We don’t get the “Whammy Defense” enough in litigation but the makers of Empire Z are invoking the 1980’s game show in its defense to claims of infringement. In response to a lawsuit claiming that *Empire Z *is a clone of Game of War, Empire Z has countersued claiming that Game of War is the real clone of earlier games and the common game elements are not protectable under copyright law.

The full write up on the case can be found here but for the Cliffs Notes version: back in April, Machine Zone, the maker of Game of War, sued Ember Entertainment, the maker of Empire Z, for copyright infringement. Machine Zone claims that Empire Z is a “clone” and a “re-skin” of Game of War. In its defense to the action, Ember struck back with a counterclaim. Ember claims that Machine Zone has no valid copyright interest in any claimed elements of Empire Z because 1) Machine Zone copied them from earlier games; 2) the disputed elements are unprotectable ideas; and 3) the disputed elements are common and widely used themes.

![](https://www.leelawservices.com/wp-content/uploads/2015/09/heroes-300x81.jpg)

Gameplay of games is not protected under copyright law and neither are general themes (like building a kingdom) but the overall look, feel, dialogue, story line, setting, and characters can be. Ember claims that many MMO games are basically the same with a hero encouraged to build a city by gathering certain resources and completing tasks. Ember names many of these games including *Kingdoms of Camelot*, *Valor*, *Dragons of Atlantis*, *Clash of Clans* and *The Hobbit,* all released prior to *Game of War* that are all pretty much the same. Ember claims that Machine Zone took elements from these games and used it in their game. These games have similar in-game purchases, use currency to purchase commodities and even have similar heroes as seen in the picture above. Ember claims that *Game of War *is the actual copycat as it looks very similar to these previous games as seen below. ![](https://www.leelawservices.com/wp-content/uploads/2015/09/games-300x225.jpg) Ember goes on for close to 40 pages showing that most of the elements for many of these MMO games are quite common. Ember states that Machine Zone claims ownership of the look of a “casino” screen however Ember claims that looks dates back all the way to 1984 with the *Press Your Luck* television show. ![](https://www.leelawservices.com/wp-content/uploads/2015/09/Capture-300x228.jpg) Machine Zone needs to show that *Empire Z* is substantially similar and was copied from *Game of War *and not just using common elements and themes that are not protected*. *In other words, Machine Zone needs to show that* Empire Z *is a copy of* Game of War. *Machine Zone has responded to the counterclaim denying that its elements are not protected. This battle seems destined to continue for a long time. ![gow-empirez](http://piratedthoughts.com/wp-content/uploads/2015/09/gow-empirez.png)