Blizzard and Valve (mostly) succeeded in court last week against a motion to dismiss filed by Heroes Charge and Dota Legends developers in an ongoing lawsuit for copyright infringement.

“Like Plaintiffs’ popular games, this copyright case has turned into quite the saga.” – Judge Breyer, District Court for the Northern District of California, March 9, 2018

In 2016, Blizzard and Valve filed an amendment to their original 2015 complaint against mobile game developers uCool, Inc., the developer behind Heroes Charge, and Lilith Games, Co., Ltd, the developer behind Dota Legends (which is also known as Sword and Tower, and Dot Arena) as well as Soul Hunters (which is allegedly a re-release of their original game, Dota Legends.)

The first big claim in the complaint was that the “heroes” in the allegedly infringing games were given practically the same visual appearance, in-game roles, special abilities, and designs as the characters created and owned by both Valve and Blizzard. Specifically, Valve and Blizzard provided the court with over a dozen examples citing that the heroes in both Heroes Charge and the Lilith Games are directly derived from the heroes in DotA /Dota 2, the Warcraft games, Starcraft, Diablo, and Heroes of the Storm despite the fact that they were re-drawn. Blizzard also stated that both games copied its in-game icons “almost verbatim” in its hero cards and action icons.

Below are just a few that were contained in the January 8, 2016 amended complaint:

Valve also provided over ten pages of charts identifying the infringed character in DotA/Dota 2 with a side-by-side comparison of the copied characters in Heroes Charge and Lilith Games productions.

In addition a copying the character designs and functions, Blizzard noted that both of the developers copied and utilized well-known landmarks from Blizzard’s Warcraft games, including the Dark Portal and the city of Silvermoon. Lastly, Blizzard claimed that uCool specifically used a tavern song composed for and used in the Warcraft games, “Stonefire,” as the theme song for Heroes Charge.

On March 9, 2018, the District Court for the Northern District of California’s Judge Breyer was tasked with deciding whether Lilith Games and uCool were entitled to dismiss the claims of copyright infringement. While Lilith Games was able to get some claims of copyright infringement dismissed, uCool was not so fortunate.

In deciding on the motion to dismiss, Judge Breyer had to determine whether Blizzard and Valve had reasonably alleged that the works of Lilith Games and uCool are substantially similar to the original works owned by Blizzard and Valve.

In order to understand this question, it’s helpful to have a basic understanding of the underlying law. To state a claim for copyright infringement, Blizzard and Valve must prove that they have valid ownership of the work in question and that there was illicit copying of the constituent (protectable) elements of the original work . Basically, were the works copied and did that copying actually constitute unlawful infringement?

If there is no evidence of direct copying (such as a blatant copy and paste,) there is a question as to whether the infringing party had access to the copyrighted work in the first place. Here, it’s pretty clear that most people in the field of game development is more than likely to, at one point, have been exposed to the cited work of Blizzard and Valve.

Once that has been established, the court looks to whether the allegedly infringing works are substantially similar in the “total concept and feel of the works.” The question of “whether the ordinary, reasonable audience” would find the works substantially similar is typically left to a jury to decide while “an objective comparison of specific expressive elements” is taken on by the court.

Lilith Games argued that Blizzard and Valve were not specific enough in its claims, stating that each version of Heroes of the Storm, the Warcraft games, DotA, Dota 2, and so forth were all considered separate works of authorship that had to be cited independently. While the court agreed that each version was a separate work, it concluded that Blizzard and Valve did not need to provide examples of infringement across each version.

Lilith Games was successful, however, in its argument that Blizzard did not sufficiently allege that there was substantial similarity between Lilith Games’ Soul Hunters and Blizzard’s Diablo and Starcraft. While Blizzard had strong claims of infringement against Lilith Games’ Dot Arena, the court decided that Blizzard had not alleged that Soul Hunters infringed Diablo and Starcraft.

On the other hand, uCool argued that merely 2 of its 135 Heroes Charge characters were alleged to be similar to characters in Blizzard’s Diablo and Starcraft. Since this wasn’t a lot of copying, it argued, it shouldn’t be liable for infringement against these games. Additionally, uCool argued that even if it was infringement, the concept of space soldiers and skeleton kings are simply generic. This argument, however, did not survive. Blizzard successfully argued that uCool’s characters in question had copied enough of the protectable expression in the Diablo and Starcraft character designs to survive the motion to dismiss.

The most interesting argument made by uCool was that it did not have access to Blizzard’s Heroes of the Storm, published in June 2015, because Heroes Charge was released in August 2014. Without having access to Heroes of the Storm, uCool argued, it could not have known of, seen, and subsequently copied the material for use in Heroes Charge. Blizzard successfully alleged, however, that Heroes of the Storm was initially released to the public in March 2014. Unfortunately for uCool, a later publication date does not mean that the game had not been made available to members of the public and highly publicized before the development and release of Heroes Charge.

While Lilith Games was able to argue that Blizzard’s claims of Soul Hunter infringing against Diablo and Starcraft could not succeed to the next phase of litigation, it failed to stop the other claims of infringement being hurled its way. Similarly, uCool was unable to dismiss the claims of copyright infringement against it.

While this case has been a long-time-coming, there’s still plenty more waiting to do. As Judge Breyer stated himself, “[t]wo-and-a-half years after the commencement of this case, we are back where we started (perhaps a little wiser but certainly no younger).”

Author, Caroline Womack, is a 2L at Quinnipiac University School of Law and primarily studies intellectual property law, focusing on video game and internet law.