Amount of Accused Work Alleged to be Copied Is Irrelevant to De Minimis Copying Defense​

The court denied a group of defendants’ motion to dismiss plaintiffs’ infringement claim and rejected the defendants’ argument that their alleged copying was de minimis. “⁠[A group of] Defendants . . . note that [two characters in defendants’ video games] are merely two characters out of 135 characters in [defendant’s game], and therefore, there is no substantial similarity. It appears that the . . . Defendants are arguing that their alleged copying is de minimis—that is, the alleged copying is so trivial that it does not rise to the level of substantial similarity. But the . . . Defendants get the rule backwards. The relevant inquiry is not whether a substantial portion of the defendant’s work was derived from the plaintiff’s work but whether protectable material in the plaintiff’s work was substantially appropriated. . . . Thus, that the . . . Defendants may not have appropriated 133 other characters from one of Plaintiffs’ games does not mean Plaintiffs have failed to plausibly allege that the . . . Defendants copied protectable expression in [two of plaintiffs’ games].”

Blizzard Entertainment, Inc. et al v. Lilith Games (Shanghai) Co. Ltd. et al, 3-15-cv-04084 (CAND 2018-03-08, Order) (Charles R. Breyer)

2018-03-12T11:44:03+00:00 March 12th, 2018|Copyright, Docket Report|