On the occasion of the publication of the latest issue of the Lamy Immaterial Law Review, Pierre-Xavier Chomiac de Sas and Sophie Roman presented the delicate issue of ownership of video games and virtual goods.
Massively, if not exclusively, dematerialized these days, the classification of transactions involving video games and their objects is currently largely in favor of the publisher alone. Intuitively associated with the exploitation of intangible assets, intellectual property law has been widely favored to regulate the creation and exploitation of video games.
The availability of virtual objects in video games generates legal uncertainties regarding the true nature of the rights involved. While these rights are contractually vested in the publisher, a fairer regime for the player could be considered.
Video games: Contractual ownership of the publisher’s games
It is clear that there are no specific regulations for video games: only general provisions, such as those relating to esports competitions or the protection of minors.
The diverse nature of video games complicates their legal classification, and it is primarily contract law that governs their use, with a tendency to attribute ownership of the game and its elements to the development studio.
Furthermore, there is growing confusion between buying and renting, particularly with regard to virtual objects. Although marketed as “purchases,” these objects are often accompanied by contracts mentioning user licenses, which reinforces the publisher’s position regarding control over virtual goods.
This confusion has been particularly problematic in cases such as the Second Life metaverse, where questions have arisen regarding the representation of real property rights and financial transactions.
Finally, there are risks for publishers, notably the legal reclassification of certain video games as gambling, particularly if players can buy and resell virtual goods at a profit. This situation could lead to stricter regulations, such as those against addiction and the protection of minors.
An example of this risk is that of “Loot Boxes,” virtual chests sold for a sum of money and offering random in-game benefits. These items have raised concerns because their operation resembles gambling, leading to regulations and sanctions in some countries. In France, the National Gaming Authority has proposed criteria to determine whether loot boxes should be considered games of chance, including the possibility of payment, the random nature of winnings, and the possibility of reselling the items for real currency.
Video Game Ownership: What Can Players Do?
A major issue in contemporary video game practice, ownership in video games in the era of dematerialization transforms the rights attached to them for the benefit of users.
Indeed, players lose their ownership rights over the physical media of games (discs, cartridges, etc.) in favor of a simple digital license. This development has legal consequences, notably the non-application of the theory of exhaustion of rights to the distribution of dematerialized games, as was previously accepted for software. This prevents players from reselling or transferring their games, unlike physical goods.
Furthermore, players often lose their virtual items if the publisher terminates their contract, without compensation. The idea of recognizing ownership rights over these virtual items, defined as goods with a utility, is certainly attractive. However, the publisher’s almost total control over in-game items prevents this recognition.
Some authors suggest “virtual property,” inspired by real property, but the distinction between virtual and real worlds is increasingly blurred with digital objects such as NFTs, unique assets guaranteed by the blockchain. However, their legal status remains uncertain.
Finally, the SREN law of May 21, 2024, regulates monetizable digital objects, imposing strict rules to protect users and regulate transactions, under the supervision of the National Gaming Authority.
Check out our guide covering these elements.
For several years, video games have been viewed through the prism of intellectual property. As a protected work, video games, and by extension all of their integrated elements, are the creation of a multitude of authors, professionals and amateurs, publishers, and even players (A). Consequently, organizing their economic exploitation remains a major challenge, under the strictest control of the publisher, in a joint and several-person capacity.
Who owns video games? Publishers or modders?
A video game is a unique work that, due to its constant evolution, lacks a precise legal definition. It goes beyond the simple category of software by integrating diverse elements such as scenarios, music, sound effects, and animations, requiring copyright protection.
In 2009, the Court of Cassation classified video games as a “complex work,” thus protecting its various components (gameplay, design, music, etc.) under copyright. Production studios, as creators, generally hold the exploitation rights.
The involvement of players in the creation of video games, particularly through avatar customization, mods (user-created modifications), and the addition of content, has added an additional legal dimension.
Although player contributions can be protected by copyright, this protection depends on the originality of the contributions and the degree of customization permitted by the publisher. However, player performances in a competitive context, such as esports, are generally not recognized as protected artistic creations.
Mods, created by players using video game elements, are considered composite works and require the publisher’s permission for their use. Failure to comply with this requirement can lead to accusations of copyright infringement.
Several well-known legal disputes have illustrated this issue, such as the one surrounding the “DotA” mod between Blizzard, Valve, and Riot Games. Video game publishers strictly regulate the use of mods through end-user license agreements (EULAs), prohibiting the use of protected or inappropriate content.
Video games: Commercial exploitation largely controlled by the publisher
In addition to the initial sale of the game, publishers have introduced new forms of monetization, such as one-time purchases, in-game advertising, and the exploitation of players’ personal data. Practices such as “loot boxes” and “skin gambling” raise legal questions about their legality.
The exploitation of copyright through the sale of licenses, adaptations, or derivative products remains the main source of revenue for publishers. This monetization also includes the marketing of competition-related merchandise, such as toys or films.
The increasingly widespread involvement of players in the creation of mods raises questions about their participation and potential compensation. Although publishers have implemented systems to compensate mod creators, ownership rights over these creations remain limited.
Partnerships between publishers and gaming communities are increasing, but technical and legal challenges are emerging, particularly in terms of mod compliance with consumer law requirements. Furthermore, some publishers are continuing projects that use their licenses, particularly in the gaming and esports sectors.
Another issue raised is that of the operating licenses imposed by publishers, which often include clauses allowing the use of players’ creations without compensation, under restrictive conditions. Case law has clarified the legality of these clauses, some of which have been deemed abusive, but without reclassification as assignment of copyright. Thus, creative players have little freedom in the face of publishers, whose general conditions are rarely permissive.
