Bethesda Sues Warner Bros: A Lawyer’s Perspective

Recently, Bethesda has gone after Warner Bros’ release of the Westworld mobile game. It looks like the similarities between Fallout Shelter and Westworld are more than skin deep. Since we’ve previously covered PUBG suing Fortnite, we’ve decided to break down this lawsuit for you too. We cover Bethesda’s litigious history, what they want, and what we think they’ll get.

Bethesda Warner Bros Lawsuit: A Timeturner

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Bethesda has a long history of being legally combative. This latest bout with Warner Bros is the third major lawsuit in recent years. With famous ex-opponents like Facebook and Jordan Maron (of Youtube fame), Bethesda is no stranger to the copyright ring. Looking back at their previous bouts can give us an indication of what they’re gunning for with their latest victim.

Back in 2014, ZeniMax (the parent company of Bethesda) went after Oculus for misappropriating trade secrets. This suit was brought on the basis that Oculus hired ex-ZeniMax staff who knew the latter’s trade secrets, and that ZeniMax IP had been used to promote the Rift. Additionally, Zenimax’s submissions called for sales of Oculus headsets to be banned.

Recently, a judge ruled that Oculus would have to pay $200 million to ZeniMax for breach of contract, and $50 million for copyright infringement. While it sounds like a lot, that amount is only half of ZeniMax’s original $500 million demand. Facebook (owners of Oculus) has always denied that the ZeniMax’s claim had substance, but ZeniMax has even tried suing Samsung over VR tech since.

Bethesda v Warner Bros Lawsuit: Trademark Troubles

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The wild ride doesn’t stop there, folks. Even if you weren’t tuned into ZeniMax’s VR woes, the company took copyright infringement concerns to a new level when it went after No Matter Studios in 2017. While the Oculus suit was grounded in competition law, this was solely over a trademark application. With Bethesda launching Prey, ZeniMax made one thing clear: No Matter Studios’ Prey for the Gods was unacceptable.

Unfortunately for the Seattle-based creator, it didn’t have good ol’ Zuck to fund its fight against ZeniMax. While No Matter Studios was clearly opposed to ZeniMax’s trademark opposition, they didn’t have a choice. Going to trial is rarely a good option; it’s prohibitively expensive, especially for a small studio. No Matter was in the wrong place at the wrong time, so it ended up changing the game’s name to Praey for the Gods. Bethesda’s victory came at the expense of outraged fans and critics alike, which leads us to the public consensus of its latest suit.

Bethesda v Warner Bros Lawsuit: The Status Quo

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Now, we get to the good stuff – the beatdown over Westworld. Bethesda is claiming that Behaviour Games and Warner Bros have ripped off Fallout Shelter‘s code. This isn’t like the situation with Prey. The general gist is that Bethesda is essentially claiming that the Westworld game is a re-skin of their assets. The full judgement is embedded here, and it’s got some similarities to the PUBG v Fortnite school of legal thinking. For the uninitiated, that’s the You Can’t Use Graphics That Look Like Mine school.

Generally, a lot of Bethesda’s submissions are to do with the design choices in Westworld. There’s a whole paragraph about how Fallout Shelter and Westworld both use flat-shaded, 2D characters. Yes, you heard me. Even if you’re not a copyright law expert, flat-shaded, 2D characters shouldn’t be a protected class – that’s common sense.

Where things get a little trickier is in the little addendums that accompany Bethesda’s assertions. It’s all well and good to say “Your game looks like my game, that’s illegal.” Actually, it’s idiotic. Luckily for Bethesda, their counsel has added the magic words into its paragraphs about seemingly minor aesthetic concerns. Those words? “Source code copying”.

“Source code copying” appears in multiple variations throughout Bethesda’s submissions. Clearly, the crux of their problem with Behaviour goes beyond skin-deep. Bethesda is alleging that the Fallout Shelter code was copied wholesale, right down to bugs present in both games. Of course, this has yet to be substantiated by any experts.

Bethesda v Warner Bros Lawsuit: The Other Side

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It’s a serious thing to accuse a heavy-hitter like Warner Bros of copyright infringement to this degree. Unsurprisingly, they’re taking the Facebook approach of denying the allegations entirely. Unlike No Matter Studios, Warner Bros has the cash to let the court of public opinion decide if necessary. However, two cashed-up parties are likely to favour settling over a trial.

On top of its costs, Bethesda is seeking damages plus the pulling of the Westworld game from mobile stores. This suit has the potential to hit both entertainment giants hard if they don’t play ball. A long and protracted trial would be bad, but ZeniMax’s lack of good public standing would likely leave Warner Bros smelling like roses by the end.

It’s well-known that ZeniMax is litigious, and the recent award by a judge of half their claimed damages in the Oculus trial will mean something. We haven’t read the Oculus submissions, but trade secrets and breach of contract are common denominators between this suit and its predecessor. It’s not a stretch of the imagination to think that ZeniMax may be a little overzealous, and suffer as a result.

We’ve got a Fallout game on the horizon and Fallout Shelter has just come to the Switch. It’s easy to see that Bethesda is being protective of one of its major franchises. However, that protection is read as paranoia, and for good reason. The company has done itself no favours by pursuing small studios and even Youtubers over copyright infringement.

While we’re on tenterhooks waiting for the next tidbit about the suit, the silence from Bethesda feels more smug than anything. One thing’s for sure – this is a pattern in a long-recurring line of lawsuits against competitors, and Bethesda’s attorneys must be raking in the dough.

Who do you think will come out on top if Warner Bros and Bethesda go to trial? Are these copyright suits are doing irreparable damage to ZeniMax’s brand? Tried your hand at Westworld and reckon it’s a blatant rip-off? Give us a shout in the comments section below.