The Boundary Between Plagiarism and Borrowing is Blurry
Fortnite, the phenomenal video game that gains vast popularity worldwide, had recently hit more than 350 million total player counts. Being so successful as a battle-royale game, Fortnite is also at the center of controversies.
In August 2021, Epic Games, the creator of the game, released a temporary “imposter” event mode in Fortnite. In this mode, 10 players are assigned to play together, with 2 of them acting as imposters and the remaining people being agents. Imposters know the identity of all other players, while the agents only know their own identity. The imposters’ mission is to kill all agents covertly without being seen, while the agents need to find who is the imposters. Players can come together and discuss each one’s identity and then vote out anyone who is believed to be an imposter.
While some people were happy with Fortnite’s new event, some of the others were not. On the same day of the event, Gary Porter, the programmer of Among Us, published a tweet that sarcastically blamed Epic Games’ blatant copying. “It’s okay tho they flipped electrical and medbay and connected security to the cafeteria”, he said. [2] The Twitter user Stephen Parker commented on Epic Games as “not adding mechanics/gameplay that is similar to other games in the right way”. [3]
So, what is Fortnite, and what is Among Us?
Fortnite
Fortnite is a multiplayer shooting game created by Epic Games. Different from most of the other shooting games, it features a cartoonish style. Players can not only use weapons to shoot with each other but also destroy structures on the map, loot for resources and build their own structures.
Fortnite features 3 permanent modes: battle royale, survival, and creative. In battle royale mode players are put into an island and they compete with others until being the last standing people. Survival mode is essentially PvE in which players shoot zombie-like creatures and protect their bases, and unlike other modes, it is not free. Creative mode allows players to host their own servers and let other players come in. The host can customize the map and make the game rules freely. There are also some temporary event modes, which can be seen as officially-hosted creative modes. The Imposter mode is one of them.
Among Us
Among Us is a 2D social-deduction game created by InnerSloth. The players act as “crewmates” and are placed in a “spaceship”. Some of them are “imposters”, whose task is to kill all good crewmates. When someone finds dead crewmates or presses a button in the main room, people can meet together to discuss and vote out anyone who is believed to be an imposter. There are several maps in the game, and the most famous and classic one, “The Skeld”, is the one whose Epic Game was accused of copying from.
You may already find a lot of similarities between Among Us and Fortnite’s Imposter mode, but does it necessarily mean that Fortnite plagiarized Among Us, or is it just kindly borrowing?
The controversy of imposter mode emphasized some important issues for us to think: how should we define the boundary between infringing intellectual copyright and creatively adopting elements in video games? Is there a clear rule for defining that?
To think about the answer to this question, we should first become familiar with video games’ copyright. According to the US government, copyright is defined as “a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression” [4] Several parts of a video game are protected by the copyright laws, including the code which falls under the category of literary work, and the art and sounds that are protected as audiovisual works. [5] When judging copyright infringement cases, the court usually uses two approaches: the subtractive method and the totality method. The subtractive method means that the court will first remove the elements in the game that is not copyrightable, then determine if the remaining part is similar. In contrast, the totality method involves comparing the two works as a whole to determine whether there is plagiarism. In reality, the courts use a mixture of them to determine each copyright infringement case. [6]
It is not hard to realize that the first approach usually favors the defendant, while the second one often favors the plaintiff more. In the case of Fortnite’s imposter mode, if InnerSloth, the creating company of Among Us, sued Epic Games and the court uses only the subtractive method, then the judge will focus on the elements of artwork, sounds, and source codes. For the artworks and sounds, these two games are obviously different. For the source code, though the Fortnite Imposter mode and Among Us share similar stage design and playstyle, the actual implementation and code structure will be largely different since Fortnite is a 3D game while Among Us is in 2D. On the other hand, if the judge emphasizes on totality method, then he will focus on the general ideas and design of the two games and will find that the map and playstyle are almost the same. In this case, InnerSloth is favored and Epic Game may need to explain the differences in playstyle to the judge.
Let’s see another example. Many of you have played, or at least heard about the game Candy Crush. Released by King in 2012, Candy Crush has been one of the most successful video games in history, as over 93 million people were playing it in 2014. [10] The player needs to swap adjacent candies to match 3 same-colored candies in a row. By doing this, those candies will be eliminated and the candies at their top will drop down. Matching more than 3 candies will have even better effects. For instance, matching 4 in a row will turn them into a “striped candy”, and when such striped candy is matched again the whole row will be eliminated. Meanwhile, matching 5 in a row will produce a cake mix cookie, which can randomly send lightning to many candies in the arena and crush them.
Upon the release of the game, many people condemned King as copying Bejeweled, a game made by PopCap and was released in 2001. In a Reddit post discussing the removal of Pac-Avoid, another game by King, the Reddit user “z01z” sarcastically commented: ”Really? Then how is Candy Crush not exactly like Bejeweled?”. Another user replied: “Because sometimes the layout is slightly different! That means it’s different right? Right…?”. [11] These times, things get exactly opposite compared to Fortnite’s case. As people doubted and criticized King more and more harshly, John Vechey, the cofounder of PopCap, stood out and said that he “didn’t consider King to be cloning PopCap’s games”, and the relation of two games are just like Half-Life and Quake. [12]
Though PopCap itself defended King and explained the situation to the public, is it means that there is absolutely no copying? To solve the confusion, let’s dig into that.
As stated above, in video games things like audio and codes are copyrightable, but not the idea. In other words, “copyright protects the expressions of ideas, but it doesn’t protect the ideas themselves”, which is called “idea-expression dichotomy”. [13] Actually, both Candy Crush and Bejeweled are in the genre of “match-three” game, which means that the players manipulate the tiles to match 3 tiles of the same type together. The first game of such genre is Shariki, a game released in 1994 on DOS. [13] Based on such an idea, even if King ever plagiarized, the game being copied should be Shariki instead of Bejeweled.
Besides the legal aspects, the concept of the “idea-expression dichotomy” has its important implications. As seen in the picture above, Shariki, the ancestor of all match-three games, has a plain, undecorated appearance. The reason for that can be the developer’s lack of artistic instinct or the limited computational power that was unable to render complex graphics at that time. As time passed, more and more match-three games emerged because of the “idea-expression dichotomy”, which lead to continuing refinement of the idea and possibly re-invention based on the original idea.
For instance, in the 1990s’ Shariki, the user interface is austere, and the tiles are just simply a group of colored circles. However, as the 21st century comes, Bejeweled, a descendant of Shariki, emerged. This time not only do the graphics become a lot more pretty and the plain circles are replaced by colorful, shining gems, but also the game mechanics are extended. The basic rules are still matching 3 in a row, but this time matching 4 in a row will create an explosion, and matching an “L” or “T” will make a “star gem” that eliminates a row and a column. Candy Crush, published in the 2010s, is even better designed as King learned from the previous games and made refinements. The graphics are a further improvement compared to Bejeweled, and the sound effects are gorgeous. Also, the game rules are different, as shown previously. One can imagine that if the basic idea of a game is copyrighted and other companies cannot borrow from that, then we would still play a 1990s game even though it is 2022 now, because all other games, like Bejeweled and Candy Crush, would be strictly illegal.
Back in the case of Fortnite and Among Us, when we apply the concept of idea-expression dichotomy in this specific context, things get a little bit complicated. The idea of both Fortnite’s imposter mode and Among Us are simply “bad guys kill good guys and good guys try to vote out bad guys”, similar to the classic social-deduction party game Werewolf. For expressions of the idea, one can argue that their expressions are the same, or at least extremely similar as Epic just “flipped electrical and medbay and connected security to the cafeteria”. Others can argue that they are different by emphasizing how such change in map may considerably affect the whole gameplay, and how a 3D expression of the map and the idea are different from 2D. However, keep in mind that the companies, especially the large ones like Epic, make efforts not only to make their game original in law but also to make their potential customers believe that their games are ethical and not created from shamelessly copying other games. As a result, Epic Games eventually admitted publicly that the imposter mode was “inspired by Among Us from InnerSloth”.
In conclusion, it is often hard to demarcate between plagiarism and appropriate adoptions of common elements, and what people think as plagiarism is sometimes not. As a result, the law workers are consistently working hard to make such boundaries fairer and clearer. However, because of the complexity of the intellectual property, it should never be treated the same as real-life property. “It has never been the case, nor should it be” that creative property is the same as other properties and “owners were given the same rights as all other property owners”, said Lawrence Lessig in his book Free Culture. [7] Elements of creative properties, such as some insights and inspiration, may be borrowed by other content creators in an appropriate way. In another word, creative properties like games can have some similar elements as previous games, but not too much.
References
[2] https://twitter.com/supergarydeluxe/status/1427721753355329538
[4] https://www.copyright.gov/what-is-copyright/
[7]Lessig, L. (2004) Free Culture. New York: Penguin Press. http://www.freeculture. cc/freeculture.pdf
[9]https://store.steampowered.com/app/945360/Among_Us/
[10]https://www.theguardian.com/technology/2014/mar/26/candy-crush-saga-king-why-popular
[11]https://www.reddit.com/r/Games/comments/1w24z1/king_we_do_not_clone_other_peoples_games_but/
[12]https://www.gamereactor.eu/popcap-candy-crush-is-not-a-bejeweled-clone/
