PUBG vs Fortnite is a debate that the video game community has been having since mid-2017.

Fortnite currently has the upper hand. The game saw monthly revenue climb to $126m in February, putting it above PUBG for monthly sales for the first time, despite being a free-to-play game. However, this battle could be about to turn.

PlayerUnknown’s Battlegrounds developer PUBG Corporation has filed a lawsuit against Fortnite’s Epic Games in South Korea on the grounds of copyright infringement.

PUBG Corp claims that Fortnite replicates the experience for which PUBG is known, without bringing anything new to the genre.

The genre in question is battle royale, a game mode based on a Japanese movie by the same name, in which the government force a group of teenagers to fight to death. The Hunger Games is another, more modern take on the battle royale genre.

While the genre first emerged as modifications of popular titles like Minecraft and ARMA 2, PlayerUnknown’s Battlegrounds was the first standalone title to pioneer the genre.

The game starts with 100 players parachuting into a vast area of city, wildlife and water, full of weapons, armour and supplies. As the play area shrinks, players must fight to be the last person standing.

According to Lisa Cosmas Hanson of video game market intelligence company Niko Partners, battle royale is the industry’s fastest growing genre and one that is expected to continue growing for years to come.

Cosmas Hanson told Verdict:

“The genre is going to be very large – it is already the fastest growing genre.”

“In China, one of the markets Niko Partners covers, which accounts for nearly half of the global PC games market, battle royale games revenue should nearly double in 2018 over 2017,” Cosmas Hanson said.

“Even as far out as 2022 we expect revenue to still be growing significantly.”

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That should tell you everything that you need to know about this case. Battle royale is generating big money and Epic Games is holding PUBG back from dominating the market.

There is no denying that Fortnite is essentially the same game with a different art style, but does PUBG Corporation really have a case here and, if so, what impact might this have on the video game industry?

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It seems unlikely that PUBG Corporation has much of a case, given what the company is asking for here.

According to Kostyantyn Lobov, a senior associate at Harbottle & Lewis, PUBG Corporation would have to prove that some part of Fortnite has been copied from a valid copyright work.

Lobov told Verdict:

“Each country’s laws are slightly different, but the success of failure of this type of claim will generally depend on whether what has been allegedly copied can be tied to a specific, valid copyright work,”

“If what has been taken is abstract in nature, a copyright infringement claim will be more difficult to prove,”

The issue doesn’t seem to be that the Battlegrounds source code or graphics has been stolen or modified in any way without PUBG Corp’s permission, but that Fortnite is “replicating the experience” of Battlegrounds, as the studio said last year.

This would suggest that what PUBG Corporation is actually seeking is a monopoly of the battle royal genre. Verdict approached Bluehole Studio, PUBG Corporation’s parent company, for comment. However, we have yet to receive a response.

According to Alex Tutty, head of the Computer Games Department at leading media law firm Sheridans, unless the company has concrete evidence that their intellectual property has been stolen, there isn’t much chance of that happening.

Tutty told Verdict:

 “An entire genre is not protectable (under English law, at least) and so the statements about “replicating the experience” seem unlikely to succeed on a copyright infringement basis.”

“Allowing an entire genre to be protected is something that would stifle competition and also is a slippery slope. There are only certain ways certain games can be represented and both PUBG and Fortnite are part of a wider genre of shooters, so for anyone of them to claim they own the exclusive rights is impossible.”

Lobov agrees. Given that the battle royale genre was around a long time before it found its way into the video game mainstream last year, it’s particularly difficult for PUBG Corporation to justify that they have any sort of claim to it.

Lobov said:

“The situation is made yet more complicated by the fact that the core gameplay loop, the so-called Battle Royale format, existed in popular culture long before either of these games became successful, making it less likely to be protectable by itself.”

PUBG vs Fortnite: Does PUBG Corp have a case?

Id Software doesn’t own the first-person shooter genre for creating Doom, and Nintendo can’t sue every developer that has made a 3D platformer since Super Mario 64’s release.

Rather than arguing that Fortnite doesn’t bring anything new to the genre, Lobov tells us, PUBG Corporation would have to rely on a combination of other legal arguments, such as infringement of trademarks and designs, or unfair competition.

I’m no lawyer, but given Epic Games took a popular $30 game, redesigned it and then released it for free, there is certainly a case to be made for the latter.

Cosmas Hanson told Verdict:

“One could argue that it took lots of the existing PUBG gamers. Anecdotally, it seems as though many gamers switched to Fortnite, but the two have very different looks and feels, so it is hard to say,”

Research conducted by Newzoo suggests that this is the case. According to the video game market intelligence company, 35% of battle royale players now exclusively play Fortnite. Just 25% exclusively play PUBG.

According to the company, Fortnite’s larger market share is likely due to the fact that it is free for anyone to pick up and play.

Whether or not that constitutes unfair competition is now for the Korean legal system to decide.

Industry consequences

According to Games Radar, if the case goes PUBG Corporation’s way, potential punishments could range from a one-off fine based on the amount of revenue that Fortnite has generated in South Korea, to an order to cease operations in the country. Alternatively, Epic Games could be forced to pay PUBG a licensing fee or royalty payments to continue using the company’s assets.

Forcing Fortnite’s closure seems unlikely. It’s a decision that would cause plenty of backlash in the gaming community and, given that 75% of battle royale players play Fortnite, one that PUBG is probably best off avoiding. However, it is now out of their hands and in the hands of the legal system.

According to Tutty, if Epic Games is found to have breached copyright laws in Korea, it is highly likely that courts in other jurisdictions would come to a similar conclusion. Epic, having already lost one fight, wouldn’t likely be willing to spend the money fighting another.

If PUBG Corporation’s copyright claim is successful, this could open the floodgates to a number of similar cases. It would set a precedent and undoubtedly convince other developers to file similar claims against their competitors.

SuperData analyst Reggie McKim told Verdict:

“The precedent a PUBG Corp favoured ruling would set would be extremely harmful to the industry,”

“If game publishers get to have monopolies on genres or certain mechanics that make the genre unique, then, for example, myriad first person shooter games will be subject to legal action because of their similarities to each other.”

In reality, that probably isn’t the outcome that PUBG Corporation is expecting. Instead, the case likely serves as a warning shot to both Epic Games and other developers that PUBG won’t go down without a fight as interest in the genre ramps up.

Tutty told Verdict:

“Bluehole is clearly concerned about Fortnite and its success and is taking steps to protect its position. While a copyright claim on the face of it does not look too promising, it might be a good tactical move in order to try and warn Epic that it is going to be closely looking at this.”

This could also serve as a deterrent to other publishers that might be considering moving into PUBG’s territory.

Going by various reports, DICE will add a battle royale mode to their upcoming Battlefield V title. Likewise, Treyarch, the developer creating Call of Duty: Black Ops 4, has confirmed that battle royale is coming to CoD. There have also been rumours of established games like Counter-Strike: Global Offensive and Overwatch getting the game mode in recent months. There’s even talk of Rockstar’s upcoming Red Read Redemption 2, one of the most anticipated titles of 2018, featuring a battle royale mode.

The majority of these reports are merely rumours. However, what seems certain is that whoever decides to encroach on PUBG’s territory will be met with the same hostility as that directed at Epic.

“A ruling in PUBG’s favour could certainly make developers everywhere pause to see what they may be doing and if it is too similar to other games already in the market,” Cosmas Hanson told Verdict.

Regardless, whatever PUBG Corp throws at them, it is unlikely to phase publishers too much, given the lucrative revenues that battle royale games will undoubtedly provide. This is the fastest growing genre in video games and no publisher is going to want to miss out on a share of the spoils.

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