In December 2020, some of the most popular games on Twitch were ranked among the top ten most-watched games on the platform. These games include Fortnite, League of Legends, Minecraft, World of Warcraft. The video game industry generates annual revenues of billions of dollars. In 2018, it projected that the industry would generate $137.9 billion in revenues.

In today’s gaming world, becoming a successful streamer is a goal many gamers have. With Twitch, they can easily create their own live streams and interact with other gamers. However, when the stream uploads and the fun is done, is there a copyright infringement suit just waiting to happen?

The copyright protection of original works of authorship exists in any tangible medium of expression. This includes movies, television shows, and audio and video games. Under the copyright act law, the owner of these rights has six exclusive rights that they may use or authorize others to do so. This list includes the rights to reproduce, prepare derivative works, and distribute copies of copyrighted work to the public, etc. Under copyright law, game developers legally own exclusive rights to use and publish images and videos from their games in a fixed form. The issue is not with streaming videogames though, as this is likely not the case for most gamers, as it is instead the moment when a user uploads their recorded streams.

Today’s streamers are not required to get approval from game developers and publishers for their gameplay to be recorded and uploaded online on Twitch. Copyright-protected gameplay is uploaded and recorded for free on various platforms, such as YouTube and Twitch. While many of these platforms have strict community guidelines and safe harbors, they still more or less allow and perpetuate an environment of infringement; enough game publishers and developers just have not enforced their copyrighted works. Thus, while there is no set precedent for how copyright holders would enforce their exclusive rights in the realm of video game streaming and upload, users should be informed of the law and possible legal implications when a copyright owner chooses to enforce their exclusive rights.

Applicable law
17 U.S.C. §106 awards video game developers and publishers have the right to authorize, limit, and control who can reproduce, publicly distribute, and/or perform a sound recording for their copyrighted work. This means that they can easily file takedown notices for infringing material and refuse to allow streamers to stream their game. However, popular social media platforms typically find protection under the DMCA. The DMCA is a law that was enacted in the U.S. It provided various protections for online platforms in many ways:

1. Established protections for online service providers in various situations if their users engaged in copyright infringement.
2. Supported copyright owners in offering greater access to their works in digital formats by providing legal protection against unauthorized access to their works.
3. Banned providing false copyright management information or removing or altering that type of information in certain circumstances.

The terms of the DMCA 512 protect online platforms from liability for infringement unless they implement a notice-and-takedown system. This means that if a user posts copyrighted content that they found offensive, they will not be held liable if they happen to be a Twitch streamer. Twitch will not be held liable if a streamer posts any content, even if infringing content, that is protected under the DMCA’s safe harbor. The platform must remove or block access to infringing materials after being alerted. As long as the platform is not engaging in any illegal activities and is not enabling end-users to violate, it will likely be protected under this safe harbor.

Nintendo has been on a crusade to protect its trademark holders, and it culminated in the removal of over 350 games from Game Jolt. These games were made by fans of the Nintendo video game characters and music. Nintendo’s DMCA notices elaborate that these games infringed on trademarks owned by Nintendo, such as images of Nintendo’s video game characters, audio tracks, and other features of their video games. In addition, Nintendo legal team also forced a popular TikTok user to stop broadcasting and rebrand her game as “Pokeprincxs” in order to resolve their infringement on the Pokémon franchise via merchandise based around her branding and her username. Although Nintendo has been doing this for a long time, it is possible for more developers to do the same. While these types of claims are often legitimate, they are also susceptible to DCMA’s copyright infringement lawsuits if the owner of the work chooses to pursue this route.

What copyright laws are flagged in video game streaming?
In the current environment, it is clear that platforms like Twitch enforce rules around content that are not allowed by their users. This includes copyright and channel content. Within the site Learn the Basics page, Twitch elaborates on how to ask for a takedown notification. There, it also explains how to properly treat creator content.
While they do not require proof of consent to posting content, their platform states that the rights that are required to secure copyrighted material may vary depending on the rights needed for the same material in your recorded content. This is followed by a suggestion to read Twitch’s DMCA Guidelines, Community Guidelines, Music Guidelines, and Terms of Service. Both YouTube and TikTok have rules and policies that are very similar. As long as Twitch is not engaging in any infringement conduct and is not enabling end-users to do so, they are likely protected under the DMCA safe harbors.

Even though these platforms are protected from legal liability, users are not granted the right to upload copyrighted content and hence, are not protected. Without a license, streamers can’t stream copyrighted video games. Current copyright law clearly states that anyone who uploads a recording of their gameplay is subject to legal action by the game’s publisher and developers.

Some people in the gaming community believe that allowing streamers to upload copyrighted content on Twitch is an incentive to allow their games to grow in popularity at rates much higher than normal advertising. The question is: will this always be the case?

So, what’s the plan?
The relationship between video game copyright owners and streamers seems to be a happy one. The Copyright Act clearly states that platforms have a duty to their users and the owners of copyrighted works to take down infringing content. However, as society becomes more digital, should their responsibilities become easier to fulfill when it comes to the DMCA safe harbors? Currently, platforms do not have a duty to remove copyrighted content unless the holders give them proper notice.

 

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