Ravensburger magically releases Lorcana at GenCon 2023 despite IP infringement lawsuit
Competitor Upper Deck has filed suit and tried to prevent the release
In a fascinating legal battle that has caught the attention of the gaming community, The Upper Deck Company is suing Ravensburger and game designer Ryan Miller over the alleged appropriation of their original game, Rush of Ikorr, in the creation of Disney Lorcana. The lawsuit raises intriguing questions about the interplay of intellectual property law, non-compete agreements, and the concept of game mechanics. Upper Deck accuses Miller of pilfering their intellectual property and claims that Lorcana is "nearly identical" to its own original creation (which still has not been released).
What is Lorcana?
Disney Lorcana (to use its full name) is a highly-anticipated trading card game akin to Magic: The Gathering and Pokemon, but featuring an ever-expanding retinue of Disney characters. The game is the company’s first trading card game and Ravensburger North America CEO Filip Francke described Lorcana as "probably the largest investment that we have ever done into any type of project and initiative"
With sixty-card decks, players produce "ink", allowing cards representing characters, items, and song lyrics from Disney media to be summoned. Turns follow a sequence of generating ink, playing cards, and using actions from cards. While interacting with each other's cards, players attempt to accrue twenty points (known in game as "lore") before their opponent. The family-friendly game is aiming for a fairly wide audience, and its relatively bloodless gameplay stands in stark contrast to the product described by Upper Deck.
Despite Upper Deck’s best legal maneuvers, the game was released as originally planned at this year’s mega-gaming convention, GenCon, in Indianapolis where players waited in hours-long lines to purchase starter decks and booster packs. Cards with particularly high rarity quickly resold for hundreds of dollars prior to the game's initial release, while the promotional cards from the 2022 D23 Expo resold for prices between $1,000 and $3,000.
Given the long-lasting appeal of games like MTG, it is obvious that there is a considerable financial incentive behind Lorcana’s hoped-for success and Upper Deck’s lawsuit.
The Underlying Timeline
Problems began when Upper Deck hired game designer Ryan Miller to participate in a brainstorming session for a new game, and Miller signed a "Summit Agreement" whereby he acknowledged Upper Deck’s intellectual property interests and assigned his rights to them for the proposed game that was then known as “Shell Beach.”
Impressed by Miller's work, Upper Deck brought him on as the lead game designer for the renamed game Rush of Ikorr, and a new "Work for Hire" Agreement was signed to formalize the arrangement. However, Miller terminated this agreement before work was complete and he moved to Ravensburger to work on what was eventually announced as Disney Lorcana in September 2022 at the annual D23 Expo in Anaheim.
Oddly, attorneys for Upper Deck first filed the lawsuit against Ravensburger and Miller in California state court in San Diego and left out any claims of copyright infringement. It then sought a preliminary injunction to prevent the Lorcana release at GenCon before suddenly (?) realizing a major blunder filing in state court (not least of which was because Ravensburger is based in Washington state) where copyright claims cannot be pursued. So, the legal battle was moved to U.S. District Court in San Diego where Ravensburger added copyright claims to the complaint.
The case is now on file in the U.S. District Court for the Southern District of California as Case No. 3:23-cv-01249-L-BLM as The Upper Deck Company v. Ryan Milton (a/k/a Ryan Miller), Ravensburger North America, Inc.
Game Mechanics and Intellectual Property
Much of Upper Deck's complaint focuses on the alleged similarity in game mechanics between Disney Lorcana and Rush of Ikorr. Upper Deck contends that Disney Lorcana is "nearly identical" to their original game and accuses Miller of essentially taking the game design Upper Deck paid him to create. As mentioned, Upper Deck was not originally pursuing a copyright infringement claim, and there's a good reason for that.
Copyright law protects the form of expression of ideas, not the ideas themselves. It is designed to prevent stifling innovation by allowing creators to build upon the general concepts and ideas of others. While the specific wording of game rules can be protected by copyright, the broader game mechanics, which form the heart of a game, typically aren't covered.
The Role of Contracts
When you hire someone to design ideas for your game, like Upper Deck did with Miller, and wish to protect those ideas from being shared with competitors, contracts become a crucial tool. Confidentiality obligations are one example of an alternative contractual route. They prevent an employee from using or disclosing confidential information obtained during their employment, even after they leave the company. However, English law can be tricky in situations where knowledge becomes ingrained in an employee's head and becomes part of their own knowledge. In some cases, employers cannot prevent employees from using such learned knowledge, even if they work for a competitor.
Game Mechanics and Innovation
Game mechanics are intended to be easily learned and remembered by players, as the essence of a game is in how it's played. This makes it more likely for game designers to carry these mechanics in their memory as learned knowledge. Protecting game mechanics, given the iterative nature of game design, is a complex issue that raises questions about the balance between safeguarding original creations and promoting innovation.
Other Claims and Their Dependence
Upper Deck's lawsuit includes claims of misuse of their intellectual property, inducement by Ravensburger for Miller to breach his contracts, fraud, and unfair competition. However, the crux of these claims hinges on whether Upper Deck can demonstrate that Miller breached his agreements, including confidentiality, and that the game mechanics are part of the intellectual property he allegedly copied. If not, Upper Deck faces a more challenging battle in proving its case.
Ravensburger has responded vehemently to Upper Deck's claims, stating that they stand behind the integrity of their team and the originality of their products. They label the lawsuit as "entirely without merit."
Game Mechanics and the Legacy of Magic: The Gathering
The legal complexities of this case come down to game mechanics, the core elements that make a game unique and enjoyable. The case has attracted attention not only due to the dispute itself but also because of the involvement of Brian Lewis, a legal advisor to Ravensburger. Lewis played a pivotal role in securing initial patents that protected Magic: The Gathering during its launch, setting a legal precedent that has influenced the trading card game industry ever since.
Why It Matters.
Copyright law protects the expression of ideas. It does not protect the ideas themselves. This distinction is important to understand because the protection of ideas lies along the controversially thin line between safeguarding creators’ work without stifling creativity and innovation.
A case involving claims of a stolen game idea is never going to be straightforward because game mechanics do not give rise to copyright protection. As such, Upper Deck is not approaching this case from an angle of pure copyright infringement; rather, it is focusing more on the alleged breach of contract by Miller, specifically a breach of confidentiality and misuse of Upper Deck’s intellectual property, among various other causes of action.
This is a slightly fiddly case to unpick. But at the heart of it we are still looking at a question of an allegedly stolen idea, which has inevitably raised some important and recurring questions for the games industry around games mechanics, why they are not protectable and whether you can even steal an idea that forms part of your learned knowledge.
Recognizing the weaknesses in its original complaint, Upper Deck made several key changes to its complaint (including moving the case to federal court where it probably should have been filed in the first place) that sought to address several of Ravensburger and Miller’s points in their motion to dismiss, including a claim of lack of jurisdiction.
Upper Deck added several paragraphs detailing Ravensburger and Miller’s California contacts to prove the jurisdiction is correct. Upper Deck references multiple trips Miller made to California regarding Rush of Ikorr or Disney Lorcana. It describes Disney as being a California company and the game being announced at a California trade show.
More specifically, Upper Deck changed the complaint so that it did not focus on just contracts and “ideas,” changing one sentence from:
“The features in Lorcana were in fact novel and proprietary to Rush of lkorr and their replication into Lorcana can only be the product of Miller’s theft of Upper Deck’s intellectual property and other proprietary concepts.”
“Several creative, expressive features in Lorcana were novel and proprietary to Rush of Ikorr and their replication into Lorcana can only be the product of Miller’s theft.”
Upper Deck responded to Ravensburger and Miller’s claim that the designer was not a “fiduciary” because he was an independent consultant, stating he was lead designer for the game.
Most notable is that Upper Deck has added copyright infringement claims. As Lesko points out, copyright claims cannot be brought in state court, where Upper Deck originally filed the lawsuit. But Ravensburger and Miller moved the case to federal court, which allowed Upper Deck to add copyright infringement to their complaint.
It seems likely that Ravensburger and Miller will file another motion to dismiss with a similar “waste of time” jurisdictional argument to the one they made in state court, but there will be no Upper Deck motion for preliminary injunction because it is too late. Disney Lorcana was released at Gen Con and at specialty stores on August 18.
The Disney Lorcana lawsuit reveals a fascinating interplay between intellectual property law, game mechanics, non-compete agreements, and the delicate balance between protecting original creations and fostering innovation. Regardless of the outcome, this case serves as a valuable lesson for the games industry, highlighting the importance of understanding the legal boundaries and ethical considerations in a competitive market. As the case progresses, the gaming community will watch closely, awaiting either a valuable lesson or a cautionary tale in navigating the complex line between protecting creativity and fostering innovation.