Player Avatars and Proprietary Rights in E-Sports

The e-sports landscape

E-sports tournaments employ a variety of commercial game titles; tournament games span a range of formats and organisational conventions, including both single and team play. Some games depict or mimic physical sports activities, like the FIFA football (soccer) game. This title depicts team football, including the rules used in international professional football, and the display resembles the broadcast of a virtual international football 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.

Other games, particularly those in the first-person shooter (FPS) genre, typified by the game Counter-Strike, are oriented toward action or combat activity. 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. 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.

Who owns the copyright in an e-sports performance?

There have been animated debates on who owns the copyright to e-sports performances. Most legal scholars, however, opine that whatever the intellectual property status of player characters and performances might otherwise be, the question is most often rendered moot by a game’s terms of service. Computer games, including online games, are typically fitted with some type of adhesion contract that purports to allocate to the game publisher any copyright or similar rights accruing to the player.

Nonetheless, scholars agree that this is largely a moot point, simply because there is usually not enough at stake for anyone to seriously challenge it. Players are often emotionally and perhaps even legally attached to their online depictions, but that attachment is seldom monetised, and the cost of clarifying the rights to the average person’s avatar is likely too high to make the venture worthwhile. The landscape changes when the performance has demonstrable worth because the human behind the avatar is a professional player who attracts the attention of fans, advertisers and sponsors, and generates revenue for his team and his league by means of his performances.

What does copyright law actually say?

The first question that agitates the mind when mulling copyright considerations for video games is what type of work is generated during e-sports play, and how the copyright statute distributes the rights in that particular kind of work. We take the view that the logical place to look for an answer is in copyright cases dealing with video games. Unfortunately, extant video game cases concerning player authorship are generally not helpful on the question.

For example, in Stern Electronics, Inc. v. Kaufman, the Second Circuit considered the question of player contribution in the context of an infringement suit regarding an arcade-type video game. The defendant, who produced an allegedly infringing game, challenged the plaintiff’s copyright on the grounds that players were in fact the authors of the game’s video output. The court, however, reasoned that the players generated only a variation on the plaintiff’s game, and declined to consider what degree of player control would be necessary before the game producer would not have contributed enough to the output to be considered an author. Subsequent courts facing the same issue adopted a similar stance, emphasising the limited number of choices available to the player.

A more recent decision, dealing with a desktop game, may point in a different direction, although the reasoning is also somewhat suspect. The dispute in Micro Star v. FormGen, Inc. arose out of authorised additions to a computer game. FormGen, the publisher of the PC game Duke Nukem 3D, made available to its players the tools to develop alternate game levels that would provide a more challenging experience beyond those distributed with the game. FormGen encouraged players to share such “MAP” files via a forum on the company’s website. The instructions in the MAP files would “call up” and sequence, arrange and display the electronic source art library images provided with the game. The MAP files thus operated together with other components of the Duke Nukem game, but could not themselves independently generate game output.

The alleged infringer, Micro Star, compiled collections of the user-created MAP files from the website, and marketed them on compact discs without the authorisation of either the players who created the files or the game publisher, FormGen. FormGen argued that the MAP files constituted authorised derivative works that contained expression from their game, giving it standing to sue for infringement. Micro Star asserted that the files incorporated no protected expression from the game, because they did not entail a concrete or permanent alteration to FormGen’s original expression, but only instructions for arranging material from the game library.

In a well-considered ruling by Judge Kozinski, the Ninth Circuit rejected Micro Star’s defence, reasoning that the alternate game levels constituted a type of “narrative” regarding the Duke Nukem character and his story. Because the MAP files dictated the placement and sequence of the game’s graphics, the court held that they in effect comprised the plot of a new story about Duke Nukem. In other words, by describing the placement and sequence of game graphics, the MAP files were derivative works incorporating protected expression from the game. Essentially, the opinion held that a description of a derivative work is equivalent to a derivative work — sequencing and arrangement of the game elements via computer coding was recognised as a derivative work, even if sequencing and arranging the game elements via a joystick or game controller was not.

Where this leaves avatar authorship

We take the view that despite the somewhat contradictory decisions in these cases, the question of avatar authorship is probably best characterised as one of adaptation or derivative work. Game publishers could be characterised as granting express or implied permission for players to alter or adapt their audiovisual work, resulting in a derivative work of the game as it would be executed without player manipulation.

The regulatory landscape for e-sports in Nigeria is largely non-existent, even as the commercialisation of e-sports in the country remains a novel concept. Accordingly, disputes on sophisticated issues such as copyright ownership would only arise when the commercialisation potential of e-sports is realised in Nigeria. We therefore reckon that, in the absence of a robust regulatory framework, these decisions, albeit persuasive, would form the basis for resolving copyright issues in e-sports in future.