A lot of people watch eSports. And I mean, a LOT. This past year, the global audience for eSports, including both hardcore and causal viewers, reached a total of 380 million people. This number continues to grow, and with all those eyeballs watching tournaments comes prime advertising and promotional opportunity.
This is where intellectual property (IP) rights–in particular, copyright and trademarks–start to matter. Game publishers, orgs, and sponsors all have unique sets of IP issues to consider. But players often forget that they, too, have IP rights.
To illustrate how IP comes into play during eSports broadcasts, let’s use a simple comparison to traditional sports. Professional and college-level sports are broadcast on TV and on the internet. During games, athletes wear jerseys sporting their team logo, and advertisements can be seen in the stadium, in commercials, and through player sponsorships. All of these promotional elements are protected by some form of IP right. The same applies to eSports.
A major difference is that the only IP that athletes own is their likeness or image rights (i.e., rights to their name and face). But usually, this is taken care of collectively by players’ associations who handle likeness rights for each athlete in a particular league. For example, the NHLPA licenses the collective likeness rights of every hockey player in the NHL. This allows game publishers like EA to obtain rights in bulk to use the names and faces of real-life players in their sports games.
For an eSports player, there are more than just likeness rights at stake. Unlike athletes, eSports players can be identified by their gamer tag or nickname. Sponsors can advertise directly on players’ jerseys. And players who choose to stream in their spare time can have copyright protection over their Twitch overlays and stream footage.
Here are a couple of other key IP rights you should consider protecting as an eSports player:
Much like how there is no copyright protection for an athlete’s performance in sports game, there are no IP rights in a player’s performance in a match. This is because under copyright law, sports games and eSports matches are not scripted, and the outcome depends on the performance of the opposing team. In other words, it is extremely unlikely that exact matches can be reproduced consistently. So, since there is no fixed work, there is no copyright.
There are, however, IP rights in eSports match footage. Usually, the footage is owned by the tournament organizer or broadcast service. But if you are casting (or commentating) a match, depending on the agreement made between you and the footage owner, you may have some IP rights in your own cast.
I use this phrase to cover the range of protectable material that a player associates with themselves, such as their gamer tag or any catch phrases they use regularly and exclusively.
Personal branding is key to distinguishing yourself as a gamer or streamer. Trademarks, nicknames, and taglines are occasionally used by athletes (think Usain Bolt’s lightning pose or Michael Jordan’s “Air Jordan”), but they are much more integral to a gamer’s identity. Branding affects how you build a following, produce content, and interact on social media.
When developing your gaming persona, it is good practice to make sure that (a) you’re not using someone else’s pre-existing tags, phrases, or material, and (b) no one else is using yours. Personal brand elements are valuable, so you may also consider registering your trademarks for extra protection.
This only scratches the surface of what IP rights are involved in eSports. There are also sponsor trademarks, media rights, and merchandising, as well as underlying rights to the game owned by the game publishers. But for now, keep your personal rights in mind as you level up your eSports career.
And remember, as gamers who just happen to be lawyers, we’re always happy to help. Just give us a shout.
