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First- Ever Decision by the Supreme Court of Korea ...

August 2019 - Intellectual Property. Legal Developments by Lee & Ko .

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First- Ever Decision by the Supreme Court of Korea to Find Copyright Infringement in the Selection, Arrangement or Combination of Game Elements

Lee & Ko’s IP Group Secures Major Victory for

On June 27, 2019, Lee & Ko achieved an important victory for in the Supreme Court, which held that copyright infringement exists where the elements of game are substantially similar in selection, arrangement or combination. This ruling is the first-ever Supreme Court decision to recognize copyright infringement against imitation games (including mobile games).

Facts of the Case and Questions Presented, a prominent game company and the creator of “Farm Heroes Saga,” brought a copyright infringement suit against the distributor of “Forest Mania” on the basis that the distributor’s game was substantially similar to Farm Heroes Saga. Although the games had different game characters, the overall elements of the games were similar in that they expressed the game rules through similar movements and order of introduction. The Seoul Central District Court found no copyright infringement but held that the defendant violated the Unfair Competition Prevention and Trade Secret Protection Act (the “UCPA”) and on appeal, the Seoul High Court held in favor of defendant, finding no copyright infringement and no violation of the UCPA. appealed the decision of Seoul High Court.

On the appeal case heard before the Supreme Court, Lee & Ko presented how the “creative characteristics” of Farm Heroes Saga were realized in the game through unique selection, arrangement and combination of the game elements. Given the nature of the case where many contentious issues were based on the games’ visual expressions, the Supreme Court allowed both parties a rare opportunity to present their arguments before the Court using visual materials, and Lee & Ko successfully presented convincing evidences of substantial similarities between Farm Heroes Saga and Forest Mania. Finding copyright infringement based on Forest Mania’s copying of the creative characteristics of Farm Heroes Saga, the Supreme Court held in favor of, thereby reversing the Seoul High Court’s decision and remanding the case back to the Seoul High Court.

In the decision, the Supreme Court explained that a game can be protected by copyright if its elements are selected, arranged and combined in accordance with certain intention so that the resulting game has creative characteristics distinguishable from other games. This case is the first Supreme Court case where the Court recognized copyright infringement against an imitation game.

Implications for the Game Industry

Until the decision, there were no clear precedents on the extent of copyright protection available for games and whether a copyright infringement can be found for games that imitate popular games by making slight design changes only. With the decision, the Supreme Court provided a guideline for determining copyright infringement in games by recognizing the selection, arrangement and combination of game elements as the creative characteristic of games.

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