Unlike in regular sports where no one ‘owns’ the game, esports is built around video games that are the sole intellectual property of either the developer or the distributor who retains complete control over how their game is used.
Copyright laws are designed to protect the economic interests of the owner by giving them rights over how their work is used by third parties, which includes selling exclusive rights to others.
Those using a game for their own commercial interests, such as streaming game content or hosting tournaments, must have the correct permissions in place, and use it as stipulated in the agreement. Failure to obtain permission or a violation of the licencing arrangement can result in suits for copyright infringement from the game owner.
That said, and somewhat confusingly, some game developers openly permit, and sometimes encourage, use of their IP by third parties for non-commercial purposes as having the gamer community engaged in generating and sharing content boosts the standing of the game. The owner can of course decide at any time to restrict those rights.
The model becomes increasingly complex where one party holds the rights to game content and another to content generated by a player who competes in that particular game. This was illustrated in a dispute that arose in 2015 between two leading esports streaming platforms, Twitch and Azubu.
The issue centred on the use of content generated by Faker, one of the best known League of Legends (LoL) players, on a Twitch stream. Azubu at the time held the exclusive rights to stream content generated by Faker and issued a complaint to Twitch regarding the use of content it saw as its IP. Twitch responded by taking down all the player’s content it had hosted on its site.
The owner and developer of LoL, Riot Games, got involved asserting Azubu did not have the legal right to take action against Twitch as it, not Azubu, held the IP rights to the game that Faker played.
However Riot Games also recognised that Azubu held the rights to Faker content and that the rival Twitch stream was harmful to his brand. Riot acknowledged that professionals had the right to control who used their own content when playing LoL and subsequently restricted use of Faker’s LoL content by other parties.
Following Fortnite player Ninja’s move from Twitch, a subsidiary of Amazon, to the Microsoft owned rival Mixer in August 2019 a similar dispute arose. Ninja at the time was the most watched player on Twitch who held rights to host a channel on its site dedicated to content generated by Ninja. After Ninja decided to end his relationship with Twitch and move to Mixer other Fortnite content started appearing on Ninjas’ Twitch channel. After pornography appeared on the channel, Ninja issued a public statement stating that Twitch were using his brand without his consent and indicated he was exploring legal means to have the channel removed from the Twitch platform. The dispute was resolved when Twitch removed the channel and content though it shows how easily disputes can arise.
Game owners and the owner of player content rights need to be very clear in the agreements they enter about who owns the respective rights as it is easy for disputes to arise through misunderstanding. Access to expert legal counsel to help identify and resolve licensing issues is available under specialist media liability insurance policies which can help stave off disputes before they arise.
As it stands, the esports sector contains a minefield of risk for IP owners and creators, as well as for those streaming and taking part. Those utilising others’ content should tread carefully and ensure they have permissions in place. Media liability insurance can provide coverage for accidental copyright infringement offering protection to streaming platforms and those who generate content.
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