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Often overlooked, video game players have a multitude of rights when it comes to their consumption of video games. Specializing in digital law, the firm has endeavored to provide a summary of these rights.
Understanding these rights is beneficial to players in defending their interests, as well as to game studios and publishers, who can better understand their relationship with their target audience.
Mods, Fangames & Player Creations: Intellectual Property Rights
Warcraft III map editor, Gary’s Mod, Minecraft, etc. These are all games characterized by a high degree of customization of game content by player users.
Legally, certain creations push the boundaries of intellectual property, which is often exclusively reserved for the game publisher. Indeed, subject to compliance with the conditions set out in the Intellectual Property Code, the originality of certain contributions, imbued with the personality of their author, would offer protection for composite works.
Negotiations with publishers for the exploitation of these new forms are likely to take place, often anticipated through the terms and conditions offering the publisher a right of exploitation over all compositions and creations proposed by players. Some have resulted in famous collaborations—the third installment of the Portal franchise, “Mel Stories,” supported by fans with the publisher’s consent—or epic disputes, notably over the ownership of the game Dota and its derivative forms, including League of Legends, DotA 2, Heroes of the Storm, and all other MOBAs.
Playing, glitching, cheating: Suspensions, bans, and player exclusion
Whether historically in paper format inside boxes or in digital form when downloading and installing the game or even when launching it, the publisher regulates the use of the game through terms and conditions specifically called “End User License Agreement (EULA)” that the player must accept and, if possible, read.
This contractual framework defines, more or less clearly, the rules of the game as well as prohibited or even punishable practices: cheating, multi-accounting, farming, buying and reselling goods, behavior contrary to public decency, insults in chat, etc.
There is some confusion regarding the terminology used to describe the control of player behavior by publishers, who present themselves as arbiters and judges of practices that may result in fines, penalties, warnings, convictions, etc.
However, these policing measures do not reflect the reality of the relationship between the player and the publisher, which is governed by simple civil and contractual considerations. Therefore, any disproportionate sanction imposed by the publisher on players for their use of the game could be considered an abuse of rights.
More information on these aspects can be found in our dedicated publication.
EULA & unfair terms. However, players are not powerless in the face of such arbitrary control. As consumers of digital products and services, they are protected by the Consumer Code and all related measures. EULA clauses allowing the publisher to terminate the contract without reasonable notice may be unfair. Imprecision in the rules of the game, for example regarding the definition of cheating, possible penalties, and the scope and duration of penalties, may result in legal sanctions against the publisher—decisions have already been made in this regard concerning social media platforms.
Consumer Code. More generally, through the various obligations incumbent on publishers providing services in terms of the obligation to provide honest and fair information, players have the right to uninterrupted use of a product that meets the usual qualities and expectations, particularly in terms of functionality, accessibility, continuity, and support. They can therefore require the publisher to:
- Compliance of a product deemed and documented as faulty or defective;
- The removal or non-application of clauses deemed unfair, in particular the suspension or termination of service without prior notice or without explicit reason;
- Various types of compensation in the form of price reductions or even damages;
- Financial penalties, particularly in the case of practices deemed misleading or illegal;
A very important element is that the Consumer Code places a significant part of the burden of proof on the publisher, who is responsible for proving that its content complies with the law.
Social Networks & Media: Streaming Your Video Game
Twitch, a platform for hosting streaming audiovisual content, has experienced considerable growth in the gaming sector, with streamers broadcasting their video game sessions, commenting on their actions, and interacting with their audience through the integrated chat feature.
The production efforts of certain content creators make them eligible for a form of protection under intellectual property law as composite works, subject nevertheless to prior authorization from the publisher. In order to promote the development of channels, several platforms, including YouTube Gaming and Twitch, have negotiated agreements with numerous publishers to allow the free distribution of in-game content.
In esports, competition communication strategies vary depending on the publisher, with some, such as Riot Games, exercising extensive control over exclusive broadcasting rights for competitions, while others allow all influencers and streamers freedom to broadcast.
Video game competitions: the rights of professional esports players
The practice of esports in video games has given rise to a new professional category: professional esports players. Since 2016, their legal framework has been largely inspired by the rules applicable to athletes: esports players have the status of employees whose paid activity is participation in video game competitions in a relationship of legal subordination to an association or company approved by the Minister for Digital Affairs.
Notwithstanding the rules established by the legislature in the 2016 Digital Republic Act, legal relationships between esports clubs and players can take various forms in practice: internship or volunteer agreements, fixed-term or permanent employment contracts, and service provision contracts.
More information on protecting the health of esports players
Other considerations may also be considered:
Privacy and legal identity. As a natural person in the legal sense, professional esports players benefit from rights associated with their person: privacy and image rights, as well as, in a digital context, the right to their personal data. Any violation of any of these rights will allow the player to object to the disclosure of their private life on both civil grounds (Art. 1240 of the Civil Code) and criminal grounds (Art. 226-1 and 226-8 of the Criminal Code), notwithstanding some legal and jurisprudential exceptions related to freedom of expression and public information.
Player avatar. To a lesser extent, it would be possible to seek protection of digital identity, particularly through the player’s avatar in video games. Several video games offer digital creation tools that allow the generation of a personalized avatar, more or less detailed depending on the options offered. Damage to the avatar can jeopardize the player’s reputation and personal investment. The player can thus protect himself from any damage to his digital attributes, particularly in the event of theft of virtual objects, cyber-rape, or damage to his reputation.
Image exploitation. For its exploitation, several types of exploitable images of esports players can be distinguished: the associated, collective, or individual image managed by their esports club; the individual image used personally by the player; and finally, the image during esports competitions.
Finally, it should be noted that there are additional difficulties in using and exploiting their image given the minority status of many of those involved. As with artists, models, or young athletes, additional rules based primarily on parental authorization will apply.
The existence of rights associated with the player’s performances during competitions, as a performing artist, is frequently invoked or debated without serious relevance.
Propriété du jeu et des achats in-game
A hot topic for the past decade, digital property ownership has impacted the video game industry with the gradual dematerialization of content. Following the end of the sale of physical video game media, players’ rights to purchased video games and their in-game content have been challenged by European case law on the matter.
The current legal framework severely limits players’ ownership, restricting them to a simple user license that can be transferred and revoked at any time by publishers. In a well-known dispute between the Steam platform and the UFC Que Choisir consumer association, recent case law, notably the ruling of the Paris Court of Appeal of October 21, 2022, confirmed that users cannot resell their digital games or associated accounts due to the lack of exhaustion of copyright for digital copies, thus protecting publishers from the digital second-hand market.
This position also extends to in-game content (virtual objects, skins, etc.), the general conditions of the platforms prohibiting any purchase or resale of these goods except in very rare exceptions in the case of NFTs or through a goods exchange platform owned by the game publisher.
Find our legal publication detailing these issues
