Video game competitions: Esports broadcasting versus intellectual property and copyright
The years 2017 and 2018 were marked by considerable growth in video game competitions, more commonly known as esports.
Media coverage and increased popularity of the activity, along with the involvement of new players—press groups, sports clubs, and advertising agencies—are investing in this new form of entertainment, which in 2018 represented a market estimated at over $900 million.
The most recent example is Epic Games, which recently expressed its desire to develop esports competitions for its latest game, “Fortnite,” which already boasts over 125 million users a year after its release.
Greatly facilitated by the establishment of a separate legal framework, the legal framework for esports in France has largely drawn inspiration from sports law.
The regulations governing sports competitions and the status of video game players, as outlined in Articles 101 and 102 and subsequently clarified by the implementing decrees of May 9, 2017, nevertheless raise numerous questions regarding the relationships between the various stakeholders in esports, particularly concerning intellectual property.
The ownership and broadcasting rights for video game competitions represent a significant economic stake.
E-sports: The central role of publishers in the exploitation of video games
The provisions of the LRN (Law on Digital Rights) and the new legal framework define the conditions for organizing esports tournaments, in which publishers retain a central role.
As the sole owners of the games they use, publishers have shifted their offerings to now primarily grant licenses for the use of their products.
Governed by terms of use and operation, game publishers explicitly reiterate their retention of all intellectual property rights to the game, including for commercial use or specifically for video game competitions, and all revenue generated directly or indirectly.
In this respect, video games today constitute a true vector for the manifestation of artistic expression, on the same level as cinematographic works.
Video games & esports: an autonomous legal framework establishing copyright
No longer considered software but complex works due to their collaborative or collective creation process, video games are subject to licensing agreements or even assignments, particularly to the game publishers responsible for their distribution and promotion.
Any esports tournament organization requires prior authorization from the publisher, who can define all the event’s terms and conditions, potentially also setting penalties for non-compliance or breaches by organizers and competitors.
For example, the game publisher Riot Games, creator of games such as “League of Legends,” announced in 2017 that only one French streaming platform would remain dedicated to broadcasting European and American competitions, a platform chosen at the publisher’s discretion.
In 2016, BamTech, a subsidiary of Major League Baseball, acquired exclusive streaming rights for $300 million, giving it the freedom to monetize the streamed video.
In 2017, Disney became the majority shareholder of BamTech and entrusted the distribution of content to its own platform, ESPN+, an agreement that has been renewed ever since.
This significant role of publishers—direct or indirect—in the exploitation of their video games is, however, gradually being tempered by new developments in video game practices, particularly the use of user-generated content created with freely available software.
The allocation of intellectual property rights between the creators of this user-generated content and the game publisher could thus become more complex.
E-sports: The property related to broadcasting video game competitions
The broadcasting of esports tournaments in France has generated a debate regarding the applicable legal framework. Indeed, the various broadcasting platforms—television, replay services, online platforms, and private networks—diversify the laws and regulations that may apply.
Legally, depending on the broadcasting platform, the legal classifications and resulting regimes can vary between, on the one hand, audiovisual communication, and on the other hand, online public communication, or even private correspondence.
As the historical and primary platform for broadcasting video game competitions, the internet allows for the live and/or delayed transmission of tournaments on both general public and specialized audiovisual content platforms.
This monopoly has, however, been challenged in recent years by the broadcasting of esports competitions and other programs on television channels such as beIN, L’Equipe 21, and Canal+, where many features of traditional sporting events are present—commentators, sponsors, advertising space, etc.
In this context, the ownership of broadcasting rights for the content can fall under the purview of various parties.
The Intellectual Property Code stipulates that the publication and distribution of esports videos constitutes a “communication of the work to the public,” a performance.
However, a debate regarding the classification of video games as works or computer programs could alter the application of this article.
Indeed, European case law reiterates that “television broadcasting of the graphical user interface does not constitute a communication to the public of a work protected by copyright.”
Thus, it is conceivable that the broadcasting rights for video game competitions belong to the game publisher or the event organizer who first recorded the performance, acting as the video producer.
Furthermore, and mirroring the legal frameworks of traditional sports and esports, sports federations and event organizers could be considered owners of the exploitation rights for events or competitions.
The choice of federations seems unlikely, however, as esports does not have any officially recognized federation; this term only exists in the realm of traditional sports. Numerous associations are therefore attempting to position themselves as the legitimate institution for state recognition in this sector.
All of these elements highlight the importance of contractual relationships between stakeholders who, whether intentionally or not, benefit from the esports regime’s silence and freedom to define the terms of operation and broadcasting of video game competitions.
Taking the case of Riot Games, the broadcast of the LCS was suspended in France in early 2020 due to one of its sponsors, Bud Light, a beer brand. The signed partnership resulted in a ban on broadcasts in France, Germany, and Italy.
Indeed, national regulations concerning alcohol advertising in France, specifically the Evin Law of January 10, 1911, prohibit such promotion through the broadcasting of audiovisual content.
