Now, more than ever, eSports have been growing continuously, and as the audience grows so does the revenue. While the global revenue amounted to a total of approximately $325 million in 2016, it was already at $696 million by 2017. Experts estimate this amount will increase to approximately $1.49 billion by 2020. Professional eGamers can also expect to earn a fair amount of money between competition prizes, streaming, and sponsorships.
But what are eSports? eSport refers to a competition between people by means of computer or video games of different genres (e.g., real-time strategy games, first-person shooters, or sports simulations). Given the growing number of viewers and rising profits, eSports are, therefore, becoming increasingly interesting for different parties: event organizers, sponsors, and even traditional sports clubs that are establishing their own eSports divisions. Popular eSports games include Siege or League of Legends, where cash prizes can reach the six-digit figures. In this context, intellectual property law plays an important role in the eSports arena and game developers, event organizers, e-sport teams and sponsors should be aware of the legal questions that might arise in this environment.
Are organizers allowed to make copies or reproductions of a game for their eSports events or any other purpose?
In general, videogames (as the source code) and its elements (characters, music, landscape…) are protected through copyright (see our previous blog article here).
According to this, the permanent or temporary reproduction of a computer or video game would be subject to authorization by the rights owner. Because end-user (gamers) license agreements commonly used by publishers on the market generally exclude the commercial use of computer and video games, organizers of eSports events have to ensure that they obtain the necessary usage rights to make the respective video game publicly available at their events or through other distribution channels (e.g., online streams).
Is there a performance right for participants?
Are eGamers to be regarded as performers in the same sense as singers? And consequently, should their “style of playing” be protected by copyright? The prerequisite for corresponding ancillary copyright would be that eGamers create an individual interpretation of the work when playing a certain computer or video game. For example, strategy games require eGamers to develop comprehensive strategies to be successful, which might be considered sufficient for granting ancillary copyright. On the other hand, classic ego-shooter games only require a certain degree of dexterity and responsiveness. Therefore, the boundaries seem to be quite blurred and, as of today, we have no straightforward answer since this question is yet to be discussed.
Are competitors allowed to bring their own elements, such as skins?
Competitors are often keen on customizing, by using skins in a video game. A skin is a graphic or audio file, which, for example, can be used to change the appearance of the user interface to a program or for a game character’s outfit, weapons, and other elements shown in the video game. Skins don’t affect the game or the gameplay. Skins do not usually pose a problem as they are designed in collaboration with gamers who grants the developer a perpetual, worldwide, non-exclusive licence over said skins (usually incorporating the streamer’s logo).
Can cheat bots be considered infringing?
A cheat bot is a software that autonomously processes certain tasks in a computer game. For example, cheat bots are used to advance the skills of game characters by taking on time-consuming or dull activities while the player can attend to other things. Hence, they can pose some issues in the field of copyright and unfair competition.
If you remember, we recently reported on a UK court that ruled in favour of Grant Theft Auto V’s developed (Rockstar Games). Epsilon, a cheat bot developer, was ordered to pay 150.000 dollars in damages because they were distributing cheat bots that enabled players to easily gain multiple advantages in the multiplayer mode without having to pay for them or without having to go through the gameplay. This was considered as a copyright infringement.
For the infringement to be considered unfair competition, it would be necessary to show that the cheat bots are circumventing protective measures and impairing players’ equal opportunities (impacting negatively on legal players).
eSports are definitely a new and exciting niche, not only for players but also from a legal standpoint: various key players (eGamers, game publishers, and organizers of eSports events) each of them facing their own legal challenges. Organizers need to ensure that they secure all necessary rights from game publishers and, potentially, eGamers. eGamers and game developers need to be aware of possible ancillary copyrights and should take precautionary measures to protect them.
IP in the world of eSports is still an unexplored topic. In this context, it is important that the parties are aware of the existence of said rights and address them through contractual provisions until further developed by our courts and legislators.