Owning e-sports: proprietary rights in professional computer gaming.

Author:Burk, Dan L.
 
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  1. BACKGROUND A. The Games B. The Tournaments C. The Korean Connection II. COPYRIGHT A. Authorship B. Window and Text C. Functional Constraints D. Material Constraints E. The Rules of the Game F. Games as Systems III. ALTERNATE REGIMES A. Rights of Publicity B. Neighboring Rights CONCLUSION INTRODUCTION

    One of the most astounding and largely underappreciated developments accompanying the recent proliferation of mass-market computer technology has been the rise of video gaming. (1) From arcade to console and computer desktop to interactive multiplayer network, the explosion in computer video games has been spurred by Internet accessibility, whether for downloading and updating software, tendering payment, or finding and interacting with other players. The result has been a flourishing new entertainment sector, with revenues that now consistently rival or exceed that of the established music and movie industries. (2)

    Among the notable developments associated with the rise in computer gaming has been the emergence of a small but growing cadre of professional gamers. Millions of people play computer games as avocation or amusement, but some exceptionally skilled players are intent on making a living at what has been dubbed "e-sports." (3) The advent of this new vocation has been supported and accompanied by the development of a nascent professional infrastructure with features familiar from the world of physical sports and entertainment, including tournaments, leagues, fans, teams, team owners, player contracts, sponsors, and the like. (4) Yet many gaps and ambiguities remain in these supporting institutions, including significant uncertainties in the law needed to define the formal relationships among the various actors.

    In this Article, I consider a fundamental set of legal issues, integral to e-sports, that concern the ownership and control of rights in player performances. The nature of such competitions presents a new and fairly complex practical configuration for legal analysis. Analogous questions regarding the ownership of physical performances have certainly arisen in the past, but the nature of e-sports generates certain novelties in the analysis. Unlike physical sports, where player activity is observed and recorded directly for broadcast and similar dissemination, e-sports competitions are by definition mediated by computer game software that is itself the subject of various intellectual property rights. (5) This characteristic of e-sports adds to the legal discussion an additional layer of complexity, implicating the interests of additional rights-holding entities not found in negotiations over competitive performances in physical sports.

    I begin by sketching out a few critical features of the emerging e-sports phenomenon. I then turn to the most salient theory of ownership and control over such performances, copyright law. E-sports is a worldwide phenomenon, but a comprehensive study of e-sports copyright across multiple jurisdictions is not feasible within the confines of this Article; consequently, my focus here will be on U.S. copyright law. I then turn briefly to alternate theories of performance rights found in the right of publicity and in neighboring rights. Again, my focus will be on the law of the United States, and in the case of neighboring rights, on the potential for such rights under the newly agreed-upon Beijing Treaty on Audiovisual Performances. (6)

    E-sports deserves attention, perhaps as a fascinating aspect of the burgeoning computer entertainment industry, but perhaps also as an emerging computer entertainment phenomenon in its own right. Admittedly, its social and commercial significance remains to be seen. Even if e-sports does not become as prominent as anticipated, exploring a new and expanding entertainment infrastructure is valuable because it highlights both lingering and emergent difficulties in applying current proprietary rights regimes to digital media. Analysis of e-sports underscores the issues of user participation, interactivity, and collaboration that are common to information and communication technology, with which copyright seems particularly unequipped to deal. The alternative regimes I consider also display related shortcomings when applied to e-sports, suggesting a pervasive and potentially debilitating set of juridical gaps that yet remain unaddressed in the context of digital media.

  2. BACKGROUND

    E-sports encompasses certain practices that are immediately familiar from physical sports, as well as practices peculiar to digitally mediated competition. The former, familiar practices encourage comparisons with physical sports and suggest that the treatment of physical sports under copyright and other intellectual property regimes should serve asa guide to how such regimes might treat e-sports performances. But such comparisons only hold to a certain point, as a brief survey of e-sports practices demonstrates.

    1. The Games

      E-sports tournaments employ a variety of commercial game titles; tournament games span a range of formats and organizational conventions, including both single and team play. Some games depict or mimic physical sports activities, like the FIFA football (soccer) game. (7) This title depicts team soccer, including the rules used in international professional soccer, and the display resembles the broadcast of a virtual international soccer competition. Thus, the display takes a third-person view of the gamer avatars, the field of play, and the action, sometimes from a close-up perspective, sometimes from a "pull back" perspective. (8)

      Other games, particularly those in the first-person shooter (FPS) genre, typified by the game Counter-Strike, are oriented toward action or combat activity. (9) FPS games depict an armed character traversing a landscape punctuated by obstacles and barriers, shooting at, and generally being shot at by, human or computer-controlled opponents. (10) The games are designated "first-person" because the interface is somewhat unusual, generating a player's eye view of the action, as would be seen by an individual in the field of play, rather than an objective bird's eye or "god's eye" view of the game action. (11)

      Yet other tournament games are drawn from real-time strategy games (RTS), such as Blizzard Entertainment's StarCraft and StarCraft II. (12) In these games, which some players compare to chess, (13) the player deploys pieces such as military units to achieve objectives across a broad map. StarCraft in particular has become a mainstay of professional tournament play. (14) Less popular but still significant are multiplayer or massively multiplayer online role playing games (MMORPGs or MMOs) such as Blizzard Entertainment's World of Warcraft titles. (15) These depict player characters competing in scenarios drawn from fictional genres, such as science fiction of medieval fantasy, with all the spacecraft, aliens, ray guns, dragons, wizards, and enchanted swords that such milieux entail. (16)

      What is perhaps most striking about this collection of standardized tournament titles is that they are all relatively old as computer games go. In an industry characterized by rapid product turnover, where new titles and frequent updates appear year in and year out, veteran titles such as Counter-Strike and StarCraft have long since been overtaken by newer titles. (17) This disjunction perhaps speaks to differing speeds of technological and social establishment, and differing types of social niches for gaming. New games, whether electronic or physical, may be quickly adopted by consumers for personal play; however, professional play in competitive games of any sort requires some time for the game to become stabilized, for a fan base to develop, and for the business and vocational infrastructure to accumulate. New physical sports sometimes enter the Olympic or professional canon, but not with great frequency, and not immediately with popularity. Some of the same dynamics are apparent in the e-sports arena. B. The Tournaments

      The e-sports industry currently presents a nascent structure that one team owner has compared to the state of American baseball when the first vestigial forms of the current team, league, and ownership structures were emerging. (18) Some e-sports teams, leagues, and tournaments have become relatively stable, while others come and go. (19) Business models are in flux, some gravitating toward the broadcast contract model common in high-profile professional sports; other models gravitate toward Internet-based viewing and dissemination. (20) Some team owners are able to turn a profit, but by no means the kind of multi-million dollar revenues found in prominent physical sports. (21) Professional players are able to make a living, and some few are able to make a comfortable living, (22) but the astronomical salaries paid in some professional sports are at this time foreign to e-sports. (23) Team owners often handle the roles of financier, talent scout, recruiter, and promoter all at once. Certain support structures have yet to emerge; for example, T.L. Taylor notes, significantly, that the position of coach, a pivotal role in most professional sports, has yet to emerge in e-sports. (24)

      Networked video gaming tournaments in the United States began before the advent of the public Internet, using either local area network (LAN) connections at the venue or standalone machines. (25) Many tournaments are still organized on the LAN model, (26) and console play on Xbox or Nintendo devices is becoming increasingly common. Nonetheless, the availability of widespread Internet access has been critical to the development of the e-sports phenomenon. Players frequently arrange online skirmishes for practice, and may find new partners or teammates via Internet play. (27) Much of the audience for tournaments "attends" via the Internet. (28) While some matches are televised--primarily in jurisdictions outside the United...

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