Sergey Barbashin, a lawyer and managing partner of Trustme Law Firm, in his article for AIN.UA explains the nuances of using copyright in streaming and video reviews.
The stereotype that video games are only for teenagers filed as a history, and we cannot but be astounded by the scale of games’ budgets. For example, Grand Theft Auto V had a budget of $265 million and the game Call of Duty: Ghosts has raised $1 billion in its first day of release. In addition, last year the commission on the recognition of sports granted e-sports the official status of a sport in Ukraine.
Today, you can not only play video games, but also watch others play (in my childhood, this was a punishment). On platforms the like of Twitch, YouTube Gaming, Facebook Gaming, gamers stream their game online. According to a report by analyst companies Streamlabs and Stream Hatchet, viewers watched 4.7 billion hours of video on the Twitch platform for the third quarter of 2020.
In October 2020, Alex Hutchinson, creative director of Typhoon Studios, an affiliated company of of Google Stadia, made a statement on Twitter that he believed streamers should pay publishers and game developers for a license to stream their games.
Let’s beat the matter out whether there are grounds for this under the law.
A video game is an integrated object of copyright. And it can consist of video, audio (and is generally considered an audiovisual work), code, unique characters and attributes, and a script. The game as a whole, as well as its components, are protected by copyright.
Video game owners (rightholders) tends to prohibit others from using the game without their permission, or grant licenses to use the game or parts of it, such as characters.
Is streaming copyrighted?
The process of the game can be described as the players’ “display” of pre-planned (coded) scripts and algorithms. Streaming is the same process of playing the game, only publicly and / or “online”, possibly followed by a recording.
The video game itself assumes its runthrough and there won’t be any unique contribution of the author (streamer) here, especially in case of a linear run of the game. Thus, streaming “as such” will not be protected by copyright.
In theory, streaming can become a separate production, provided that it is new and original, and this is not rebutted. The creative contribution of the author, which is not related to the game itself and its features, can provide the novelty and originality of streaming. For example, comments and accompanying support, a unique style of the game, an individual character, new ways of running the game, unique “builds”, plot, other personal elements from the author himself.
Or it can be a separate author’s video review of the game, which includes different video, audio, graphic images, for example, memes, parts of movies, public presentations, as well as comparisons, graphics and anything else the author decides to add – that is, the information arranged in a certain way.
This is not the first time the issue of whether or not copyrights are being infringed during streaming has come up.
In the summer of 2020, Twitch announced a ban on the use of music content during streaming, and the rules were amended: “Streaming or downloading copyrighted music is a violation of our policies, unless you own the appropriate rights or permissions to post such music on Twitch.”
At the legislative level, there is no clear answer to “whether or not the streaming process constitutes copyright infringement”. But there are a number of rules in copyright law that will help in answering this question.
First of all, this is the conception of fair use. The conception provides for cases where the rightholder’s consent to use is not required.
Norms may differ from country to country, but the point is to use it to the extent justified by the purpose. Basically, this is non-commercial use of a part of the work with a mandatory reference to the author (rightholder). Classic examples of “fair use” are quotations in the media, the use of parts of works for scientific purposes, and so on.
Streaming, in my opinion, can refer to fair use. When it comes to streaming the game with recommendations on the runthrough of a particular part, sharing experiences on the results achieved and without any commercial purpose in the form of advertising third-party applications, websites and products. A recognizable streamer’s style of play would not be out of place.
The streaming process. Image source
For commercial streams and game reviews where ads are shown, donations are accepted – I recommend getting permission from the copyright holder.
In this case, it is a public use of a copyrighted work for a commercial purpose which is not covered by the conception of fair use.. In addition, many licensing agreements with the terms and conditions hereof we agree to by ticking a box explicitly prohibit the public commercial use of the product without the consent of the copyright holder.
Permission for commercial streaming, video review may be in the form of a license agreement between the rightholder and the streamer. Or, for example, by adding a YouTube channel or video to the list allowed by the rightholder.
Of course, the rightholders themselves are aware of streams and video reviews and do not always prevent this. After all, in many cases, this has a positive effect on sales, awareness and interest in games. In questionable matter, you can build a defense to the contrary: the owner of the game receives a commercial benefit and can not demand the removal of the stream, video review without good reason. After all, each side remains “win-win” in the end.
Unless, of course, it’s a spoiler or “cheat” programs that can negatively impact sales. This is a straightforward way to face the rightholder in court. For example, in 2018, Epic Games sued upon two Fortnite streamers who promoted Fortnite cheat programs.
The good news for rightholders is that in most cases infringements can be promptly removed. I often use a pre-trial dispute resolution procedure, when the content is removed either by the streamer itself, or online services after contacting them on behalf of the copyright holder.
In addition, streaming services have the ability to initiate the DMCA procedure. The essence of the procedure is the service’s obligation to block controversial content at the request of the copyright holder.
Each case of copyright use, for example, part of a program, code, or image, should be considered individually, because “the devil is in the details”.
In streaming and video reviews, it’s worth paying attention to the purpose and type of use. And if the process involves advertising, donations and other commercial aspects, it is better to get permission from the rightholder in the form of a license. The agreement can be signed in electronic format and provides for the manner and type of use, term, payment and other important terms. Failure to do so may infringe a copyright of the rightholders and the terms of the product use.
Do you agree with Hutchinson’s statement? Does the streamer have to pay royalties to the developer?