NERF THIS: COPYRIGHTING HIGHLY CREATIVE VIDEO GAME STREAMS AS SPORTS BROADCASTS.

• Author: Ball, Madeleine A.

TABLE OF CONTENTS INTRODUCTION 254 I BACKGROUND 256 A. The Esports and Live Streaming Industry 256 B. Foundational Case Law 261 1. Video Came Precedent 261 2. Other Compelling Precedent 264 II. STREAMS AS COPYRIGHTABLE BROADCASTS 266 A. Fitting the Black Letter Copyright Law 266 B. Analyzing Streams Under Baltimore Orioles 270 III COUNTERARGUMENTS 277 A Addressing Midway 277 B. Derivative Works 278 C Public Performances 283 CONCLUSION 284 INTRODUCTION

Since the 1980s, video games have grown exponentially as an entertainment medium. Once relegated to the niche subcultures of nerds, video games are now decidedly mainstream, drawing over 200 million American consumers yearly. (1) As a result, the industry has stepped up its game. No longer simply a diversion to be enjoyed individually, Americans are increasingly watching others play video games like they might watch television. (2) This practice, where enthusiastic gamers broadcast their video game session online to crowds of viewers, is called "live streaming." (3)

While streaming has become lucrative and popular, American copyright law currently nerfs (4) this nascent industry. (5) Streams are considered unauthorized derivative works, mere adaptations of whichever video game the streamer plays. (6) Therefore, little copyright protection is typically extended to video game streams. (7) As a result, game developers can wield take-down notices with impunity, erasing a streamer's online content and, with it, their income. (8)

However, a potential remedy lies in finding streamers the independent authors of their original online videos, affording them full copyright protection. No court has directly addressed the novel, twenty-first-century issue of copyrighting video game streams, meaning the possibility hangs in a grey area of insufficient legal precedent. For example, the last time the courts considered authorship in video game performance, the games in question were simple, two-dimensional arcade games. (9) Today, many modern, competitive video games have little in common with those simplistic games, featuring infinite play combinations or algorithm-generated worlds that are virtually limitless. (10) As such, the legal analysis of authorship and originality in those 1980s cases would be entirely inapplicable to today's video game technology. (11)

Additionally, while the courts have held video game player performances to be uncopyrightable (based upon those 1980s arcade games), the courts have not looked at video game streams from a modern, twenty-first-century perspective: as broadcasts. Broadcasts are copyrightable audiovisual works that contain player performances, made protectable by originality in the camera work. (12) Initially only discussed in the context of traditional sports broadcasts, (13) there are compelling arguments that video game streams resemble sports broadcasts more than arcade performances in the eyes of copyright law. Viewed from such a lens, streamers could be considered as making their own sports broadcast, dictating what their viewers see--effectively becoming the cameramen for their own "sports" player performances.

This Note proposes that video game streams are copyrightable audiovisual works and, as full-fledged original works of authorship, should be afforded protection under the Copyright Act of 1976. (14) Part I of this Note will review the current state of the streaming industry and esports, as well as the case law most applicable to video game copyright disputes. Part II will argue in favor of the copyrightability of streams as audiovisual works, or, more specifically, as original broadcasts containing copyrightable player performances. (15) Finally, Part III will address potential counterarguments such as that Midway Manufacturing Co. v. Artie International, Inc. bars stream copyright, or that streams are classified as merely derivative works or public performances of preexisting video games.

1. BACKGROUND

   1. The Esports and Live Streaming Industry

      In 2017, Activision Blizzard launched the Overwatch League--the first concerted effort to push video game sports (called "esports") into the same realm as American traditional sports. (16) Much like the National Football League, the Overwatch League consists of regionally based teams that compete within a regular season, replete with playoffs, team rivalries, diehard fanbases, and sold out stadiums. (17) However, unlike with football or baseball, these teams compete online by playing head to head inside Blizzard's six-versus-six, first-person shooter video game, Overwatch, which is a commercial success in its own right. (18)

      Blizzard's risky decision to force esports into the American mainstream paid off. In the League's first year of existence, twelve franchise teams bought in at $20 million apiece--a staggering price tag for the barely tested waters of stateside esports. (19) The Overwatch League then went on to attract nearly $150 million in broadcast rights and sponsorship sales. (20) Continuing to expand with more teams and talent, conservative estimates predict that the Overwatch League will generate billions of dollars in revenue for Activision Blizzard over the next several years. (21)

      The Overwatch League owes its success to the relatively new way gamers enjoy video games: live streaming. In the past, games were sold with the expectation that they would be played and enjoyed privately. (22) Today, however, many video game enthusiasts not only play games, they also enjoy watching others play. (23) This practice, live streaming, involves a player broadcasting their own gaming experience, often with commentary, for viewers to watch on their computer--like video game television. (24) People enjoy watching streams for a variety of reasons. Usually, the streamer is a personally entertaining character or particularly skilled at a game. (25) Regardless, video games have developed massive value as a passive medium.

      The value of live streaming is not abstract. In 2014, Amazon bought the foremost video game streaming platform, Twitch.tv, for $970 million. (26) That is because, in 2018, Twitch boasted nearly 2.2 million unique monthly streamers with over fifteen million daily viewers. (27) With such a substantial viewership that translates into subscriptions and advertising revenue, streamers can make a comfortable living playing video games. (28) In fact, the top ten most popular streamers on Twitch each earn upwards of one million dollars per year. (29) Additionally, some of the most talented players are scouted and signed to professional esports teams, such as those participating in the Overwatch League, due in part to the visibility afforded by their Twitch streams. (30)

      In summary, the video game streaming industry has become so phenomenally lucrative and mainstream that it has made American esports, such as the Overwatch League, entirely viable. Video games now have dual value: as passive TV entertainment and as active, private entertainment. Avid gamers will now not only buy a video game to play on their computer or video game console at home, they will also pay to watch others play those same games online. (31)

      As such, without the millions of dedicated streamers showcasing new video games, honing their skills to a professional level, and generating excited fanbases, it is incredibly doubtful anything like the Overwatch League would ever exist. For this reason, it is particularly troubling that live streams are currently regarded by industry professionals as either a type of tolerated copyright infringement or narrowly allowed under certain provisions in the game's license. (32) As such, streamers have very little ownership and legal control of their streaming videos, which game publishers can take down with ease. (33)

      Examples of video game publishers pulling streamers' content abound, demonstrating the little power professional streamers have in keeping their content, and thus their careers, online. In 2017, professional (and exceptionally controversial) streamer, Felix "PewDiePie" Kjellberg received a Digital Millennium Copyright Act (DMCA) takedown request from game publisher Campo Santo, ordering Youtube to delete any of Kjellberg's past and future streams featuring Campo Santo games. (34) A cofounder of Campo Santo accompanied the DMCA takedown with a statement that he was "sick of this child getting more and more chances to make money off of what we make," (35) echoing a sentiment that streamers have no ownership over their videos.

      Other game publishers have similarly attempted to limit how users stream their games. Atlus, the developing studio behind role-playing game Persona 5, received widespread public criticism after it warned streamers of potential DMCA takedowns if they live streamed the game past a certain in-game date. (36) Atlus explained that they did not want the game's story, an integral aspect of Persona 5, to be spoiled online for other players. (37) After overwhelmingly negative social media response, Atlus backed away from their restriction and apologized for threatening players with copyright strikes. (38)

      While none of these cases have led to actual litigation, the potential looms as the personal stakes increase. Streamers are beginning to pin their careers and income on their ability to publish video game streams, making a DMCA takedown the potential nail in the coffin of someone's livelihood. (39) This is particularly true of some streamers who, by gaining publicity through streaming, hope to go professional and play for teams, such as within the Overwatch League. In pursuit of this dream, some streamers have even dropped out of college to stream full-time or have relocated to distant countries. (40)

      As a result, there are significant policy reasons why streamers should have some ownership power over their video game streams, particularly in copyright. Not only would streamers' careers have more security, granting copyright ownership to...