The Authors' Take - A question of (e)Sports: an answer from copyright

A question of (e)Sports: an answer from copyright

by Amy Thomas

With a void in live sport events as a result of the COVID 19 pandemic, eSports (a.k.a. competitive video gaming) have been catapulted into the spotlight. The rapid growth and relative youth of the industry mean that regulatory discussions are imminent, but many questions remain about the nature of eSports: are they ‘just’ a video game? A sport? A mix of both? As an industry fundamentally underlain with a creative work, copyright has a high stake in answering this question.

This article uses copyright as an analytical tool to better conceptualise eSports, offering an overview of copyright subject-matter from a UK perspective, both in the statutory provisions of the CDPA and judicial decisions (particularly Nova Productions v Mazooma Games and FA Premiere League v QC Leisure). Through the prism of three of the main eSports actors – the game rightsholder, tournament organiser and professional player – the article reveals a system of unprecedented downstream control facilitated by copyright ownership. This is at odds with the generally accepted conclusion that sports as such cannot be protected by copyright.

This article provokes the conceptualisation of eSports as ‘more than just a game’; instead, it should be understood as a sport which is fundamentally owned. As a result, copyright can be used to legitimate the governance of a game that impacts people’s social, economic and legal realities. Such a conclusion is sub-optimal if it does not take a holistic appreciation of the other eSports actors who contribute their skill and creativity to this industry. But if copyright is part of the problem of downstream control, perhaps it may also hold a solution. To explore this further, the article makes comparative reference to South Korea as the genesis and mecca of eSports, offering an alternative response to the boundaries of rightsholder control in this new industry.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]

The Authors' Take - How to make a video game Easter Egg: legal tips and tricks

How to make a video game Easter Egg: 

legal tips and tricks

by Anastasia Chuvaeva

The legal profession is permanently fuelled by new challenges generated by the game industry. One of such thought-provoking topics is the use of Easter Eggs. In gamedev, Easter Eggs serve to provide more exciting user experience by broadening in-game world with inside jokes and references to famous games, films, books etc. Such references to third-party works, however, may cross the line of IP infringement. 

Game developers are not the first lured to using third-party content and trying to justify such use by some ‘noble’ purpose. So, does naming a third-party content as Easter Egg makes this a novel topic for legal discussions? 

Yes and no. 

Easter Eggs do not require a new legal framework to regulate them, although finding the right legal tools to make non-infringing Easter Eggs may be a problematic task. Since Easter Eggs are not always a matter of humour, can a parody be used as a universal ‘safe harbour’? Do Easter Eggs comment on or criticize the original work? Where is this thin line between a lawful Easter Egg and a copyright infringement and how not to cross it? 

What if a game only mentions a famous character, or makes a joke about him? Is there any difference between the following types of use: (1) Superman runs cross a battlefield; (2) A main playable character of a game is a big fan of DC Comics and never takes off his Superman T-shirt; (3) A game contains a dialogue discussing a recent Superman film; (4) A game has a road sign to Smallville? 

The answers to these questions may be of interest both to those amongst us who stand as an obstacle between a game development team and their creative endeavours, and outside professionals wondering what might trouble the quiet lives of in-house counsel. 

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]

The Authors' Take - Putting a Face to the Game: The Intellectual Property Implications of Using Celebrity Likenesses in Videogames

Putting a Face to the Game: 
The Intellectual Property Implications of Using
Celebrity Likenesses in Videogames

by Yin Harn Lee

Lecturer in Law, University of Sheffield

Technological advances have allowed videogames to depict individual likenesses with an increasing degree of fidelity. Because of this, it is now not uncommon to see videogame characters bearing the likenesses of well-known celebrities. Often, this will be the outcome of a licensing arrangement between the videogame developer and the celebrity concerned. Disputes may arise, however, where a videogame developer chooses to recreate the likeness of a celebrity in its videogame without first securing the latter’s consent.

In various US states, the outcome of these disputes would be determined under the law relating to the ‘right of publicity’, which gives individuals the right to control the commercial exploitation of their name, image, voice, and other aspects of their identity; in a number of continental European jurisdictions, similar disputes would be decided under the law relating to the individual’s ‘right of personality’. The UK, however, has no equivalent legal framework. Disputes relating to the unauthorised use of a celebrity’s likeness in a videogame will therefore have to be determined under a range of different intellectual property regimes, in particular copyright law, the law of passing off, and trade mark law.

This article [which will be published as Advance Access here in a few weeks' time, and will be included in one of the next issues of JIPLP] will show that, while the unauthorised recreation of a celebrity likeness in a videogame is unlikely to amount to copyright infringement, the position may well be very different under the law of passing off and trade mark law. This is due to the expansion of the ambit of each of these regimes over the course of the last few decades. In recent cases, the courts have become increasingly willing to recognise that the likeness of a celebrity is capable of functioning as an indicator of origin and, as a corollary, to accept the possibility that the unauthorised use of such a likeness on a product may mislead or confuse the public into believing that the product was authorised or endorsed by the celebrity concerned. While the unauthorised use of a celebrity likeness in a videogame might appear to be far removed from the paradigmatic case of passing off or trade mark infringement, therefore, the applicability of these two regimes to such a scenario can no longer be dismissed out of hand.


[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP).]