This article has been written by Vinit Bagdai pursuing the Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. This article has been edited by Aatima Bhatia (Associate, Lawsikho) and Zigishu Singh (Associate, Lawsikho).

Introduction 

In India and all over the world with the development of the esports Industry – the significance of Intellectual property rights has increased enormously. Esports market is presently valued at about a billion US Dollars and their immense popularity is showcased in the fact that —some events consistently attract more than a million concurrent viewers providing the e-sport athletes desirable options for some amazing sponsorship opportunities. However,  the uncertainty of esports over international boundaries and lack of defined rules make them incredibly difficult to manage and organize. People compete with each other by means of devices at different esports tournaments hosted from time to time. Esports have several crucial components that distinguish them from conventional sports. Also, the role that game publishers and developers play is an important factor. In this article we will discuss briefly regarding the IP rights of the gamers in the Esports Industry. 

Evolution of Esports

According to Forbes, Esports has also crossed major league baseball in terms of audience. A total of 335 million viewership of Esports in 2017 is now estimated to be near about 646 million in 2023. According to Business Insider, monthly gamers will rise from 167 million to 276 million in the year between 2018 and 2022 respectively. Esports has an arguably  bigger audience than  Major League Baseball. Different tournaments are regularly happening across the world including India. Example – Tournaments of games like Valorant, Call of Duty, PUBG, CSGO, DOTA and many more and prizes for such events are in millions.

Esports authority is not much supported when it comes to Olympics, but Esports have been growing massively across the world including Asia. There have  also been conversations with the International Olympic Committee to involve Esports in Olympic events; which will be a massive boost to the Esports Industry. Esports is also now recognized by the Indian Olympic Association as “Esports Federation of India”, which is the leading governing body of Esports in the country.

Role of intellectual property in Esports

Intellectual property law, particularly copyright, has always been very valuable within the entertainment world, mostly  for books, films and music. However, the significance of a robust IP strategy for game developers and esports professionals came to the fore with the growth of esports and the popularity of video games in general.

Esports is a modern concept of authorship that makes use of myriad art forms such as sketches, graphics, video, characters, etc., and formulate different levels of human interaction for the implementation of the game. The storyline involved also must be unique and writers shouldn’t infringe on copyrights that already exist. Intellectual property is a vital element of the Esports industry and deals with attributes such as ownership of the property, licensing, advertising and many more such things. 

In eSports, there are different appropriate components such as publishers, organizers, broadcasters, teams, players, viewers, brands etc who are involved. An entity can perform more than one of these roles. Overlapping one of them will create chaos and confusion in the analysis of competition in the eSports market, as it will imply that economic connections are not perfectly horizontal or vertical by any means. However, between eSports publishers and other units like broadcasters and tournament organizers there lies a vertical relationship. E-Sports publishers are in a demanding market, i.e. in the “early” stage of production like suppliers of raw materials. On the other side, organizers and broadcasters work at a lower level than that of publishers; in the downstream market – comparable to that of manufacturers and retailers. The downstream competitors have the ability to control the downstream behavior of all the parties if they have the reacquired access to publisher’s IP to compete in the market. They enjoy significant influence over players, teams, league structures, tournaments, and show status.

Players as well as companies have to be very cautious that they don’t infringe any rights of others which could create trouble in future, including the name of the team and gamer tags as well. Recently, Esports team name Riot Squad in California was sued by Riot Games alleging that it chose the name to confuse the consumers. Teams and Professional players also should try to protect their personality and brand image by obtaining a trademark at the earliest.

Licensing issues can arise when different tournaments take place online (via gaming platforms) or on LAN as well, because all the rights in connection to the game are with the developer of the game. In order to avoid such issues, a license must be obtained by the organizers from the game developers. Also, professional players regularly monetize their brands by creating videos online; they must take care that they operate within the grounds of end user license agreements with regards to the content they post.

Which elements of esports are copyrightable and not copyrightable?

1. Elements which are copyrightable

Video games are eligible for copyright protection. With regard to esports, this may include audiovisual elements (e.g., maps, sound effects and characters) and literary elements (e.g., the underlying source code). Copyrighting these elements can raise questions of authorship as there tends to be several parties involved in it, for example, game designing, sound engineering, programming, and developing a user interface.

Match footage is also generally protectable under copyright. The tournament organizer or broadcast service typically owns the copyright in match footage; however, individuals who are casting or commenting on a match may have some IP rights on their own cast, depending on the agreements in place.

2. Elements that are not copyrightable

Copyright does not cover ideas. While musical or dramatic performances can be covered by copyright, sports performances are generally not recognized as copyrightable work. This is because they are not scripted and cannot be reproduced and therefore do not meet the third requirement for copyright protection – that the work must be fixed in a tangible medium of expression. As a result, there are no performance rights in players’ performances in an esports match.

Copying and reproducing the game for gaming events

Players have the right to play a video game on a non – commercial basis as a result of End user license agreements. This means that subject to the approval by the right owner there would be permanent or temporary reproduction of a computer game. Therefore, organizers of esports events have to ensure that they obtain the necessary usage rights/license to make the respective video game widely accessible at their events or through other distribution channels. Players as well as companies need to be vigilant not to infringe the rights of anyone in this matter.

The reason a video game cannot be copyrighted is because it is just a particular expression of the actual game. For example, Mario’s looks and sounds Copyright is owned by Nintendo but that doesn’t mean that Nintendo will have monopoly over all the character-based video games which have plumbers in their video games. However, copycat mobile games that piggyback on the success of popular titles in an attempt to make a quick buck often cross the line between idea and expression, a practice that can actually be traced back to a Pac-Man clone called K.C. Munchkin, which triggered one of the first video game copyright lawsuits in 1982.

As video games have advanced from time to time, characters based on real people rather than plumbers have also spawned lawsuits, most famously when the former Panamanian dictator Manuel Noriega tried to sue Activision over his portrayal in Call of Duty: Black Ops II game. In recent times, digital versions of sports stars’ tattoos may have breached copyright law: the tattoo artist, rather than the person whose skin bears the ink, usually owns the copyright, and some claim they did not give their authorization for their work to be used in any manner.

Conclusion

After reading the above article, one can surely understand the importance of Intellectual Property in the Esports Industry. Therefore, the tournament’s organizers should make sure that they obtain the necessary license from the publishers/developers of the game. The importance of Copyright is valuable as there are constant changes going on from time to time. Tournaments are held online, as well as in offline mode; So, Copyright plays a huge factor, and one should be cautious to not infringe any rights. The ever-growing industry of Esports does not just bring with it billions of dollars in the market but also bestows responsibility on the shoulders of Intellectual Property Rights whilst increasing the significance and usefulness of it in every aspect of E-sport’s presence. 

References

1. https://www.lemur.legal/post/intellectual-property-in-the-world-of-esports.
2. https://abounaja.com/blogs/world-of-esports-and-intellectual-property.
3. https://blog.ipleaders.in/highlighting-complex-relationship-esports-intellectual-property-rights/.
4. https://www.marks-clerk.com/insights/ip-and-the-rise-of-esports/.
5. raconteur.net/legal/intellectual-property/video-game-copyright-law/.

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