In the dynamic world of esports, professional and amateur players frequently encounter IP issues that can significantly impact their activities. As will be further developed below, the most common IP issues players should be aware of in the context of esports are, among others:
Content ownership and licensing
Monetization and revenue sharing
Fan art and game modifications
Unauthorized use of copyrighted material
Trademark infringement
There are several reasons why players should care about IP. First and foremost, understanding IP will help you protect your own creations and avoid legal pitfalls. By understanding your rights and the rights of others, you can ensure that your content is legally compliant and protected from unauthorized use allowing you to better plan your career as a player.
IP awareness also demonstrates professionalism and respect for the work of others in the sector. As a player, respecting IP rights fosters a positive community environment and encourages collaboration and innovation. It shows that you value the contributions of game developers, artists and other content creators, which can enhance your reputation within the esports community.
Properly managing IP can open up revenue opportunities through licensing, sponsorships and partnerships. By understanding and respecting IP rights, you can create content that is attractive to potential sponsors and partners, leading to increased monetization opportunities. Brands and sponsors do not want to associate themselves with infringing activities, even if done so indirectly. This includes, for example, people and companies they could be associated with, such as an esport team or an event sponsored by a specific brand. Additionally, being knowledgeable about IP issues can help you negotiate better terms and agreements, ensuring that you receive fair compensation for your work.
As described above, intellectual property (IP) rights are an essential element of the video games and esports industry. By understanding the common IP challenges and the importance of IP awareness, players can better navigate the legal landscape and protect their own creations. This introductory insight sets the stage for more detailed guidance on addressing specific IP challenges, as described below.
Generating and authorizing the use of content
The first step to protecting your creations and respecting the rights of others is to understand who owns the rights to the content you want to use or incorporate in your creation. When you use an online service such as a video streaming platform or even subscribe to online services of a video game, you enter into a contractual relationship with the owner of the platform, video game or service. The contract is detailed in the terms of use, sometimes referred to as End User License Agreement or EULA available in the platform. There it will not only describe what you can or can’t do but also what happens to yours, third parties' and the service provider’s IP.
Platforms like Twitch and YouTube, or video games like Fortnite, have specific terms of service that outline content ownership and licensing while also having a system for third-parties to claim infringements. Generally, while you retain ownership of your original content generated while using the platform, you grant a license to use, distribute and monetize it.
To protect your rights, it is important to review and understand the platform's terms and conditions, as well as whether you can exploit your content on other platforms. This might lead you to decide to use one particular platform, or even many at the same time as, generally speaking, the more platforms you use to distribute your content, the more revenue opportunities might appear.
If you are collaborating with other creators, make sure you have clear agreements in place that explicitly address content ownership and revenue sharing. The more detailed and specific the clauses in these agreements, the less likely it is that a dispute will arise over rights ownership and revenue sharing. You can use as a guide the elements commonly found in an IP agreement, which are described below in the guidelines.
If you are generating content that you believe is relevant for your career strategy and contains distinctive signs that could differentiate your product from similar ones in the market, such as catchphrases, personalized emblems or images or a player’s nickname, think about protecting those elements through trademarks or registering them as copyrighted works.
Monetization and partnerships
While it is always tempting to monetize your content through advertising, subscriptions, or sponsorship, this can raise IP issues, especially if copyrighted material is used in the creation of that content. To avoid potential legal complications, including receiving a takedown notice on your social media account or lose monetization in platforms, ensure that any copyrighted material you use is properly licensed or originally created (by you or that you own the rights), or that you are following the terms of use. You should also understand the revenue sharing agreements and licensing terms of the platforms you use. Sometimes they use language or formulas that are difficult to understand, but you can consult a professional (e.g., lawyers, agents, etc.) to better understand the return you can get from your talent and work.
In-game creations (fan art and mods)
Creating fan art or game modifications (mods) is a popular activity among players, but it can be a gray area in terms of IP. Some game developers encourage fan creativity and usually provide guidelines for creating and sharing fan art and mods. However, others are opposed to modifications not controlled by the developer. Since the video game IP rights are owned by the developer and/or publisher, they can oppose any modifications that they don’t authorize as an infringement of their IP rights and the terms of service. To avoid legal disputes over fan art and mods, always check the developer's policy or the game’s terms of use on these matters. And equally important, be aware of clauses that impact your ownership over fan art and mods. If in doubt, ask the rightsholder (either the developer or the publisher) for permission before creating or sharing your work.
Using content
This is one of the most important and common IP issues in the esports sector. Players often use a large amount of content, such as footage, music and images, in their streams or videos from their favorite video games in various ways. In order to avoid copyright infringement claims or loss of monetization in relation to the use of this type of content, only content that gamers are authorized to use should be considered. This includes content that gamers obtained through licensing agreements, either directly or via EULAs. Failure to obtain such permissions may result in legal or financial penalties for copyright infringement. Another alternative, whenever possible, is that gamers create their own content, such as background music or images, and therefore are the owners of that content.
Many video game companies provide publicly available guidelines or specific licenses for content creators, so we always recommend that players check the official website or contact the developer or the publisher for more information. Finally, you should seek legal advice to better understand conditions that might apply to your content, such as those associated with the use of AI services, free and open-source licenses, using real people or brands, or assuming that the laws of one country apply elsewhere.
Brands, logos and trademark misuse
Trademark infringement occurs when someone uses names, logos or other identifiers that are protected by trademark law without the permission of the trademark owner. In esports, this includes the names and logos of games, teams and sponsors. To avoid this type of infringement, it is recommended that you obtain permission before using any trademarked material. Again, this can be done by contacting the trademark owner directly or by reviewing the trademark guidelines that many platforms and video game publishers have to understand under what the circumstances use is allowed by the right owner. In some cases, the trademark laws of some countries may permit the descriptive or informative use of a third party's trademark without the need to obtain permission. Even in this case, negative comments about a product or service identified by the trademark or its use in circumstances that could affect the reputation of the product, service or producer/provider could generate legal standing from right owners against unauthorized uses. Before using trademarks, check the circumstances in which you are using them and the rules in your country and adapt accordingly. The context in which you use trademarks is extremely important, as even well-intentioned use can lead to legal problems.