On February 5, 2024, PCS Avocat was invited to appear on the set of Le Monde du Droit by Arnaud Dumourier to discuss video game law and the legal framework for the gaming industry.
Asked about the legal issues related to the protection of video games, Mr. Chomiac de Sas addressed various contemporary issues affecting the video game industry today, focusing on a key concept: ownership of intellectual property rights in video games and their use.
Video games : Player-generated creations, mods & fan games & intellectual property
Protecting video game intellectual property is a key issue for studios and publishers. In an effort to extend the lifespan of games and improve the user experience, many publishers have gradually embraced the ability for players to edit, modify, and create additional content within the video game itself.
This development in video games, which allows the player community to appropriate and personalize content, has led to the emergence of a wide variety of game mods, some of which have achieved considerable success, even inspiring new video game genres.
Several video game publishers encourage this type of practice, contributing to the development of the game, including Bethesda Softworks, responsible for The Elder Scrolls and Fallout franchises, and Valve Corporation, owner of the Steam platform and publisher of the Half-Life franchise.
This is how map editors, the availability of video game engines, and a variety of ways to customize video game characters, objects, and even scenarios emerged. Reverse engineering of consoles and the analysis of video game source software also led to the emergence of “fan games,” using all or part of the video game assets or lines of code.
All of these creations raise an important legal question: who owns the intellectual property of the new content created within the video game? Legally, the majority of these creations are considered composite works within the meaning of the Intellectual Property Code:
CPI, Art. 113-2, paragraph 2: “A new work into which a pre-existing work is incorporated without the collaboration of the author of the latter is considered a composite work.”
By exploiting all or part of the elements of the original video game, the use of the mod is necessarily subject to the authorization of the owner of the video game rights: the publisher.
Otherwise, operators will be guilty of infringement, unless the video game has fallen into the public domain. As such, video games accessible as “abandonware” remain subject to copyright, even if the game publisher offers its video game for free.
Provided they can prove that they created original elements in terms of gameplay, scripts, graphics, etc., creative players could benefit from copyright protection only for elements external to the original game.
As part of the very development of video games, publishers are increasingly strictly regulating the use and exploitation of player-created content. It is therefore common to find in the EULAs a certain number of provisions providing for general or even discretionary control of the content generated by the gaming community, prohibiting, for example, the use of pre-existing content protected by copyright, the integration of illegal, inappropriate, or immoral elements, etc.
Recently, clauses have also appeared that automatically and immediately transfer all rights associated with a creation made by players, or failing that, grant an operating license under the broadest possible conditions.
Monetization. The involvement of the gaming community in the creation and development of mods quickly raised the question of their monetization. Given the limited rights modders have over their creations, publishers have proposed several solutions aimed at exploiting mods while ensuring revenue sharing with developers, notably Valve.
However, most attempts have encountered technical difficulties, as commercialized mods must ensure sufficient compliance and functionality with regard to consumer law.
Ownership of video games and accounts by players
Historically, video games were distributed via physical media: floppy disks, cartridges, CDs, etc. Today, the digitization of society and the dematerialization of its products/services have rendered this type of media obsolete in terms of software. Accessible and downloadable from the internet, players still hold a license to use the video game but have lost ownership of the physical media and, consequently, the ability to resell it.
The same applies to player accounts on dedicated platforms such as Steam.
On October 21, 2022, the Paris Court of Appeal, in a reversal decision, upheld the intellectual property rights of customer accounts in favor of the Steam platform, owned by Valve Corporation. Initially referred to by the association Union Fédérale des Consommateurs Que Choisir (UFC) (20/15768), the Court of Appeal specifically refused to declare unwritten a clause in the general terms and conditions prohibiting users from reselling a game downloaded from a platform – without a physical media.
Criticized by many players and gamers, it deals a definite blow to the second-hand digital video game market to better protect video game studios and publishers, recalling classic rules of consumer law.
For several years, courts have recognized the theory of exhaustion of distribution rights, applicable to computer programs made available for an unlimited period by download (Used Soft judgment of July 3, 2012 C128/11). It allows tangible or intangible copies of a computer program to be freely transferable, as the author cannot oppose the free circulation of a work commercialized with his or her consent in the European Union.
However, video games are not limited to their simple software dimension and can therefore be freed from this case law as a complex work. The French court was thus able to recognize that the theory of exhaustion of rights cannot apply to digital copies of video games. To date, it is therefore impossible for players to resell their dematerialized video games or associated accounts without infringing the intellectual property of video game publishers and platforms.
Digital assets in a video game
In the same spirit of extending the gaming experience for users and diversifying the ways to monetize their content, video game studios have implemented a variety of digital tools for the benefit of players: new items, character customizations, skins, in-game items, extra lives, etc.
The question of the patrimonialization of these additional assets purchased by the player has gradually arisen in recent years, resulting in a simple licensing fee for the benefit of players and users, without running the risk for publishers of potentially having their status reclassified as that of online casinos.
Intellectual property of video game streaming
French law applies a variety of legal regimes to communications, based both on the content in question and the intended broadcast medium: television, radio, internet, private messaging, etc.
Many broadcasts of video game content, particularly esports competitions, result from a production involving a variety of actors generating a work that is alternately collaborative, composite, or even collective, subject to the authorization of all participants, primarily video game studios.
For example, the publisher Riot Games, the creator of the game “League of Legends,” announced in 2017 that there would remain only one French streaming platform dedicated to broadcasting European and American competitions, a platform chosen at the publisher’s discretion. In 2016, BamTech, a subsidiary of Major League Baseball, obtained exclusive streaming rights for $300 million—the latter being free to monetize the video streams broadcast.
During 2017, Disney became the majority shareholder of BAM Tech and entrusted the distribution of content to its own ESPN+ platform, an agreement renewed since that date.
Broadcasters’ own copyright. Depending on the production resources used and the broadcasters’ own contributions, they may assert their own copyright under the conditions set out in the Intellectual Property Code.
Content published and rebroadcast on the internet has the particularity of being, in a quasi-altered or transformed form, making the identification of authors and rights holders particularly complex. Productions involving the development of brands, domain names, names, and pseudonyms of hosts and broadcasters are also protectable, as their registration as a trademark constitutes the first and best guarantee against any use or parasitism by third parties.
Streamers’ copyright. Based on the criteria set out in the Intellectual Property Code requiring an original creation marked by the personality of its author, content created by streamers during a video game competition appears eligible for independent copyright protection.
Like radio reports or sports commentaries, the latter, subject to their originality, offer commentaries enhanced with additional staging elements which may include music, sounds, sound effects, sets, disguises, etc.
