Epic v. Apple: US Court Formally Punts on Trying to Define What a Video Game Is

By | September 10, 2021

With the ruling of the Epic v. Apple trial dropping today, we got answers to some of the most pressing legal questions brought up during the proceedings. Sadly, the answer to the question, “What is a video game?” was not among them.

The fact that this was a question at all during the court proceedings may sound absurd if you’re not familiar with how legal arguments work, but it turns out, agreeing on definitions of important and often common terms is necessary to make a case in court.

In Epic v. Apple, the question of “what is a video game?” came up during the first few days of court proceedings, but as noted in the court’s final ruling, “no one agrees and neither side introduced evidence of any commonly accepted industry definition.”

Epic Games CEO Tim Sweeney tried to offer his own definition, but it involved trying to define Fortnite‘s creative mode as…not a video game at all:

“I think game involves some sort of win or loss or a score progression, on whether it is an individual or social group of competitors,” he said. “With a game you’re trying to build up to some outcome that you achieve, as opposed to an open-ended experience like building a Fortnite Creative island or writing a Microsoft Word document. There is no score keeping mechanic and you are never done or you never win.”

Meanwhile, Apple’s head of app review Trystan Kosmynka offered that games are “incredibly dynamic,” “have a beginning, [and] an end,” and have “challenges.”

The court was unimpressed. In the final ruling, the judge acknowledged that video games did appear to “require some level of interactivity or involvement between the player and the medium” and “are also generally graphically rendered or animated, as opposed to being recorded live or via motion capture as in film and television” (though that second part might have been debunked had anyone introduced Telling Lies into evidence).

In the end, though, the judge threw up her hands on this particular question, saying the definitions she was given did not capture “the diversity of gaming that appears to exist in the gaming industry today.” She also pointed out that Sweeney appeared to be trying to define Fortnite as something other than a game — a metaverse, in fact. But she wasn’t impressed by that either.

“The Court need not reach a conclusive definition of a video game or game because by all accounts, Fortnite itself is both externally and internally considered a video game,” the ruling reads. “Epic Games markets Fortnite to the public as a video game, and further promotes events within Fortnite at video game related events. Although Fortnite contains creative and social content beyond that of its competitive shooting game modes, there is no evidence or opinion in the record that a video game like Fortnite is considered by its parts (i.e., the modes within the game) instead of in its totality.

“By both Mr. Sweeney and Mr. Weissinger’s own descriptions, the metaverse, as an actual product, is very new and remains in its infancy. At this time, the general market does not appear to recognize the metaverse and its corresponding game modes in Fortnite as anything separate and apart from the video game market. The Court need not further define the outer boundaries of the definition of video games for purposes of this dispute.”

While we were left without a legal definition of a video game from Epic v. Apple. we did get a definition of sorts for something a bit more unusual: Fortnite’s Peely.

Peely, who was brought up in court in his suited Agent Peely garb as a visual aid for what Fortnite players could do in Creative mode, briefly diverted proceedings when Apple’s attorney quipped that they thought it was “better to go with the suit than the naked banana, since we are in federal court this morning.”

This was brought back up later in the trial when Epic’s attorney countered this joke by asking Epic’s VP of marketing Matthew Weissinger if there was anything inappropriate about Peely without the suit.

“It’s just a banana man,” Weissinger replied.

During its final ruling, the court stated that it agreed with this characterization of Peely and that it found the suit Agent Peely wore “not necessary but informative.”

So much for video games, but at least Peely has a legal definition. (He also was exploded into banana goo by Ryu back in March in the Fortnite Chapter 2 Season 6 cinematic trailer, but he appears to be fine now.)

The court’s ruling today on Epic v. Apple will likely spark further challenges in court, especially with challenges on so many fronts already. There’s proposed legislation that would solidify the ability for developers to use their own payment systems on top of the ruling, as well as continued pushback on Apple from other developers upset at its walled garden policies.

Rebekah Valentine is a news reporter for IGN. You can find her on Twitter @duckvalentine.