Fortnite, Copyright, Twitch, and YouTube:

One of these things is not like the others, one of these things just doesn’t belong….

by Erica A. Fishel

Introduction:

I did not have a gaming console growing up but many of my friends did, so when I would go to a friend’s house for an afternoon or a sleepover we would often spend hours playing games. Taking turns playing, I remember my friend Beth needing to repeatedly tell me the names of each of the buttons on the control and what they did. The way I played “The Legend of Zelda” was very different from how she played; I spent much of time roaming around the castle, while she preferred to take on bosses and level up. But much more than playing the games myself, what I enjoyed most about video games was watching my friends play.

Today, my love of watching video games being played continues. I often will ask my husband to play “Fortnite” so that I can sit on the couch and watch. And while I’m sure Google knows, I am not sure I care to add up the number of “watch hours” I’ve spent on YouTube watching someone play “Sims” or “Animal Crossing.” And when my friends make comments about not understanding how their kids can spend hours watching “Roblox” videos, I cannot relate. For me, watching another person play a video game takes me back in time.

Now, however, not only am I interested in watching video games being played, I am also interested in intellectual property rights. As such, I find myself looking at these videos in a whole new light.

Here, I present some of the issues relating to copyright law and live streaming, as well as some ways to avoid potential copyright issues. This page was created in partial fulfillment of my Advanced Legal Research course at Seton Hall Law. I hope you find it helpful!

Disclaimer:

And because I feel that I must… this is not legal advice. Everything I present here is for informational purposes alone and not for the purpose of providing legal advice. I am not (yet) an attorney and I am not your attorney. Nothing here should be used to construe an attorney-client relationship. You should contact your attorney to obtain advice about any particular issue or problem.

Types of Intellectual Property (IP)

All of Patents, Copyrights, Trademarks, and Trade Secrets are “products of the mind.” It is an individual who creates the intangible good, it is a government (usually state or federal) that determines if and how to protect it. And nearly all governments recognize the importance (usually driven by economics) of intellectual property protection, although governments may and often do differ in what and how they protect intellectual property rights.

i) Intangible products of a mind

ii) Protected by government

iii) Recognized as important worldwide

What is Copyright?

From Title 17 of the United States Code, a Copyright is defined as: A form of protection provided by the laws of the United States for "original works of authorship", including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations. "Copyright" literally means the right to copy but has come to mean that body of exclusive rights granted by law to copyright owners for protection of their work. Copyright protection does not extend to any idea, procedure, process, system, title, principle, or discovery. Similarly, names, titles, short phrases, slogans, familiar symbols, mere variations of typographic ornamentation, lettering, coloring, and listings of contents or ingredients are not subject to copyright.

You can find more details about what is and what is not copyrightable subject matter in 17 U.S.C. 101, 102, 103, 104, and 105.

How do I get a copyright?

It is a right granted by the Federal Government. You or your attorney fill out the necessary paperwork and file with the United States Copyright Office.

What can I do with MY Copyright?

Getting a copyright to your work provides you with exclusive rights (bundle of divisible rights) to: Reproduce, Create derivative works, Distribute, Publicly perform, Publicly display, and implicitly, the right to not do any of these.

You can find more details about what rights a copyright grants in 17 U.S.C. 106 and 106A.

Why would I want a copyright?

Holding the copyright allows an artist the: right of accurate attribution, right to remove attribution of modified work that would be destructive to artist’s honor, right to prevent modification of work that would be destructive to artist’s honor, Right to prevent destruction of work of recognized stature.

I’ve heard of “fair use” … what’s that?

17 U.S.C. 107 states that: 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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(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.

You can find out more about fair use on the US Copyright Officer’s fair use index.

And what does all of this have to do with Video Games?

Many video game publishers (like Epic, Riot Games, Roblox, Electronic Arts, Steam, etc.) enter into licensing agreements with artists to pay the artist for the right to use their copyrighted work. Some of these license agreements are formed by the artist working for the company directly (e.g. an employee who draws the Fortnite game map) and some of these license agreements are entered into by an artist (e.g. a song artist whose plays on the “radio” in-game).

And what about YouTube?

Generally, YouTube videos of gameplay feature more than merely the gameplay screen. YouTube videos of gaming often show the face of the gamer or include video effects (such as a pop-up with commentary). In this way the YouTube video would likely be considered a derivative work where the video game company still own the rights to the video game and the YouTuber owns the rights to his/her additions. Moreover, YouTubers who feature video game content typically drive interest in the game, so many video game companies see YouTubers as beneficial.

However, many video games also include music and by playing the song via gameplay, a YouTuber would likely be considered to be acting to distribute and likely violating 17 U.S.C. 106.

You can find out more about derivative works here.

And what about streaming?

Here, this is where things get more complex… If a streamer is merely playing a video game and not adding their own content (such as verbal commentary about gameplay or sound effects generated outside of the game) then the content of the stream is primarily the game and the streamer would likely be considered to be acting to distribute and likely violating 17 U.S.C. 106.

And, just like with music as part of a YouTube video, if during gameplay a song is played, it is possible that here to a streamer would likely be considered to be acting to distribute.