Intellectual Property Law and Its Impact on The Esports Business Ecosytem

This chapter explores some intellectual property matters related to video games and esports. In particular, it surveys two major intellectual property protections, copyright and trademarks. This section includes general information on copyright in video games as well as examining how each of these legal mechanisms protects professional gamers, gaming “influencers,” and professional esports organizations and teams.

Copyright Law

One important legal protection available to secure and protect esports individuals and companies’ creative assets is copyright law. Copyright law grants the owner of a protected work the exclusive right to it for a limited duration of time. To be eligible for copyright protection, a created work must be original and fixed in a tangible form, such as a sound recording fixed on a CD or a literary work printed (affixed to) on paper.563 Many types of works are entitled to copyright protection, including original literary works, dramatic works, choreography, musical works, audiovisual works, and any other graphic or artistic work.564 Some of these could be poetry, motion pictures, songs, computer software, dance choreography, photographs, and comics.565 It is important to be aware that copyright law does not protect facts, ideas, systems, or methods of operation.566

In the United States, the Copyright Act provides the owner with five exclusive rights in their protected work.567 These exclusive rights include (1) the right to reproduce the work; (2) the right to distribute the work; (3) the right to prepare derivative works based on the original one; (4) the right to publicly perform the work; and (5) the right to publicly display, including the exclusive right to do and to authorize third parties to create copies of the existing work.568 This statutory language means that the copyright owner has the exclusive right to prepare and approve others to create a “derivative” work based on their original protected work. A derivative work could be a sequel or spin-off of the protected work, such as a motion picture existing as a derivative work of a particular literary publication. The owner is also provided with the exclusive right to publicly distribute copies of the work, including through sale, rental, or lease. This could include selling copies of a novel or a video game. Additionally, a copyright holder has the right to publicly perform and display the work. This right includes publicly playing a musical recording at a nightclub or other public space. For any works created on or after January 1, 1978, copyright protection lasts for the life of the author plus 70 years after the author’s death.569 This time period permits an owner’s heirs to monetize the protected works after the original creator’s death.

While it is widely established under international copyright treaties, such as the Berne Convention, that a copyright is automatically created when an original work of authorship is fixed in a tangible medium of expression, a formal registration of the creative materials with the United States Copyright Office within three months of publication provides valuable benefits to the copyright owner.570 One of these benefits include that the work is a matter of public record, so it is available for search within the U.S. Copyright Office database. This makes it easy for any individual to search and to verify the exact ownership information of an existing copyrighted work. This also permits an individual to quickly ascertain a copyright owner’s contact information in the event that the individual desires to use or otherwise license the copyrighted material. A valid registration certificate also constitutes prima facie evidence of valid copyright ownership of the work after five years.571 It also permits the owner to easily license and catalog the various rights an owner possesses in their works, which is extremely beneficial when working with potential brand partners.

Additionally, prior to instituting a lawsuit for copyright infringement, which is a claim where an author believes that one of their copyrighted works has been infringed upon, the work must be registered with the U.S.

Copyright Office.572 Furthermore, if the owner has filed for registration prior to the alleged infringement or within three months of initial publication of the work, the author may be entitled to recover actual damages incurred, statutory damages as well as the attorney’s fees spent in pursuing the matter.573 In some cases, these legal fees recovered can even exceed the actual damages suffered by the copyright owner.574

Registering a copyright is as easy as preparing and submitting an application to the United States Copyright Office with the appropriate filing fee. After the submission is filed, the applicant then uploads a “deposit” copy of the copyrighted material with the Office.5 5 Once the work is registered and the registration certification is issued, the benefits of the registration begin immediately and are retroactive to the application’s initial filing date.

A protected work can also exist in a “joint-work.”576 These are ones that are created by two or more individuals, where one of the creators, at time of conception of the work, intends to merge or otherwise mesh his or her work with another’s creation.5 7 This means that the joint-creation must be prepared by this author “with the intention” that the different creator’s contributions will be merged together “into inseparable or interdependent parts of a unitary whole” with each author contributing separate material that “could have been independently copyrighted.”578 However, in these situations, each author’s contributions to the final work do not have to be equal nor do the authors have to be physically located next to each other or even need to create the work at the same time.579

Generally, each co-author will own an equal ownership share in a jointwork unless otherwise agreed to in a signed writing. This is true even if one of the co-creators has contributed a greater quantity toward the completed work than the others. Additionally, since each co-author owns an “undivided” interest in the entire work, each co-owner is only permitted to grant non-exclusive licenses to third parties without the other owners’ permission. This is subject to an accounting of any profits to the other co-owners earned through this license. However, in these situations, in order for an individual to issue an exclusive license, prior approval by all of the owners of the work is required. Each co-author can also fully assign his or her ownership share in the joint-work to a third party as well as bequeath his or her ownership share to his or her heirs.580 Finally, each co-owner is entitled to equal authorship credit for the joint-work. The length of a copyright for a “joint-work” is 70 years after the last surviving author’s death.581 However, as with most arrangements, the parties can agree and negotiate any appropriate parameters or contractual terms that govern their ownership interests.

In conclusion, it is important to understand the applicability of copyright law as it relates to video and computer games, both of which are protectable assets that can be sold, licensed, and otherwise distributed by the game’s owner.

 
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