POSTED BY Micah-Shalom Kesselman
JHTL will be hosting a panel on E-Sports on November 5th to discuss some of the topics mentioned in this post.
E-Sports have grown from a niche hobby to a booming and rapidly expanding industry. With professional gamers now on salary for game studios, prize pools of nearly $11 million, and foreign E-Sport athletes now able to fast track their visa for US competitions, the E-Sports scene is certainly deserving of considerable attention, whether or not it is “mainstream” yet. The legal issues that arise can range from copyright and neighboring rights (in the international arena at least) to issues of anti-trust, employment law, and more; however, this post will primarily, albeit briefly, discuss some of the IP issues that may arise.
“E-Sports” is a general term applied to a variety of activity. Fundamentally, however, it means the professional and competitive playing of video games. Professional gamers often train eight to ten hours a days in order to be able to perform to a level competitive enough to win pay outs that can be over $1 million for the most successful competitor. Unlike professional physical athletes, these players are able to livestream their marathon gaming sessions—and are even able to make a solid livelihood out of it after “retiring.” At the same time, the lives of many competitors are more contingent upon winning tournaments than perhaps any other professional athlete. In the US, E-Sports has been growing consistently over the course of more than a decade. While it has yet to hit “critical mass” here, E-Sports in other countries has attained a more elevated place in society and culture. From the perspective of the IP focused law student or practitioner, E-Sports combine all the interesting IP issues endemic to software with all the other IP issues that arise in entertainment law—basically, it is a crossroads between two nexuses.
Copyright issues, unsurprisingly, arise for those professional players who livestream. Furthermore, third parties who create mashups, clip series, commentary series, and myriad more types of videos are at high risk of running into copyright issues as well. Professional players do not own the underlying assets of the games they are streaming and whether these are public performances, reproductions, or protected by fair use is entirely unclear. Similarly, the precise domain that YouTube channels currently lie in is unclear. Other countries may attach “neighboring rights” to commentators’ and players’ performances—but not so in the US because, like moral rights, we do not currently recognize these types of rights. What, exactly, the scope of legal conduct allowed to players and gamers is yet to be determined but certainly will be in the near future—especially if streaming services continue to implement automated systems fraught with implementation issues.
Trademark issues are yet another type of intellectual property that merits thorough consideration when it comes to E-Sports and its evolving legal penumbra. Aside from the video games’ own trademarks, streamers and video content creators often pull in revenue from selling advertisements or endorsements from tech companies, requiring the player or commentator to place the companies’ trademarks somewhere on their videos and streams or run ads at regular intervals. How exactly trademark law might treat the interplay of trademarks and how each relevant parties’ rights might be protected is quite likely to provide ample grounds for various disputes in the future.
Publicity rights, perhaps more than the rights intellectual property areas already listed, may prove problematic for players moving into the future. Not only are publicity rights jurisdictionally dependent rather than primarily under the purview of federal law, they are often unclear in application and precise extent. Even the most basic question of where to sue over a conflict over publicity rights might become a legal nightmare in the event a dispute arises between a player making the bulk of their income through streaming over a third party platform and a game developer whose game is the primary game played by the streamer.
As with any time technology and the law meet at an unexpected crossroads, the legal landscape is hazy and unclear on some, if not most, of the important issues. I briefly covered a very small smattering of the intellectual property issues that are clearly on the horizon for this new industry. Not only are their more issues in other legal areas that are certain to arise, all legal considerations with regards to E-Sports almost inherently have an international element as well due to the internet-based nature of the medium. Inevitably, these issues will be resolved by courts, legislatures, and business norms as we proceed into the future. How, exactly, these issues will be resolved remains to be seen and will certainly determine the future of E-Sports as it evolves in the global entertainment landscape.
