Updated: Feb 4
Intellectual property law, especially copyright has always been very important within the entertainment world, most notably for books, films and music. However, with the rise of esports and the popularity of video games in general, the importance of a robust IP strategy for game developers and esports professionals came to the fore.
As we’ve already discussed in our previous blogs, esports is one of the fastest growing industries in the world that is not only lucrative for the players, but also for the businesses. Esports generates profit mostly through advertising and sponsorships (for example, company Riot Games, the owner of the most-played PC game League of Legends, has collaborated with brands such as RedBull, Kit Kat, Warner Music etc.), the sale of rights to broadcasters, ticket sales, in-game purchases and payment from streaming services. The key to monetising this revenue however is intellectual property.
Ancillary copyrights of gamers
Performers such as singers and actors, have without a doubt the right to their performances being recognized as their own. For example, they have the exclusive right to record their performances on video or audio recording media and make them available to the public. However, can gamers (we use this term jointly for esports professionals and content creators) be recognized as performers as well and consequently have copyright protection for their style of play?
While traditional sports players, such as football players, are not regarded as performers because the focus of the game lies on the effort of the player and the course of the game is overall rather spontaneous, the gamers create an individual interpretation of the work when playing a certain computer or video game. Some argue that gamers have to also develop comprehensive strategies in order to be successful when playing strategy games, which might be considered sufficient for granting them an ancillary copyright. On the other hand, classic first-person shooter games only require a certain degree of skill and responsiveness. Hence, the boundaries between whether or not a corresponding ancillary copyrights for gamers’ performances should be recognized or not, still seem to be quite blurred. However, due to its nature, esports can in general benefit from IP protection to a greater extent than traditional sports since video games (as the source code) and its elements (characters, music, landscape…) are protected through copyright.
Copying and reproducing games for the esports events
End-user (gamers) license agreements commonly give players the right to play a video game on a non-commercial basis. This means that the permanent or temporary reproduction of a computer video game would be a subject to authorization by the rights owner. Therefore, 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. Players as well as companies need to be careful not to infringe the rights of others.
Source: Sports Destination Management
What do Aspirin and DOTA have in common?
Another immediate difference between esports and traditional sports (beside the performance right) is trademark protection. In regular sports, while many teams or organisations will have trademarked their names, logos or other associated brands, the sport that they are playing in and of itself cannot be trademarked as a sport. Esports tournaments however, are a different story. The games that the gamers are playing consist almost entirely of various forms of intellectual property. For example League of Legends, DOTA, Fortnite, Counter-Strike etc. are all registered trademarks that enjoy legal protection.
However, with the growing popularity of esports, mentioned games are at risk to start being treated the same as traditional sports and thus will not be able to remain registered trademarks. This is because a trademark ceases to be a valid trademark, if it becomes too generic and starts being an integral part of our vocabulary. The latter, for example happened to “Aspirin” when the word became too colloquial and people started using their brand name as a generic word.
Company Velve, who is the owner of the trademark DOTA, almost faced the same problem as “Aspirin”. Since 2009 a number of so-called “DotA clones'' have entered the market and presented a new genre of video games. If the gaming industry would acknowledged this genre as “DotA clones'' or even worse, “DotA'' games, Velve would have to say goodbye to their trademarked “DOTA” and join the other generified brands (such as “escalator”, “cellophane” etc.). Since the competitive company Riot Games wasn’t too happy about using the competitors’ brand name, they came up with their own name for the new genre - “Multiplayer Online Battle Arenas'' (“MOBA”). So too did Valve when they created their own term and named the genre “Action Real Time Strategy” (“ARTS''). Whether by chance or on purpose, the use of the terms “MOBA” and “ARTS” has quickly spread, and thus prevented DotA’s genericide.
Intellectual property will become increasingly important as esports’ industry global revenue potential approaches $1.7 billion. Organizers of esports tournaments need to ensure that they secure all necessary rights from game publishers and, potentially, gamers. Professional gamers and game developers on the other hand, need to be aware of possible ancillary copyrights and should take precautionary measures to protect them. Although intellectual property in the world of esports is still a relatively unexplored topic, the parties should be aware of potential infringements of the said rights and address them through contractual provisions.
If you are a professional esports player or content creator that needs legal support with addressing your IP rights, Lemur Legal lawyers will be happy to help. Send us an inquiry at firstname.lastname@example.org. Lemur Legal also operates SPIKE Esports Agency, where we can offer you full support in your esports endeavours --> email@example.com