Hello. I am attorney Shin Joon-seon from Cheongchul Law Firm.

Recently, the Seoul Central District Court acknowledged that while Nexon did not infringe copyright law in its lawsuit (2021가합560970) against Ironmace's released game "Dark and Darker" claiming copyright infringement and trade secret violation, it recognized the infringement of trade secrets and held Krafton liable for 8.5 billion won in damages.

Although the conclusion may seem simple, such rulings are made after thorough examination of each party's claims and defenses. In this blog, I aim to introduce the court’s reasoning behind its judgment regarding this case in an accessible manner and explore the specific copyright law and trade secret issues addressed in this case, and what points the court considered in making its judgment. First, I will look into the determination of copyright infringement.

[Question] The court, is it not a copyright violation of the game "Dark and Darker"?

[Answer]

1. Copyright Law Issues

One of the main issues in this lawsuit is whether the defendant Ironmace has infringed the copyright of the plaintiff Nexon's game "P3" by servicing "Dark and Darker". To determine this, the Supreme Court did not simply conclude by comparing the similarities of the two games but examined the following points: ①Is game P3 a computer program work? and ②Is the plaintiff Nexon the rightful copyright holder of "P3"? It detailed the legal principles concerning the attribution of copyright in game works.

1. Whether the plaintiff Nexon is the copyright holder of "P3" (Recognition of creator status of work for hire before publication)

This ruling set forth the following assumptions to judge Nexon's status as a copyright holder.

1) The work must possess creativity (Supreme Court ruling 2017. 11. 9. case number 2014다49180),

2) A game work is a composite work combining literary, musical, artistic, visual, and computer program works (Supreme Court ruling 2019. 6. 27. case number 2017다212095),

3) A work created by those engaged in a corporation or organization in the course of their duties under the planning of the corporation or organization (hereafter referred to as "corporation, etc.") is a work for hire (Copyright Act Article 2, Item 31), and the author of a published work for hire in the name of the corporation, etc. is that corporation, etc.; provided that computer program works are not required to be published (Copyright Act Article 9).

Under these assumptions, the court judged that ① "P3" is a game planned and developed by the plaintiff Nexon and thus falls under work for hire, and ② the game work is a combination of music, art, video, and computer program works, and considering the aforementioned copyright law provisions, it is reasonable to see that the plaintiff is the author only when the game work is published in the plaintiff's name, but ③ according to the legislative intent of Article 9 of the Copyright Act, even if it is a work for hire not published in the name of the corporation, if the work was intended to be published in the name of the corporation and it satisfies the creativity requirements, copyright arises even before publication, and it was judged that this copyright belongs to the creator of the work for hire, the corporation, etc.

In other words, the court concluded that even though "P3" was not completed and published in the market, it was a work for hire made with the intention of being released to the market from the early stages of game development, and thus Nexon’s status as a copyright holder was acknowledged.

2. Substantial similarity between “P3” and “Dark and Darker” (denial)

The court stated that abstract character types in novels, and events or backgrounds typically involved in dealing with certain themes cannot be protected by copyright as ideas (Supreme Court ruling 2000. 10. 24. case number 99다10813), and similarly, in the case of games, if the components of the game or their selection, arrangement, and combination are typical, they cannot be regarded as having creative individuality.

Thus, the court examined whether the game elements of the plaintiff's "P3" are commonly used elements in certain genres, whether these components were actually implemented in "P3", and whether these elements were expressed similarly in "Dark and Darker". Ultimately, it concluded that the corresponding components are merely abstract ideas or common components in typical game works and therefore cannot be protected by copyright, leading to the determination that copyright infringement does not exist.

①    PvPvE system, medieval fantasy worldview, dungeon environment, classes and magic systems, control methods, etc., most elements are generally used concepts in RPG and battle royale genres and lack creative individuality, and

②    Some features of “P3” (e.g., escape system, economic system, etc.) are incomplete or not implemented and the expression method in “Dark and Darker” is different, making it hard to recognize substantial similarity, and

③    Monster placement, item usage methods, UI, and battle motions are also methods typically used in specific genres, so they cannot be protected by copyright.

2. Conclusion and Practical Implications

In this ruling, the court clarified that the key to protection of game copyrights lies not in simple planning or genre characteristics, but in the specific expressions that reflect creative individuality. The determination of whether the components of a game are generally used elements in a specific genre was central to the copyright protection judgment, and it provided the standard that if the systems and planning elements in the game are generally used methods in pre-existing genres, they fall within the realm of ideas and cannot be protected by copyright.

Furthermore, while a game is a composite work (comprising literature, music, art, video, computer programs, etc.) and should be recognized as a work for hire of a corporation when published, it was clarified that considering the legislative intent of the Copyright Act, even pre-published works can be recognized as works for hire of a corporation if they were intended to be published in the name of the corporation and originality is recognized. Additionally, the existence of planning documents or directions alone does not guarantee copyright protection, as the actual implemented expressions become the core criteria for protection.

Practical implications that can be gleaned from this ruling include that, to protect game copyrights, a close examination of whether it may count as a creative expression is necessary. Simple game settings or genre characteristics (e.g., medieval fantasy backgrounds, PvPvE systems, etc.) are not eligible for protection and there must be substantial similarity in expressions that can be claimed as copyright infringement against other games.

Moreover, relying solely on ideas at the planning document or concept stage makes it difficult to assert copyright protection, and if the planning elements in the game are incomplete or not actually implemented, obtaining copyright protection becomes challenging. Therefore, collecting materials (e.g., code, design elements, specific implementations of UI, etc.) that can demonstrate the inclusion of specific expressions even in the planning stage is essential.

If certain game elements are commonly used in specific genres, it is hard to prove creative individuality. Especially, systems widely used in existing genres such as RPG, battle royale, and dungeon crawlers (e.g., class perks, escape methods, combat systems, etc.) are likely not to be protected. Hence, those claiming copyright infringement should emphasize that their game is not merely a simple combination of existing elements but is expressed in an original way.

Game developers looking for copyright protection should clearly define creative expressions right from the planning stage and emphasize elements that can gain legal protection. This requires systematic management of materials that can prove creative individuality such as contracts, project plans, and internal development records.

In the next article, I will examine the trade secret violation part recognized in this case and explore the basis on which the court acknowledged the amount of damages.

Attorney Shin Joon-seon has extensive advisory and dispute resolution experience in various copyright disputes. Please feel free to contact me if you need legal advice.