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Analyzing Copyright Infringement Through PUBG v Fortnite Case


One of the most rewarding aspects of media outlets is reflected in video games. Every year, consumers spend over $25 billion to enjoy the interactions that teams of writers, organizers, and programmers have. With so much in doubt, it makes sense for the companies that create these video games to want to provide the best legal protection for their products. Copyright laws give video game developers the judicious right to reproduce, market, and turn off products based on their game’s code, characters, images, and exchange. Understanding the material legal structure is necessary given the ongoing, dynamic growth of the video game industry and the growing revenue it generates, which is now equal to the size of the film industry and outpacing the music industry in terms of overall revenue.

This article focuses on examining the relevant national legislation in order to provide video game engineers with information on the main current legitimate openings for the security of their rights and interests during the creation of a video game and its subsequent use and distribution. The video game market is worth many billions of dollars. As of 2018, the global gaming market was worth $137.9 billion, with roughly half of all revenues coming from mobile devices. It’s also important to note that after India’s national lockdown began, the founder of Ludo King reported a jump in active users from 13 million to 50 million. But as video games grow in popularity, there is also an increase in issues with infringement in this industry, and there are many different aspects of copyright that need to be taken into account in this regard.

They consist of songs, scripts for movies, stories, videos, artwork, and characters. Video games are therefore not made as single, straightforward works but rather as a collection of various elements, each of which can be copyrighted provided it reaches a certain level of originality and inventiveness (e.g., the characters in a video game, its soundtrack, settings, audio-visual parts, etc.). A video game’s main features, such as its plot, characters, audio-visuals, graphics, and some of the code, may be protected under various categories of “works” as defined by section 14 of the Copyright Act of 1957. Since the numerous categories of works protected by copyright are outlined in Article 2 of the Berne Convention for the Protection of Literary and Artistic Works, video games may also be covered by this provision.


The makers of Player Unknown’s Battlegrounds (“PUBG”), Bluehole, sued Epic Games, the developer of Fortnite, in South Korea at the start of 2018 for copyright infringement. Because some elements of the new Fortnite resembled those of PUBG, Bluehole claimed that Epic Games was responsible for copyright infringement. It was asserted that without contributing anything new to the genre, Fortnite simply duplicates the gameplay of PUBG. The genre in question is battle royale, a game mode based on a Japanese movie of the same name, in which a group of teenagers is coerced into a deathmatch by the government. Midway through the year, Bluehole abandoned its lawsuit against Epic Games. On the other hand, the dispute between PUBG and Fortnite brought up a crucial issue: can a genre be copyrighted?


A video game is made up of a variety of elements that combine to create the experience we as players have. All of the elements are contained in the software coding that creates a game’s user interface. Although copyright is already granted for software coding, other works created for video games, such as character designs, storylines, and scripts, may also be protected by copyright. No theme or concept depicted in a game can be copyrighted, as this is the general rule of copyright, which states that only its expression in literary, artistic, or musical form can invoke copyright protection. However, contents that are part of the video game are copyrightable. This is crucial to comprehend because, while a soldier character from a game based on World War I could be copyrighted, neither another soldier character from a game nor a game based on World War II could be restricted.


The Supreme Court of India ruled in the case of RG Anand v. Deluxe Films1 that the film could not be held to have violated the screenplay of the play. The justification offered was that although the concepts behind the script and the movie were the same, how they were expressed was very different. Therefore, it cannot be regarded as a copyright infraction. In the case of Mansoob Haider v. Yashraj Films2, the Bombay High Court reiterated that ideas are not protected by copyright. The similarity of ideas does not indicate a copyright violation because after removing differences, the remaining idea is not protected by the law.

The landmark American case Baker v. Selden3 established the idea-expression divide. Selden asserted ownership of the copyright for the fundamental accounting method he created and used in the book. Selden wanted copyright for his ideas, but he never asked for it for the first sentence of the book. The Supreme Court ruled that copyright can only be granted to the expressions and not the underlying theory, and that it cannot be extended to the “ideas” and “art” used in the book.


It should be noted that gameplay refers to the combination of game mechanics, rules, objectives, impediments, rewards, and punishments used in a particular video game and made visible through the various media shows produced when the player interacts with the game. It becomes essential to find a reasonable balance between the right of initiation and the continued advancement of masterpieces by granting reasonable copyright protection against encroachments from gameplay. An idea, theme, or concept depicted in a game cannot be protected by copyright, but the contents that are included in the video game can.

The idea versus expression doctrine states that only the literary, artistic, or musical expression of an idea, theme, or concept may be protected by copyright. The genre of a video game is an idea, not an expression, and copyright only safeguards the original manifestation of an idea—not the idea itself. We would be restricted to a small number of first-person shooters, role-playing games, racing games, and so forth if genres could be copyrighted, which would be restrictive for both developers and players. By granting a monopoly to the copyright holder, asserting copyright over ideas will further disrupt the market’s flow because only a small number of people will have total control.


Returning to the PUBG vs. Fortnite debate, the only criticism levelled at Fortnite was that it was created by Epic Games as a Battle Royale game. The concept of the Battle Royale genre is not new. In reality, it is based on the renowned Japanese movie “Battle Royale,” in which a despotic government imprisons a large number of high school students on an island, arms them, and orders them to kill one another until there is only one left. Even though PUBG’s developers may have released their battle royale video game before Epic, they cannot stop Epic or anyone else from developing their own interpretation of the idea, provided that there aren’t too many similarities to clone PUBG’s distinctive expression. The reason why Epic’s take on the genre differs so much from Bluehole’s is because of the company’s unique perspective on it.

The video games Fortnite and PUBG are very dissimilar. Both games have distinctive visual styles. Based on screenshots from PUBG, it might be challenging to tell it apart from other gritty, realistic shooting games because of its appearance. The colors in the game are typically earthy tones, the weapons look almost exactly like their real-life counterparts, and the clothing you can find by looting buildings is roughly what you’d expect to find in a hastily abandoned home. The realistic, battle-worn appearance is ideal because the game is meant to be intense. On the other hand, Fortnite has a very stylized appearance that embraces its computer-generated nature rather than trying to hide it.

In Epic Games in-house, you’ll find dozens of employees working on everything from the cross-platform functionality to the massive amount of artwork needed to make it all look as good as it does. The design is entirely cartoon-like, the colors are outrageously vivid, and the weaponry is absurdly overdone. While PUBG is an open battleground with 100 players hosted at once on a single server, with players collecting weapons, medical aid, driving cars, and in-game bombings with game restrictions, Fortnite includes a building mechanic with resource collection to build forts, bridges, and other structures to protect the player from bullets. These gameplay differences set apart both games and do not, therefore, violate the copyright of the PUBG developers.


Copyright infringement can occur if the overall idea of the game is expressed in too many similar ways, especially if there are other ways to express the same idea. Most creators are able to minimize their copying of a specific genre’s concepts and rules while also adding their own innovative expressive features. In other words, you could be copying the gameplay and idea, but you wouldn’t be liable for copyright infringement because it would be considered your expression of that genre, as you are replicating other games within the same genre but adding your twist on it, such as adding artistic graphic elements and creating unique characters that set the game apart.


1. AIR 1978 SC 1613.

2. 2014 (59) PTC 292.

3. 101 U.S. 99 (1879).

This article is written by Sanskar Garg, a last year student of School of Law, Devi Ahilya University, Indore.

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