Moreover, it is worthwhile to compare between the plagiarism in traditional cases and the skin shifting in today’s games. Generally speaking, plagiarism can be at the low and high levels. The low-level plagiarism means the plagiarism in its literal sense, that is, to copy the original words on a large scale.

The high-level plagiarism means that the two works can be different only in form, but are the same in substance. Despite the different wordings, they are equivalent substantially. For electronic games, the low-level plagiarism compares to the direct copying of the skin, that is, to directly imitate the game resources of another person. The high-level plagiarism compares to using the flesh but shifting the skin of another game, so that the two games may look different, but give substantially the same playing experience. Therefore, our discussion of the infringement or not of skin shifting may right go back to the similarity or not between two games in substance.

For this, Section 10. 10 “Determination of Substantial Similarity,” the Guide to the Trial of Copyright Infringement Cases issued by the High People’s Court of Beijing in 2018 provides that to determine any substantial similarity or not between two works, comparison should be intended to find out similarities in what the authors accept/reject, select, arrange and design. But it should better not be done at the thought level with respects to the themes, creativities and feelings. The provision goes on to give a list of factors to consider, including the setting of characters, the relationship among them, and the logic of the plot, in order to determine any similarity in the logical relationship, any special detail design and any essential expression. It is not hard to see that “what the authors accept/reject, select, arrange and design” can be found in the “flesh” of a game, and the “list of factors to consider” can have their corresponding part in the game design. Now that there are mature legal tools available to deal with the skin shifting issue, it is not necessary to seek far and wide for what lies close at hand. The wheel does not need reinventing.

It is certain that despite the way of thinking and the list of factors to consider herein above, we have to deal with the nerve-wrecking issue - what are thoughts and what are expressions, when determining any substantial similarity between the designs of two games. As stated, this is not any new or unique issue only with games, but an old timer that appears in almost every plagiarism-related dispute. As there is not and will never be any silver bullet to handle it, we have to rely on our reflection and judgment in individual cases.

As to whether the rules and ways of playing a game are thoughts or expressions, which is much debated, this author believes that the issue should be analyzed separately in light of the specific conditions of individual cases. It cannot be simply concluded that any and all the rules and ways of playing are thoughts and thus not protected on account of the court decision in any single case.

In particular, as the “rule” and “way” to play a game are still vague concepts and as unified clear understandings are yet to be provided with respect to their intension and extension, no one size can fit all. This is because the rules in the mouth of Party A may be totally different from those in the mouth of Party B, and the ways of playing in one case may vary much from those in another case.

This is also because, theoretically at least, when rules and ways of playing are made more and more concrete and specific, they would, on a certain stage, be no longer creativities and ideas on the thinking level, but instead become specific personalized expressions of these creativities and ideas.

How should we apply the law to stop it? 

Last but not least, the doctrines to apply the Copyright Law and the Unfair Competition Law to skin shifting-related disputes.

First of all, no specific damaging act can infringe upon the copyright and compete unfairly in the market at the same time. Second, no party may be given the option to choose between the Copyright Law and the Unfair Competition Law. Then, how are the two laws related to each other in their application? Generally, the possibility to apply the Copyright Law should be considered first, if the consequences of infringement are single and specific. In trying a copyright infringement case, the chain of thinking can be divided into 4 stages: 1. does what the plaintiff claims constitute a protected work; 2. who owns the work; 3. does the alleged act constitute an infringement; and 4. what are the liabilities for the infringement.

When is the chance for the Unfair Competition Law? First, only when it comes to Stage 1 of applying the Copyright Law in the hearing, and when the trial has to be stopped because the alleged contents cannot be protected, then it becomes possible that the alleged infringing act may enter the range regulated by the Unfair Competition Law.

Once it passes Stage 1 of copyright protection and enters Stage 2 of ownership determination, there would be no chance to apply the Unfair Competition Law.

Second, even if the trial cannot proceed in the Copyright Law range due to the unprotected contents at Stage 1, the double-negative test should be conducted to investigate the applicability or not of the Unfair Competition Law. The reasons that the alleged contents are not protected should be examined. Is it because the alleged contents are thoughts or due to any explicit legal provisions (if for example, the alleged contents are news releases or numerical tables in general)? If either of the answers is positive, no remedy under the Unfair Competition Law may be sought; otherwise, there would be the risk that the Copyright Law is made unfeasible. Only if any issue remains unresolved after the level-to- level screening herein above, the Unfair Competition Law may be introduced to give an answer. The same rule should apply in the trial of skin shifting-related cases.

（Translated by Ren Qingtao)

Note:

1 Please refer to the defi nition of “game engine” at https://baike.baidu.com/item/游戏引擎/620879?fr=aladdin. Last accessed on August 21, 2018.

2 Please refer to the Civil Judgment (2014) Hu Yi Zhogn Min Wu (Zhi) Chu Zi No. 23.