By: James Williams,
Sure, we all know that one friend or group of people who play(ed) League of Legends, World of Warcraft, Call of Duty, or other online games. You probably heard parents or teachers say at some point, “you’ll never go anywhere playing those games all day.” However, for some hardcore gamers over the past decade, that threat has been proven false.
eSports has become a new “real job” prospect for elite gamers. These competitions involve high-earning possibilities, and there is even a list of earnings by some of the most successful players. Now, there is even a need for lawyers who specifically represent these gamers in terms of reviewing contracts and meeting other legal needs.
Aside from the amount of money flowing around the competitions being insane, there are several intellectual property issues that arise with the growing popularity of eSports. While it is true that the performance of the gamers is unique to them, they are still using the game, which involves the copyrighted artwork of the publisher, the branding associated with the trademarks, and potentially any patents that are related.
Currently, the various tournament hosts appear to contract around the IP issues with gaming publishers. The game publisher or developers are usually still the copyright holders, so enforcement rests upon their discretion. Advertising creates several opportunities for both the game developers as well as the gamers because both can find benefits from advertising the game and potentially, the gameplay.
Streaming gameplay online through platforms like Twitch and YouTube is also a concern for game developers. The current defense that has been suggested for streamers is fair use, but this is not the sturdiest defense. Aside from trying to put game streaming into one of the narrow categories of fair use, four factors also need to be weighed. For competitive players, streaming the video games that they play is equivalent to a job, so the use itself may be considered as commercial if they are making money and branding themselves. Some game companies, such as Blizzard, are trying to circumvent this by creating a space where players can stream content as long as those players are not charging money to view their content. While Blizzard is trying to keep the players pushed into the fair use category, grounds for infringement may still exist depending on how the courts define the streaming of game content. This is something that gamers, developers, and the legal community will be watching for the future.
Atlus attempted to enforce its rights by threatening suit for those who streamed its game, Persona 5, after a certain point in the beginning of the game to protect the storyline from being spoiled. However, they received so much criticism from Let’s Players and the gaming community, that they issued an apology and removed the warning. This may be an important reminder that the game developers do own enforcement rights, but they are also subject to the market and the buying public.
Trademark sponsorship is not as much of a concern because this is still a growing field compared with other registered sports marks, like Michael Jordan. Although eSports has made it onto ESPN and other non-streaming services, major players and the games themselves are not widely recognized by the general public, so trademark sponsorship may still be a matter of years away.
Moving forward, we’ll want to keep an eye out for fair use as applied to streaming, copyright licenses, and the possibility of individual or corporate trademark issues within the eSports arena. The world of gaming has officially left the basement and is now walking into the spotlight.
 See Jas Purewal & Isabel Davies, The eSports Explosion: Legal Challenges & Opportunities, 9 Landslide 2 (2016), https://www.americanbar.org/publications/landslide/2016-17/november-december/the_esports_explosion_legal_challenges_and_opportunities.html. (last visited Apr. 3, 2018).
 The International 2017 Dota 2 competition had a prize pool of $24.7 million USD. Largest Overall Prize Pools in eSports, E-Sport Earnings, https://www.esportsearnings.com/tournaments. (last visited Apr. 3, 2018).
 The highest overall earning player was Kuro Takhasomi for a Dota 2 competition where he earned $3.6 million USD. Highest Overall Earnings, E-Sport Earnings, https://www.esportsearnings.com/players. (last visited Apr. 3, 2018).
 Advertising these competitions can also help advertise the games themselves, so some game developers may turn the other cheek when it comes to enforcing their copyright and trademark rights. See Aaron Swerdlow, The emerging legal battle over video game streaming rights, Venturebeat (May 27, 2017 at 6:00 AM) https://venturebeat.com/2017/05/27/the-emerging-legal-battle-over-video-game-streaming-rights/.
 17 U.S.C. § 107 (“Notwithstanding the provisions of 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. […]”).
 Id. (“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”).
 Supra note 7.
 Supra note 1.
 ESPN, http://www.espn.com/esports/. (last visited Apr. 3, 2018).
Image Source: https://www.nasdaq.com/article/the-incredible-rise-of-esports-cm904589.