Home > Journals > WMLR > Vol. 61 (2019-2020) > Iss. 1 (2019)
William & Mary Law Review
Since the 1980s, video games have grown exponentially as an entertainment medium. Once relegated to the niche subcultures of nerds, video games are now decidedly mainstream, drawing over 200 million American consumers yearly. As a result, the industry has stepped up its game. No longer simply a diversion to be enjoyed individually, Americans are increasingly watching others play video games like they might watch television. This practice, where enthusiastic gamers broadcast their video game session online to crowds of viewers, is called “live streaming.”
While streaming has become lucrative and popular, American copyright law currently nerfs this nascent industry. Streams are considered unauthorized derivative works, mere adaptations of whichever video game the streamer plays. Therefore, little copyright protection is typically extended to video game streams. As a result, game developers can wield take-down notices with impunity, erasing a streamer’s online content and, with it, their income.
However, a potential remedy lies in finding streamers the independent authors of their original online videos, affording them full copyright protection. No court has directly addressed the novel, twenty-first-century issue of copyrighting video game streams, meaning the possibility hangs in a grey area of insufficient legal precedent. For example, the last time the courts considered authorship in video game performance, the games in question were simple, two-dimensional arcade games. Today, many modern, competitive video games have little in common with those simplistic games, featuring infinite play combinations or algorithm-generated worlds that are virtually limitless. As such, the legal analysis of authorship and originality in those 1980s cases would be entirely inapplicable to today’s video game technology.
Additionally, while the courts have held video game player performances to be uncopyrightable (based upon those 1980s arcade games), the courts have not looked at video game streams from a modern, twenty-first-century perspective: as broadcasts. Broadcasts are copyrightable audiovisual works that contain player performances, made protectable by originality in the camera work. Initially only discussed in the context of traditional sports broadcasts, there are compelling arguments that video game streams resemble sports broadcasts more than arcade performances in the eyes of copyright law. Viewed from such a lens, streamers could be considered as making their own sports broadcast, dictating what their viewers see—effectively becoming the cameramen for their own “sports” player performances.
This Note proposes that video game streams are copyrightable audiovisual works and, as full-fledged original works of authorship, should be afforded protection under the Copyright Act of 1976. Part I of this Note will review the current state of the streaming industry and esports, as well as the case law most applicable to video game copyright disputes. Part II will argue in favor of the copyrightability of streams as audiovisual works, or, more specifically, as original broadcasts containing copyrightable player performances. Finally, Part III will address potential counterarguments such as that Midway Manufacturing Co. v. Artic International, Inc. bars stream copyright, or that streams are classified as merely derivative works or public performances of preexisting video games.