Are ‘Warcraft’ Characters Copyrightable?

SAN FRANCISCO (CN) - A fight over the "copyrightability" of video game characters continues, as a federal judge dismissed with leave to amend U.S.-based owners of "World of Warcraft" claims that a Chinese company copied their characters and "other assets."

Blizzard Entertainment and Valve Corp. sued uCool and Lilith Games Co. in September. In video game parlance, it was a sort of Level 2 lawsuit.

Lilith, of China, sued California-based uCool in March, claiming uCool had stolen 240,000 lines of copyrighted software code to develop "Heroes Charge," its version of Lilith's "The Legend of Sword and Tower."

In September, U.S. District Judge Lucy Koh denied Lilith a preliminary injunction to stop uCool from selling "Heroes Charge."

Now Lilith finds itself on uCool's side, facing copyright infringement claims for characters, "settings, terrain, background art and other assets" for Blizzard and Valve's mutually owned "World of Warcraft" franchise, which includes several versions of "Warcraft," "Starcraft," "Diablo" and "Defense of the Ancients," also known as "DotA" and "DotA 2."

On Sept. 8, Blizzard and Valve asked for preliminary and permanent injunctions.

Acting independently of Lilith in October, uCool filed a motion to dismiss for failure to state a claim. It said the plaintiffs must make a more "definitive statement," and provide specific details about the allegedly infringing characters and assets.

U.S. District Judge Charles Breyer ruled on Dec. 8 that though the plaintiffs have plausibly alleged "ownership of a valid copyright," they cannot show "copyrightability" of characters.

"Although plaintiffs allege that 'dozens of characters from "Heroes Charge" are derived from and substantially similar to Blizzard and Valve's characters,' they plead no facts demonstrating that any one of the dozens of characters are plausibly copyrightable," Breyer wrote in a 9-page order.

He found "conclusory" the plaintiff's arguments that their characters are "distinctive ... with names, distinctive physical appearances, clothing, weapons, traits, abilities and ongoing stories," and said more detail about the characters' individual characteristics are needed to determine copyrightability.

"Given that the court need not accept as true conclusory allegations ... plaintiffs have failed to meet their burden of alleging, with sufficient detail, copyright ownership in the characters," Breyer wrote, granting uCool's motion to dismiss, with leave to amend, so that Blizzard and Valve can "add the additional detail required by Ninth Circuit case law to their complaint, thereby plausibly establishing with a representative sampling both the copyrightability of their work and infringement."

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