Copyrightability of Esports: Perspectives from the USA
174 Pages Posted: 5 Feb 2021
Date Written: November 1, 2019
The legality of video games and esports incorporating them has been traditionally offered legitimacy through copyrights. Essentiality of copyrights however does not outweigh the requirement of trademark protection for the logos, marks, trade secrets etc. and patent protection for the gaming console industry, artificial intelligence, and handheld devices etc. But what makes copyright as the most relevant foundation for rights protection within the virtual industry is the long durable coverage it provides to the expression of creativity, originality and skills without the hassle of registration. This cover is inclusive of not only the literal expression of the ‘video-game’ but also the experience surrounding it. Experience around ‘video games’ has been historically known to include the aesthetics, characters, art-work, music, plot and other similar audio-visual elements like the avatars, skins, alter-egos etc.
One of the biggest dilemmas in the legal evaluation of copyright structures in the age of video games is their functional, material and rule constrained interaction with the consumerist world. This consequential interaction with end-users or players in this context makes it difficult to allocate copyright in a well-defined manner. During the age of the arcade, games were first-generational and therefore devoid of the audio-visual marvels that the current generation of video-games possess, making it easier for arcade titles to avoid user claims over copyrights. With the advent of graphic-heavy age of video games in the ongoing era, it has become increasingly a roadblock for the existing copyright law to account for the rights of the players & third parties, reinforced out of their performance and plays involving the original video game content.
This begs the question before the judicial forums to interpret archaic age-old laws for the convolutions infesting the modern disputes in video gaming and esports. Verdicts on video gaming disputes have come thick and fast in the last few decades but with varied results and are geographically limited to developed jurisdictions like the US and the EU. With the debate on the copyrightability of video games getting settled, the US and EU have moved affront with the newer conflicts involving derivative rights and UCC. However, jurisprudence in developing common law jurisdictions like India is still under shallow waters and waiting for its judgment call.
Keywords: Copyright, Esports, Video Games, Performance
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