Let’s Play: A Walkthrough of Quarter-Century-Old Copyright Precedent as Applied to Modern Video Games

Fordham Intellectual Property, Media and Entertainment Law Fordham Intellectual Property, Media and Entertainment Law

Journal Journal

Volume 28

XXVIII

Number 2

Article 4

2018

Let’s Play: A Walkthrough of Quarter-Century-Old Copyright Let’s Play: A Walkthrough of Quarter-Century-Old Copyright

Precedent as Applied to Modern Video Games Precedent as Applied to Modern Video Games

Kyle Coogan

Duke University School of Law

, [email protected]

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Recommended Citation Recommended Citation

Kyle Coogan,

Let’s Play: A Walkthrough of Quarter-Century-Old Copyright Precedent as Applied to Modern

Video Games

, 28 Fordham Intell. Prop. Media & Ent. L.J. 381 (2018).

Available at: https://ir.lawnet.fordham.edu/iplj/vol28/iss2/4

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Let’s Play: A Walkthrough of Quarter-Century-Old Copyright Precedent as Applied Let’s Play: A Walkthrough of Quarter-Century-Old Copyright Precedent as Applied

to Modern Video Games to Modern Video Games

Cover Page Footnote Cover Page Footnote

J.D., Duke University School of Law, 2017; M.S., Electrical & Computer Engineering, Georgia Institute of

Technology, 2014; B.S., Electrical Engineering, Georgia Institute of Technology, 2012.

This article is available in Fordham Intellectual Property, Media and Entertainment Law Journal:

https://ir.lawnet.fordham.edu/iplj/vol28/iss2/4

381

Let’s Play: A Walkthrough of Quarter-

Century-Old Copyright Precedent as

Applied to Modern Video Games

Kyle Coogan*

Looking to the copyright protection over the audiovisual

displays of video games, current precedent—created by extensive

litigation in the 1980s over early arcade games—may be a round

hole into which the square peg of today’s highly complex video

games would have difficulty fitting. This is an issue that has

increasing importance as the market for the passive consumption

of video game audiovisual displays through tournament streams,

walk-throughs, etc., continues to balloon. If courts were to apply

precedent from litigation in the 1980s to video games as they exist

today, the idea that copyright protection automatically attaches to

any and all audiovisual displays generated by a game may not

hold true. It is uncertain to what extent the reasoning in early

arcade game litigation regarding the issues of authorship, the

idea/expression dichotomy, and fixation would yield similar

holdings. Moreover, it appears similarly uncertain to what extent a

retreat from earlier precedent may impact publishers’ rights in

downstream uses of audiovisual displays. Even if potential

defendants prevailed under either an idea/expression dichotomy

theory or a fixation theory—meaning the copyright does not attach

to audiovisuals at the outset—later-fixed audiovisuals may still be

protectable. The strongest argument potential defendants have,

therefore, is that their interaction with the game precludes

copyrightability for the audiovisual displays due to a lack of

“original authorship” on the part of the publishers.

J.D., Duke University School of Law, 2017; M.S., Electrical & Computer

Engineering, Georgia Institute of Technology, 2014; B.S., Electrical Engineering,

Georgia Institute of Technology, 2012.

382 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXVII:381

INTRODUCTION .............................................................................. 383

I. BACKGROUND ............................................................... 384

A. Legal History ........................................................... 384

B. Current Downstream Control ................................. 386

C. Genres of Video Games ........................................... 388

D. Tournament Play and the Passive Consumption

of Video Games ....................................................... 390

E. The Potential for Litigation ..................................... 393

II. VIDEO GAMES’ AUDIOVISUAL DISPLAYS REVISITED .... 396

A. Fair Use and EULAs ............................................... 397

B. Authorship and Originality ..................................... 400

C. Games as Systems ................................................... 405

D. Fixation ................................................................... 410

III. POTENTIAL CONSEQUENCES.......................................... 414

A. Copyright Registration ............................................ 414

B. Derivative Works ..................................................... 415

IV. POLICY CONSIDERATIONS ............................................. 417

CONCLUSION .................................................................................. 418

2018] LET'S PLAY 383

INTRODUCTION

The application of copyright to software often reflects an

attempt to “fit the proverbial square peg in a round hole.”

This

observation holds true for the subset of software comprised of

video games. The dual literal and nonliteral copyright protection

that video games enjoy—for both the computer code and the

audiovisual displays—invites discussion on two fronts over what

elements are copyrightable. Looking only to the copyright in the

audiovisual displays, current precedent—created by extensive

litigation in the 1980s over early arcade games—may be a round

hole into which the square peg of today’s highly complex video

games would have difficulty fitting. This is an issue that has

increasing importance as the market for the passive consumption

of video game audiovisual displays

through tournament streams,

walk-throughs, etc. continues to balloon—increasing beyond the

over four billion dollar current market estimate.

It is uncertain to

what extent the reasoning in the early arcade game litigation

regarding the issues of authorship, the idea/expression dichotomy,

and fixation would yield similar holdings when applied to the

complexities of present-day games. Moreover, it appears similarly

uncertain to what extent a retreat from earlier precedent may

impact publishers’ rights in these downstream uses of the video

game audiovisual displays.

Comput. Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 712 (2d Cir. 1992).

Audiovisual displays refer to the combination of sights and sounds as produced by

the video game software during an instance of gameplay. These displays are increasingly

consumed as a passive medium. That is, video game fans passively view either live or

recorded audiovisuals produced by others who are playing the game, much in the same

way that traditional sports fans passively view sporting events without participation. This

is distinct from the traditional consumption of the video game medium, which takes place

interactively, as video game fans play the game themselves, thereby perceiving the

audiovisuals of their own gameplay in real time. See infra notes 48–50.

See infra text accompanying notes 50–53.

384 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXVII:381

I. BACKGROUND

A. Legal History

U.S. copyright law is governed by the 1976 Copyright Act, as

codified in title 17 of the U.S. Code.

Section 102(a) defines

copyrightable subject matter as “original works of authorship” that

are “fixed in any tangible medium of expression.”

This definition

is limited by section 102(b), which delineates the idea/expression

dichotomy

by stating that copyright shall not cover “any idea,

procedure, process, system,” etc.

That is, copyright extends to the

original expression of ideas, not the ideas themselves.

For works

eligible for copyright under section 102, section 106 outlines the

rights conferred to an owner of a valid copyright.

This section

provides that:

[T]he owner of [a] copyright . . . has the exclusive

rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work; . . . (2) to

prepare derivative works; . . . (3) to distribute

copies . . . to the public by sale, . . . or by rental,

[etc.]; . . . (4) to perform the . . . work publicly; . . .

(5) to display the . . . work publicly; and (6) in the

case of sound recordings, to perform the . . . work

publicly by means of a digital audio transmission.

These rights are subject to some limitations—most notably the

“fair use” limitations outlined in section 107.

This section

provides that “[n]otwithstanding the provisions of sections 106 and

106A, the fair use of a copyrighted work . . . is not an infringement

See id. § 102(a).

This phrase refers to the distinction between copyrightable subject matter—the

expression created by the author—and uncopyrightable subject matter—the mere

underlying idea that is being expressed. See infra note 8.

17 U.S.C. § 102(b).

See id.; see also Mazer v. Stein, 347 U.S. 201, 217 (1954) (“Unlike a patent, a

expression of the idea—not the idea itself.”).

See 17 U.S.C. § 106.

Id.

Id. § 107.

2018] LET'S PLAY 385

of copyright.”

Section 107 further provides four factors that

“shall” be considered when conducting a fair use analysis: “(1) the

purpose and character of the use; . . . (2) the nature of the

copyrighted work; (3) the amount and substantiality of the portion

used . . . ; and (4) the effect of the use upon the potential market

for or value of the copyrighted work.”

Therefore, even when a

valid copyright is found to exist, in certain circumstances uses of

the copyrighted material may not amount to an infringement of that

as the ways in which these rights are circumscribed by the fair use

factors of section 107, the application of copyright law to new and

changing technologies raises interesting and challenging

questions—especially in the case of video games.

Video games have existed since at least the early 1950s, a

product of early computer science research.

It was not until their

introduction into mainstream society a couple of decades later,

however, that they would spawn extensive litigation over their

copyrightability. Early cases focused on various aspects of

fixation,

and the idea/expression dichotomy (i.e., games as

systems).

Two general premises were left once the dust on these

Id.

Id. For further discussion on the specific elements of qualifying uses, see infra

Section II.A.

Chris Bateman, Meet Bertie the Brain, the World’s First Arcade Game, Built in

Toronto, S

PACING TORONTO (Aug. 13, 2014), http://spacing.ca/toronto/2014/08/13/meet-

bertie-brain-worlds-first-arcade-game-built-toronto/ [https://perma.cc/NG2D-YFMC].

Section 102 of the Copyright Act provides that copyrights extend to “original works

of authorship.” 17 U.S.C. § 102(a). Therefore, some have attempted to argue that, due to

the player participation, video games are not sufficiently “original works of authorship,”

and would thereby not be eligible for copyright protection. See infra Section II.B.

Similarly, section 102 further provides that, to be eligible for copyright protection,

such an original work of authorship, must be “fixed in a[] tangible medium of

expression.” 17 U.S.C. § 102(a). Therefore, other arguments regarding the

copyrightability of video games have focused on whether or not they are sufficiently

fixed. See infra Section II.D.

Even where an original work of authorship is found to be sufficiently fixed in a

tangible medium of expression, in no case shall a copyright protect “any idea, procedure,

process, or system.” 17 U.S.C. § 102(b). Rather, a copyright will only extend to the

386 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXVII:381

many cases finally settled. First, video games receive two different

types of copyright protection—both as a literary work for the

underlying computer code, and as an audiovisual work for the

audiovisual content generated by this computer code.

Second, the

and sounds capable of being produced by the game.

B. Current Downstream Control

The combination of these two premises—that video games

receive protection both as literary works in the underlying code, as

well as audiovisual works extending to any conceivable

audiovisual output produced by that underlying code—enables

publishers to exert a large amount of control

over emerging

secondary markets

for video games. This control stems primarily

from the public performance rights for audiovisual works listed in

section 106(4),

which was recently confirmed to encompass

creative expression of such ideas, procedures, processes, or systems. See infra

Section II.C.

See, e.g., M. Kramer Mfg. Co. v. Andrews, 783 F.2d 421, 442 (4th Cir. 1986)

(holding that “a copyright in the audiovisual display, which display is created by a

computer program, protects not only the audiovisual from copying, but also the

underlying computer program to the extent the program embodies the game’s

expression”); Stern Elecs., Inc. v. Kaufman, 669 F.2d 852, 856 (2d Cir. 1982) (holding

that the video game at issue received protection both for the “written work” as well as the

audiovisual output of the game); see also John M. Neclerio & Matthew C. Mousley,

OMPUTER GAMES

AND

VIRTUAL WORLDS: A NEW FRONTIER IN INTELLECTUAL PROPERTY LAW 47, 50 (Ross

A. Dannenberg et al. eds., 1st ed. 2010).

See Midway Mfg. Co. v. Artic Int’l, Inc., 704 F.2d 1009, 1011 (7th Cir. 1983), cert

denied, 464 U.S. 823 (1983) (construing the phrase “series of related images” in

17 U.S.C. § 101 (2012) to “any set of images displayed as some kind of unit”); see also

U.S. C

OPYRIGHT OFFICE, COPYRIGHT REGISTRATION OF COMPUTER PROGRAMS 5 (2017)

(“A registration for a computer program covers the copyrightable expression in the

program code and any copyrightable screen displays it generates,” regardless of whether

identifying material for the screens is deposited.).

For an in-depth discussion of publisher control on downstream markets, see

generally Jochen Harttung, The Issue of “Deep Control” in Professional E-Sports – A

Critical Analysis of Intellectual Property Structures in Electronic Gaming (Nov. 2015)

(unpublished L.L.M. thesis, University of Toronto) (on file with the University of

Toronto’s TSpace research repository).

See discussion infra Section I.D.

See, e.g., Red Baron-Franklin Park, Inc. v. Taito Corp., 883 F.2d 275, 279 (4th Cir.

1989) (“We therefore conclude that the operation of a video game constitutes a

2018] LET'S PLAY 387

many types of internet streaming, regardless of the technology

employed to deliver the performance.

This means publishers will

have control over many of the consumptive uses of their games

through the internet via streaming, which are distinct from the

interactive use that is gameplay.

The extent of this control may

somewhat contrast with the relatively more limited amount of

downstream control available to rights holders in areas of gaming

that take place outside the virtual world—such as board games

and athletic performances.

Whether or not this contrast exists,

countervailing policy concerns may not necessarily disfavor rights

holders’ control in these consumptive, downstream uses of the

audiovisual aspect of video games as they sometimes have in the

cases of: (1) uses of audiovisual portions of more utilitarian

performance as that term is defined in [17 U.S.C.] § 101.”). As mentioned, the rights

conferred by section 106 of the Copyright Act include, in the case of audiovisual

displays, the right “to perform the copyrighted work publicly.” 17 U.S.C. § 106(4);

see also supra text accompanying notes 9–10. This right is central to the video game

audiovisual displays exists, the playing of the game in front of an audience directly

violates the public performance rights of the copyright holder. See Red Baron-Franklin

Park, Inc., 883 F.2d at 279.

See, e.g., Am. Broad. Cos. v. Aereo, Inc., 134 S. Ct. 2498, 2506 (2014); see also

17 U.S.C. § 101. The Transmit Clause defines the exclusive public performance right as

including the right “to transmit or otherwise communicate a performance . . . to the

public . . . whether the members of the public capable of receiving the performance . . .

receive it in the same place or in separate places and at the same time or

at different times.” Id.

See, e.g., About the Nintendo Creators Program, NINTENDO,

https://r.ncp.nintendo.net/guide/ [https://perma.cc/U9MX-J5KP] (last visited Mar. 3,

2017) (requiring content creators to be licensed by Nintendo before uploading content

related to gameplay of Nintendo video games).

See Allen v. Acad. Games League of Am., Inc., 89 F.3d 614, 616 (9th Cir. 1996)

(holding that tournament play of a copyrighted board game does not constitute a

“performance” under 17 U.S.C. §§ 101, 106(4), and noting that the Ninth Circuit “will

not place such an undue restraint on consumers” by holding otherwise). For further

discussion, see infra Section II.C.

See, e.g., Nat’l Basketball Ass’n v. Motorola, Inc., 105 F.3d 841, 853 (2d Cir. 1997)

(allowing Motorola to capitalize on the secondary market for real-time game statistics).

But see Balt. Orioles, Inc. v. Major League Baseball Players Ass’n, 805 F.2d 663, 674–75

(7th Cir. 1986) (holding that player performances fell within copyrightable subject matter

and were therefore works made for hire, thereby preempting the players’ state law rights

of publicity claims that might have enabled the players to share in and have some control

over the telecast rebroadcast rights).

388 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXVII:381

software;

or (2) uses of literary portions (i.e., the code) of video

game software.

C. Genres of Video Games

Regardless of any policy arguments regarding the control of

these downstream markets for video games, it is important to

comprehend the current video game landscape to better understand

how each genre fits within the broader copyright discussion. Along

with the rest of semiconductor and computer-related technology,

video games have progressed quite a long way from the arcade

games at issue in much of the litigation of the 1980s.

This has led

to increased complexity among the wide range of broad video

game genres that differ in their style of gameplay. The genres that

will be specifically discussed due to the varying ways in which

(“ARPGs”), massively multiplayer online role-playing games

See Lotus Dev. Corp. v. Borland Int’l, Inc., 49 F.3d 807, 820–22 (1st Cir. 1995)

(Boudin, J., concurring) (noting that, because Borland copied the menu for the purpose of

compatibility and avoiding lock-in effects, its use should be permitted), aff’d by an

equally divided court, 516 U.S. 233 (1996). Lock-in effects refer to the concept that,

where one becomes accustomed to a certain procedure or idea, if a monopoly were

granted over that procedure or idea, then the users would be “locked in” to using the

product produced by whomever had that monopoly. See id. at 821. The example provided

by Judge Boudin in Lotus is that of the QWERTY keyboard, whereby those who have

learned to type on the QWERTY scheme would be “captive of anyone who had a

monopoly on the production of such a keyboard,” despite that the QWERTY scheme is

really “nothing other than a menu of letters.” Id. at 820–21.

See Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1514 (9th Cir. 1992)

(holding that, “based on the public policies underlying the statute,” reverse engineering to

create competing games playable on Sega consoles was a fair use, despite it obviating the

need to pay licensing fees to Sega). For more discussion regarding these policy

considerations, see infra Part IV.

Compare Midway Mfg. Co. v. Artic Int’l, Inc., 704 F.2d 1009, 1012 (7th Cir. 1983),

cert. denied, 464 U.S. 823 (1983) (“[The player of a video game] cannot create any

sequence he wants out of the images stored on the game’s circuit boards. The most he can

do is choose one of the limited number of sequences the game allows him to choose.”

(emphasis added)), with Rift, O

CULUS, https://www.oculus.com/rift/ [https://perma.cc/

23CV-JX5D] (last visited Mar. 3, 2017) (describing a virtual reality gaming product that

allows users to interact fully with their virtual environments).

2018] LET'S PLAY 389

(“MMORPGs”), real-time strategy games (“RTSs”), digital

collectible card games (“CCGs”), and sandbox games.

ARPGs are single-player games that involve a player traversing

a usually elaborate plot line, existing within a large “open world”

universe. However, the crux of the gameplay centers on interacting

with the environment and various characters along one or a few

storylines within the game. Examples of ARPGs include The Elder

Scrolls V: Skyrim

and Fallout 4,

both created by Bethesda

Game Studios.

MMORPGs are similar to ARPGs in that they both have an

open universe style. They differ drastically, however, by

eschewing the more defined plot line, with the gameplay centering

on an open universe style and the existence of other real-life

players. The interactions between players in the virtual world are

elaborate and lead to the creation of virtual economies.

example includes Blizzard Entertainment’s World of Warcraft.

RTSs are another form of gaming, but each virtual world

consists of a battle arena and usually includes fewer players than

MMORPGs, typically numbering in the single- or low double-

Some may take slight issue with the characterizations of these genres in this Article.

For example, RTSs, as described later in this section, may be interpreted as being more

accurately labeled by the RTS sub-genre of “multiplayer online battle arena” games

(“MOBAs”). However, the broader separation of genres set forth (e.g., RTSs/MOBAs as

distinct from ARPGs) is what is important for this Article.

“Open world” is a term for video games where players can move freely throughout a

virtual world and are given extensive freedom regarding how and when to approach

particular objectives, as opposed to other video games that have a more linear structure to

their gameplay. See, e.g., Jake Muncy, Open-World Games Are Changing the Way We

Play, WIRED (Dec. 3, 2015), https://www.wired.com/2015/12/open-world-games-2015/

[https://perma.cc/4EXA-3PWJ] (“Open-world games leave players to their own devices,

free to explore what amounts to an enormous sandbox with no boundaries

and few rules.”).

The Elder Scrolls V: Skyrim, BETHESDA.NET, http://www.elderscrolls.

bethesda.net/skyrim/ [https://perma.cc/GX8N-WVWP] (last visited Mar. 3, 2017).

FALLOUT 4, https://www.fallout4.com/ [https://perma.cc/NL2K-UACG] (last visited

Mar. 3, 2017).

See generally Edward Castranova, Virtual Worlds: A First-Hand Account of Market

and Society on the Cyberian Frontier (Ctr. for Econ. Studies & Ifo Inst. for Econ.

Research, CESifo Working Paper No. 618, 2001).

WORLD OF WARCRAFT, https://worldofwarcraft.com/en-us/ [https://perma.cc/RQC6-

H746] (last visited Mar. 3, 2017).

390 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXVII:381

digits. Teams compete to strategically outmaneuver each other and

destroy the other’s virtual assets. Examples are Blizzard’s Starcraft

and Riot Games’ League of Legends (“LoL”).

Digital CCGs relate to RTSs in that they involve a smaller

number of players: matches typically involve turn-based play and

only two players competing against each other. Further, CCGs

closely mimic the feel of traditional tabletop games with added

audiovisual components. Examples include Blizzard’s

Hearthstone

and Mojang’s Scrolls.

Lastly, and in stark contrast to the more confined nature of the

tabletop, card-game-like feel of digital CCGs, sandbox games are

games in which users can traverse a large, open universe and

interact with nearly every aspect of their surroundings. These have

minimal limitations on what the player’s character can do,

allowing the player to not only explore the open world, but to

change it as well.

One popular example is Majong’s Minecraft,

in which players have exceptional latitude to interact with the

virtual world and build entire worlds out of blocks.

D. Tournament Play and the Passive Consumption of

Video Games

Similar to the progress in video gaming itself—which led to the

complexities of games in these genres—many developments in

computing technology have also led to significant changes in the

way video games are consumed. Most significantly, the pervasive

nature of the internet and increasingly large bandwidth capabilities

have led to significant consumption of video games via online

Starcraft II, BLIZZARD ENT., http://us.battle.net/sc2/en/ [https://perma.cc/J5XS-

MLU4] (last visited Mar. 3, 2017).

LEAGUE OF LEGENDS, http://na.leagueoflegends.com [https://perma.cc/T269-SGRK]

(last visited Mar. 3, 2017).

HearthStone, BLIZZARD ENT., http://us.battle.net/hearthstone/en/ [https://perma.cc/

9J93-MTF2] (last visited Mar. 3, 2017).

SCROLLS, https://scrolls.com [https://perma.cc/WZ26-Q7LS] (last visited

Mar. 3, 2017).

See Sandbox, TECHOPEDIA, https://www.techopedia.com/definition/3952/sandbox-

gaming [https://perma.cc/JCP9-D4J8] (last visited Mar. 3, 2017).

MINECRAFT, https://minecraft.net/ [https://perma.cc/6HFT-6FU5] (last visited

Mar. 3, 2017).

2018] LET'S PLAY 391

streaming platforms.

This takes place in the form of “live

streaming” live gameplay through popular sites such as

Twitch.tv,

as well as traditional streaming of user-generated

content (“video-on-demand”)—such as walk-throughs,

Let’s

Plays,

video game reviews, or other gameplay—all of which are

typically uploaded to sites such as YouTube.

Just as early video

game technologies took passive consumers and turned them into

interactive consumers,

these new streaming technologies have

See, e.g., Sarah Perez, YouTube Gaming Expands to New Markets, Improves Its

Browsing and Viewing Experience on Mobile, T

ECHCRUNCH (Mar. 10, 2016),

http://techcrunch.com/2016/03/10/youtube-gaming-expands-to-new-markets-improves-

its-browsing-and-viewing-experience-on-mobile/ [https://perma.cc/PL6Z-UQ2C].

See, e.g., ClgDoubleLift, TWITCH, https://www.twitch.tv/clgdoublelift

[https://perma.cc/PV5J-MRH4] (last visited Mar. 3, 2017) (providing a channel for a

popular streamer for the game League of Legends).

A walkthrough is an instructional video of how to go through a video game, such as

how to succeed at certain challenging elements, or how to find certain hidden elements

known as “easter eggs.” See, e.g., RabidRetrospectGames, Destiny 2 Curse of Osiris

Gameplay Walkthrough Part [One] Full Game (Full Expansion) – No Commentary,

OUTUBE (Dec. 5, 2017), https://www.youtube.com/watch?v=88fDyRpvl_Q

[https://perma.cc/DJ44-Q9MR]; see also Brandon Guerrie, Complete [One-Hundred

Percent] Guide to a Walkthrough, V

ENTUREBEAT, (May 3, 2010, 5:14 PM)

https://venturebeat.com/community/2010/05/03/complete-100-guide-to-a-walkthrough/

[https://perma.cc/6YDA-YQGQ].

A Let’s Play, or an “LP,” is a video of someone playing a videogame with audio

commentary of the gameplay laid over it, and is edited to focus more on the

entertainment value of the actual gameplay than it is on instructing. See, e.g., David

Finniss, What Is a “Let’s Play?,” Y

AHOO VOICES (Nov. 18, 2009),

https://web.archive.org/web/20140729024203/http://voices.yahoo.com/what-lets-play-

4901264.html [https://perma.cc/4DEL-AXA4].

See, e.g., theRedBrad, Fallout 4 Walkthrough Gameplay Part [One] – The

Apocalypse (PS4), Y

OUTUBE (Nov. 9, 2015), https://www.youtube.com/watch?v=

r9WsqRhbdF4. While Twitch started as mostly a live streaming platform, and YouTube

was originally for video-on-demand, both platforms have branched out and offer

both services.

Greg Lastowska, Copyright Law and Video Games: A Brief History of an Interactive

Medium, in T

HE SAGE HANDBOOK OF INTELLECTUAL PROPERTY 495, 498 (Matthew David

& Debora Halbert eds. 2015) (describing the initial difficulties that the advent of gaming

brought about due to the fact that, instead of passively consuming media—as one does

when they read a book or view a movie—gamers interactively consume the media and, in

doing so, gamers have a part in controlling the game and participating in the experience

ultimately consumed).

392 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXVII:381

ironically shifted some video game consumption back toward a

more passive medium—i.e., simply viewing streams.

Similarly, these new methods of passively consuming video

games have created new markets by which games can be

monetized. For one, there can be significant advertising revenue

for both casual live streams

and video-on-demand of gameplay or

walkthroughs. Second, by enabling live streaming of tournament

play, these technologies have created a growing market for

professional video game playing, called “e-sports.”

E-sports is

seeing explosive growth, reaching nearly $700 million in

expenditures in 2016, a year-on-year growth of over forty

percent.

Combined, the entire streaming market for video

See generally Nathan Edge, Evolution of the Gaming Experience: Live Video

Streaming and the Emergence of a New Web Community, 4 E

LON J. UNDERGRADUATE

RES. COMM. 33 (2013) (discussing the growth of live stream spectatorship

for video gaming).

Referring to popular players who stream gameplay outside of the context

of tournaments.

E-sports refers to the organized, competitive playing of video games, often by

professional gamers. These gamers are professional, insofar as they are either directly

sponsored by certain entities within the gaming industry, or they have obtained large

viewerships on certain streaming outlets with advertising, thereby monetizing their

gaming. With the advent of online streaming services, the popularity of such

competitions has increased dramatically; albeit, many competitions may also be attended

in person. See, e.g., Paul Tassi, 2012: The Year of eSports, F

ORBES (Dec. 20, 2012),

https://www.forbes.com/sites/insertcoin/2012/12/20/2012-the-year-of-esports/#

3e9518837e11 [https://perma.cc/7DGX-VEBB].

The coming year will see the [e-]sports [e]conomy grow to $696

million, a year-on-year growth of 41.3%. Brands are expected to

spend $517 million, broken down into $155 million on advertising,

$266 million on sponsorship, and a further $95 million on media

rights. Consumer spending this year on merchandise and tickets will

amount to $64 million. The remaining $116 million is the total

investment that game publishers will make into e[-]sports, the share

that is not directly recouped by any of the other revenue streams.

EWZOO, 2017 GLOBAL ESPORTS MARKET REPORT 13 (2017),

http://resources.newzoo.com/hubfs/Reports/Newzoo_Free_2017_Global_Esports_Market

_Report.pdf?hsCtaTracking=5a96aa39-a810-47a6-834b-559c317775c3%7C6a2d5758-

bab2-4d87-9fbe-f82dc9ba638a&__hstc=133451409.a9903ca3155abdc46b338f58161f

d13f.1490112406280.1490112406280.1490112406280.1&__hssc=133451409.5.1490112

406280&__hsfp=2869597247 [https://perma.cc/B7Y4-L7RM].

2018] LET'S PLAY 393

games—including both live streaming and video-on-demand—is

estimated to be over four billion dollars.

E. The Potential for Litigation

Given these figures, there is no doubt that the issue of control

over these downstream uses of video games is of high importance

to the various entities involved: the players and teams that compete

and broadcast their gameplay, the services that facilitate the

streaming of these broadcasts, and the video game publishers who

created the games. Further, as the global e-sports market alone

expected to triple to nearly $1.5 billion by 2020, the stakes are only

continuing to rise.

The industry has already seen quite a bit of litigation around

various aspects common to other areas of sports, such as player

contractual disputes and the distribution of broadcasting revenue.

It follows that, while most publishers are generally supportive of

content creation, these disputes might not be far from extending

See Market Brief: Gaming Video Content, SUPERDATA: GAMES & INTERACTIVE

MEDIA INTELLIGENCE, https://www.superdataresearch.com/market-data/gaming-video-

content-2015/ [https://perma.cc/XK37-KWZA] (last visited Mar. 3, 2017); see also James

Brightman, Twitch Outranks YouTube in $3.8bn Gaming Video Market – Superdata,

AMESINDUSTRY.BIZ (July 9, 2015), http://www.gamesindustry.biz/articles/2015-07-09-

twitch-outranks-youtube-in-usd3-8bn-gaming-video-market-superdata [https://perma.cc/

BF9B-GVLV] (showcasing how, even in 2015, gaming video content was “worth about

$3.8 billion globally, with an audience of 486 million people watching live streams,

trailers, walkthroughs and all sorts of gaming-related content made by fans”).

NEWZOO, supra note 51, at 14.

See, e.g., Nic Doucet, Report: H2K, TSM to Enter in Legal Dispute Over

Svenskeren,

THESCORE ESPORTS (Nov. 10, 2015), http://www.thescoreesports.com/

news/4753 [https://perma.cc/GUY2-F5MY] (describing a potential suit brought by one e-

sports team against another alleging, inter alia, tortious interference with the fulfillment

of a popular gamer’s employment contract for the 2016 season). Given the parallels

between e-sports and more traditional forms of competitive game play that is sports, it

seems reasonable to predict that many of the same issues that are prevalent in the more

familiar realm of sports and the law will come to light in the context of e-sports. See

Andrew Nixon et al., An Overview of eSports Explosion and Legal Issues Arising from It,

AWINSPORT (Feb. 9, 2016), http://www.lawinsport.com/features/item/an-overview-of-

esports-explosion-and-legal-issues-arising-from-it [https://perma.cc/2AXS-MS8Q].

Specifically, the realm of e-sports could see discussion of topics such as: players’ unions,

salary caps and transparancy, doping (i.e., cognitive enhancing drugs), some form of

overarching governing or regulatory body to help with dispute resolution and

rule-setting, etc. Id.

394 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXVII:381

into the realm of copyright. In fact, one ordeal involving a popular

LoL player highlights this rising tension.

In early 2015, a

controversy emerged involving a Twitch user who was exploiting a

feature in LoL that allowed any “solo queue game”

to be viewed

through the LoL software by anyone with a LoL account.

The

user created a channel called “SpectateFaker,” which automatically

checked for and streamed any of these solo queue matches

involving the professional e-sports player, Lee “Faker” Sang-

hyeok.

Faker, however, had signed a contract with another

streaming platform, Azubu, to exclusively stream on their

service.

In response, Azubu attempted to issue a DMCA

takedown to Twitch by claiming to be the rights holder, and

therefore, purporting that they are entitled by the Copyright Act to

require Twitch to remove the SpectateFaker channel.

However,

See Marc Merrill, SpectateFaker - What We Learned and What We’ll Do,

http://na.leagueoflegends.com/en/news/riot-games/announcements/spectatefaker-what-

we-learned-and-what-well-do [https://perma.cc/FJ4W-9Q9D] (last visited Mar. 3, 2017).

The article is attributed to “Tryndamere,” an online handle referring to Marc

“Tryndamere” Merrill, the Co-Founder and President of Riot Games. Id.

A solo queue game is a type of gameplay, where the user enters into competitive

team play individually, and the rest of the team members are populated by other random

individuals. See Solo Queue, U

RB. DICTIONARY, https://www.urbandictionary.com/define.

php?term=Solo%20queue [https://perma.cc/S45V-LFA3] (last visited Dec. 8, 2017).

Samuel Lingle, SpectateFaker Dares Riot Games to Shut Him Down, DOT ESPORTS

(Feb. 23, 2015, 2:58 AM), https://dotesports.com/league-of-legends/news/spectatefaker-

riot-games-dmca-dare-1458 [https://perma.cc/Y2NF-HVWN].

Id.

The Digital Millennium Copyright Act (DMCA), Pub. L. No. 105-304, 112 Stat.

2860 (1998), did many things, one of which was to heighten penalties for copyright

infringement on the internet. See 17 U.S.C. § 506 (2012). At the same time, it also

created a safe harbor for online service providers (“OSPs”), which are defined in the Act

as “a provider of online services or network access, or the operator of facilities

therefore.” Id. § 512(k)(1)(B). However, OSPs must comply with various requirements to

be eligible for the section 512 safe harbors. See id. § 512(c)(1). One such requirement is

that, when given proper notice of infringing material being posted on its network, the

OSP must “respond[] expeditiously to remove, or disable access to, the material that is

claimed to be infringing.” Id. § 512(c)(1)(C). The term ‘proper notice,’ as referred to in

this subsection, is what is known as a DMCA takedown notice. Further, the Act

enumerates a few necessary elements for such notice to be effective, including that the

notice be made by the owner of the allegedly infringed right (i.e., the copyright holder),

or someone authorized to act on their behalf. See id. § 512(c)(3)(A)(i). In this example,

Twitch would fall within the definition of an OSP, and therefore would seek to comply

2018] LET'S PLAY 395

current precedent dictates that a publisher’s copyright in a video

game extends to all of the audiovisual displays produced by a

game, notwithstanding player participation.

This leads to the

presumption that Riot Games, the maker of LoL, owns the

issuing a DMCA takedown request to Twitch.

This is because not

only do publishers own the entirety of the audiovisual displays

produced by their games,

but the LoL terms of use further

stipulate that downstream users contract away all control over any

content produced through playing LoL.

Therefore, it took Riot

Games, upon Faker’s request, to issue a separate DMCA takedown

to successfully shut down the SpectateFaker channel.

While this

with the section 512 safe harbor requirements to avoid copyright infringement liability.

According to current precedent, the rights holder over the entirety of the video game

audiovisuals is the video game publisher, Riot Games. See infra note 62 and

accompanying text. Therefore, the only person able to issue or authorize the issuance of a

DMCA takedown to Twitch, the OSP, is the rights holder, Riot Games.

See 17 U.S.C. § 512(c)(3)(A)(i).

See, e.g., Stern Elecs., Inc. v. Kaufman, 669 F.2d 852, 855 (2d Cir. 1982); see also

Midway Mfg. Co. v. Artic Int’l, Inc., 704 F.2d 1009, 1011 (7th Cir. 1983), cert. denied,

464 U.S. 823 (1983) (holding that playing a video game lacked the requisite creativity “to

make each performance of a video game the work of the player and not

the game’s inventor”).

See Merrill, supra note 55 (“[T]he DMCA issued by Azubu did not have a legal

standing as [Riot Games], not Azubu, own the gameplay content.”); see also

supra note 60.

See Midway Mfg. Co., 704 F.2d at 1011. If players were to assert a theory that

vested part ownership in the streams with them, they would likely focus on some type of

implied joint authorship theory or a derivative work theory. The latter would still require

permission from the publisher, and would only be possible if a copyright in all of a

game’s audiovisual displays does not in fact attach at the outset, as precedent currently

mandates. See infra Section III.B for more discussion. Further, the implied joint work

theory likely lacks the intent necessary to yield a joint work in which the players would

have rights. See Tyler T. Ochoa, Who Owns an Avatar?: Copyright, Creativity, and

Virtual Worlds, 14 V

AND. J. ENT. & TECH. L. 959, 979 (2012); see also Williams Elecs.,

Inc. v. Artic Int’l, Inc., 685 F.2d 870, 874 (3d Cir. 1982) (holding that players are not co-

authors of what appears on screen).

League of Legends Terms of Use, LEAGUE OF LEGENDS, http://na.leagueoflegends

.com/en/legal/termsofuse [https://perma.cc/L482-3LKJ] (last visited Mar. 3, 2017) (“We

(and our licensors) own and reserve all rights and title in and to the Riot Services, and all

data and content included therein, including . . . Game recordings and broadcasts . . . .

You can’t create any work of authorship based on the Game Content or Riot Services

except as expressly permitted by us.”).

See Lingle, supra note 57.

396 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXVII:381

anecdote may seem to encompass many legal issues—including

rights of publicity and harassment

—it is easy to see how these

tensions surrounding the issue of copyright ownership in the

underlying streams could spill over into the courts.

Such a result

could lead to revisiting the early video game cases of the 1980s,

thereby affecting the future of gaming.

This is of particular

interest because, whereas the earlier cases were concerned with

competing video games and associated free-rider concerns,

the

present climate is about newly arising markets in which content

creators are building upon the underlying content.

II. VIDEO GAMES’ AUDIOVISUAL DISPLAYS REVISITED

The player contribution associated with interactive media

particularly implicates issues of fair use when determining the true

extent of publisher control in these downstream markets. Although,

See, e.g., id.

See, e.g., id. (quoting the channel owner saying “I’m doing this stream because I can

legally and it’s allowed by League of Legends’ legal terms . . . . [This issue is] about a co-

owner of Riot Games being completely out of touch with e[-]sports and the spectator

mode. It’s about a company (Azubu) issuing a false DMCA claim for content they didn’t

even own.”). Spectator mode is a feature within LoL that allows users within the LoL

program to passively view games taking place in real-time without actually participating.

See Spectator Mode, L

EAGUE OF LEGENDS WIKI, http://leagueoflegends.wikia.com/

wiki/Spectator_Mode [https://perma.cc/9PH6-H8N5] (last visited Oct. 26, 2017). By

streaming a screen capture of this in-game feature on Twitch, the channel owner was able

to create the SpectateFaker channel. See id.

See, e.g., Lingle, supra note 57 (quoting Marc Merill saying “These are issues that

will affect the future of the game and the spectator mode [and a]ll of this needs to be

debated for the future of [LoL] and e[-]sports.”).

See, e.g., Atari, Inc. v. N. Am. Philips Consumer Elecs. Corp., 672 F.2d 607, 619–20

(7th Cir. 1982), superseded in part by statute, F

ED. R. CIV. PR. 52(a), as recognized in

Design Basics, LLC v. Lexington Homes, Inc., 858 F.3d 1093, 1105 (7th Cir. 2017)

(“Although not ‘virtually identical’ to PAC-MAN, K. C. Munchkin captures the ‘total

concept and feel’ of and is substantially similar to PAC-MAN.” (citing Midway Mfg. Co.

v. Dirkschneider, Civ. No. 81-0-243 (D. Neb. July 15, 1981)); Stern Elecs., Inc. v.

Kaufman, 669 F.2d 852, 855 (2d Cir. 1982) (noting that, without copyright protection for

video games’ audiovisual elements, “a determined competitor” could “manufactur[e] a

‘knock-off’” video game).

An extreme example of this content creation is “Machinima,” which is a style of

cinematic production that uses the audiovisual elements of a video game to create

separate works. See M

ACHINIMA, https://machinima.com (last visited Mar. 3, 2017)

(specializing in hosting videos and providing a platform to discuss machinima films).

2018] LET'S PLAY 397

one may also consider authorship and originality, the

idea/expression dichotomy, and fixation, all of which are discussed

in this Article later.

A. Fair Use and EULAs

As noted above, section 107 of the Copyright Act provides that

“fair use of a copyrighted work . . . is not an infringement of

When “determining whether the use . . . is a fair use,”

the statute requires that the following four factors be considered:

“(1) the purpose and character of the use . . .; (2) the nature of the

copyrighted work; (3) the amount and substantiality of the portion

used . . .; and (4) the effect of the use upon the potential market

for . . . the copyrighted work.”

Because the issue of fair use is

determined via “a case-by-case analysis” in light of the unique

facts of each case,

such an analysis may be applied individually

to the varying uses of differing genres of copyrighted video

games.

Fair use is a natural starting point for a discussion on the

copyrights afforded to video game audiovisuals because, if content

creators could assert strong fair use arguments for downstream

uses of video games, it is unlikely that courts would revisit the

precedent establishing the copyrightability of those games.

Under such an analysis, the second factor, the nature of the

work, seems likely to heavily favor game publishers as it pertains

to the audiovisual portions of their works, because these expressive

video games are at the core of what copyright intends to protect.

The third factor, however—the amount and substantiality—raises

17 U.S.C. § 107 (2012).

Id.

See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994).

Consider: (1) a stream of gameplay with added audiovisuals of the player inlayed on

the screen, and real-time commentary on the specific strategies employed in an RTS for

advertising revenue; versus (2) a stream of ARPG gameplay with no commentary or

review, but done by an unknown player, thereby generating no revenue. One adds much

more but generates profit, while the other adds virtually nothing but is

essentially non-commercial.

See, e.g., Campbell, 510 U.S. at 586 (“This factor calls for recognition that some

works are closer to the core of intended copyright protection than others, with the

consequence that fair use is more difficult to establish when the former

works are copied.”).

398 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXVII:381

an interesting question. If a copyright extends to all of the

audiovisual displays capable of being generated, then what

proportion of that work is incorporated by a single play of the

game? Courts have acknowledged that, notwithstanding the fact

that “[e]ach time a video game is played, a different sequence of

images appears on the screen,” the “set of images” capable of

being displayed receive copyright as an audiovisual work.

This

concept suggests that a single instance of gameplay is therefore

copying the entirety of the copyrighted audiovisual output of the

game.

Others might argue, however, that one instance of play is

really just a small proportion of the game and all of the possible

permutations of moves.

The more interesting issues at hand are the interplay between

the first factor—the purpose and character of the use—and the

fourth factor—the effect on the potential market for the

copyrighted work. Under Sony Corp. of America v. Universal City

Studios, Inc., a use deemed commercial under the first factor leads

to a presumption of market harm in the fourth factor.

Importantly, a use that is “significantly transformative,”

particularly in its benefit to the public, may negate this

presumption.

Ultimately, it seems any of the content creators that

are monetizing through ads, or content distributors, would face the

shifted burden of Sony.

It may be possible for a defendant to rebut this presumption,

however, given that streaming video is not likely to directly

replace interactive gameplay. Publishers will likely contest this

assertion by noting that, to the extent that games are played for

their plotlines, watching games be played may replace their

Midway Mfg. Co. v. Artic Int’l, Inc., 704 F.2d 1009, 1011 (7th Cir. 1983).

See id.

See 464 U.S. 417, 449 (1984) (“If the Betamax were used to make copies for a

commercial or profit-making purpose, such use would presumptively be unfair.”).

See, e.g., Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir. 2007)

(holding that Google’s use of thumbnails to point to infringing websites was a fair use,

and noting that “a search engine puts images ‘in a different context’ so that they are

‘transformed into a new creation,’” thereby negating the Sony presumption (quoting Wall

Data Inc. v. L.A. Cty. Sheriff’s Dep’t, 447 F.3d 769, 778 (9th Cir. 2006))).

See Sony Corp. of Am., 464 U.S. at 449.

2018] LET'S PLAY 399

entertainment value.

Potential defendants could also attempt to

eliminate this presumption by showing a transformative use.

It is

possible that courts may consider the transformation of

gameplay—originally serving an immersive and interactive

function—into a consumptive medium—serving a more

informative function—as a sufficiently transformative fair use,

thereby favoring the defendants.

Alternatively, given the

similarly consumptive and entertaining nature of both uses, courts

may take the opposite approach and view the new use as

insufficiently transformative.

Nonetheless, a more in-depth analysis of fair use is

unnecessary because of the Terms of Service agreements (“ToSs”)

currently distributed with video games. Software users are often

bound by various covenants and conditions that may limit the ways

in which they can use the software.

Failure to abide by these

stipulations may enable publishers to pursue breach of contract or

restriction.

It is well established that users of software can be

mere licensees, rather than owners.

Moreover, parties are free to

While this could be an argument for one type of passive consumption, many uses

involve avid, regular players of a game viewing tournaments, or ARPG players looking

up instructional walk-throughs to help guide them through the game.

See, e.g., Perfect 10, Inc., 508 F.3d at 1164 (“A work is ‘transformative’ when the

new work does not ‘merely supersede the objects of the original creation’ but rather ‘adds

something new, with a further purpose or different character, altering the first with new

expression, meaning, or message.’” (quoting Campbell v. Acuff-Rose Music, Inc., 510

U.S. 569, 579 (1994))).

See id. at 1165 (“Although an image may have been created originally to serve an

entertainment, aesthetic, or informative function, a search engine transforms the image

into a pointer directing a user to a source of information.”).

See id.

See MDY Indus., LLC v. Blizzard Entm’t, Inc., 629 F.3d 928, 939 (9th Cir. 2010)

(“We refer to contractual terms that limit a license’s scope as ‘conditions,’ the breach of

which constitute copyright infringement. We refer to all other license terms as

‘covenants,’ the breach of which is actionable only under contract law.”

(citation omitted)).

See id.

See, e.g., Vernor v. Autodesk, Inc., 621 F.3d 1102, 1111 (9th Cir. 2010), cert.

denied, 132 S. Ct. 105 (2011) (“We hold today that a software user is a licensee rather

than an owner of a copy where the copyright owner (1) specifies that the user is granted a

license; (2) significantly restricts the user’s ability to transfer the software; and

(3) imposes notable use restrictions.”).

400 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXVII:381

contract away their ability to make fair uses of a work via these

ToSs without being preempted by federal copyright law, even

where such agreements may be viewed as contracts of adhesion.

Currently, many publishers include clauses in their ToSs that

effectively limit a user’s potentially fair use of the gameplay.

Therefore, while fair use would still allow one to avoid a copyright

infringement suit, publishers would still have remedies under

contract law.

Consequently, given the current validity of such

clauses in relation to federal copyright law, fair use defenses—

even if otherwise viable on their merits—would likely still fail to

avoid publisher control of these markets.

B. Authorship and Originality

In addition to fair use, defendants may resort to other familiar

arguments to avoid publisher control. One area of debate in early

case law centered on the interactive element of video game

consumption—namely, that video game players, through their

active participation, are partly responsible for the audiovisual

content ultimately perceived.

“To qualify for copyright

protection, a work must be original to the author.”

Further,

“[o]riginal . . . means only that the work was independently created

by the author (as opposed to copied from other works), and that it

possesses at least some minimal degree of creativity.”

Consequently, in the early video game disputes, courts had to

determine to what extent the player’s involvement impacts the

See, e.g., Davidson & Assocs. v. Jung, 422 F.3d 630, 639 (8th Cir. 2005) (noting

that, in a suit brought by Blizzard against a reverse engineer, “a state can permit parties to

contract away a fair use defense or to agree not to engage in uses of copyrighted material

that are permitted by the copyright law [sic] if the contract is freely negotiated” (quoting

Bowers v. Baystate Techs., Inc., 320 F.3d 1317, 1337 (Fed. Cir. 2003)

(Dyk, J., dissenting))).

See, e.g., League of Legends Terms of Use, supra note 64.

See MDY Indus., LLC, 629 F.3d at 939 (distinguishing between covenants and

license conditions, with a violation of the latter giving rise to copyright remedies and the

former giving rise to contract remedies).

See, e.g., Stern Elecs., Inc. v. Kaufman, 669 F.2d 852, 856 (2d Cir. 1982).

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).

Id. at 345.

2018] LET'S PLAY 401

status of a game’s dynamic audiovisuals as an “original work[] of

authorship” under the Copyright Act.

The U.S. Court of Appeals for the Seventh Circuit did just that

in Midway Manufacturing v. Artic International, Inc., in which

they considered “whether the creative effort in playing a video

game is enough like writing or painting to make each performance

of a video game the work of the player and not the game’s

inventor.”

The game at issue was Pac-Man, and the court

determined that “[p]laying a video game is more like changing

channels on a television” than like writing or painting because—

being unable to “create any sequence he wants out of the images

stored [in] the game[]”—the player lacks “control over the

sequence of images that appears on the video game screen.”

Consequently, the court held that the audiovisual displays were

eligible for copyright protection as original works of authorship

despite player interaction.

The U.S. Court of Appeals for the Third Circuit similarly

refuted a defendant’s argument in determining whether the player’s

participation in the game Defender

“withdraws the game’s

audiovisual work from copyright eligibility because . . . the player

becomes a co-author of what appears on the screen.”

The court

found the defendant’s argument unconvincing, notwithstanding the

fact that the player’s participation causes “the audiovisual

presentation to change in some respects from one game to the

next,” as “there is always a repetitive sequence of a substantial

portion of the sights and sounds of the game.”

100

Further, “many

See, e.g., Stern Elecs., 669 F.2d at 853; Williams Elecs., Inc. v. Artic Int’l, Inc.,

685 F.2d 870, 874 (3d Cir. 1982).

704 F.2d 1009, 1011 (7th Cir. 1983), cert. denied, 464 U.S. 823 (1983).

Id. at 1012.

Id.

For more information on the gameplay of this game, see Defender: A [Thirty-Eight]-

Year-Old Arcade Video Game PCB by Williams Electronics., Inc., GAMINGHISTORY,

https://www.arcade-history.com/?n=defender&page=detail&id=614

[http://perma.cc/UAD9-T768] (last visited Oct. 14, 2017).

Williams Elecs., Inc., 685 F.2d at 874.

100

Id. (emphasis added).

402 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXVII:381

aspects of the display remain constant from game to game

regardless of how the player operates the controls.”

101

If courts were to revisit this argument today, it seems possible

that real-time gameplay would fall short of being a protectable

audiovisual work. According to precedent, it is possible that courts

would consider the enhanced ability to interact in modern gaming

to be a fully “original work of authorship.” On one end of the

spectrum, some games—namely, digital CCGs—still seem to fit

squarely within these definitions.

102

Conversely, other games—

such as sandbox games or MMORPGs—are much more like

painting a portrait than they are like “changing channels on a

television.”

103

For example, Minecraft is a game about “staying

alive in your own fantastic world,” and is “a creative space to build

almost anything you can imagine!”

104

Likewise, World of Warcraft

is “an online world of . . . limitless adventure.”

105

These types of

open-world games allow a vast array of possibilities for user

interaction. This makes it nearly impossible to produce an entirely

similar sequence of audiovisuals from game-to-game, inviting the

question: To what extent does player contribution change the game

enough to preclude audiovisual copyrightability as an original

work of authorship?

106

More vexing are ARPGs and RTSs, as the former has a more

scripted plotline,

107

and the latter has a very confined world with

“substantially similar gameplay” from game-to-game.

108

The way

101

Id.

102

See supra notes 38–39 and accompanying text (describing the traditional, tabletop

feel of turn-based CCGs).

103

See Midway Mfg. Co. v. Artic Int’l, Inc., 704 F.2d 1009, 1012 (7th Cir. 1983), cert.

denied, 464 U.S. 823 (1983).

104

Tom Stone, How to Minecraft, MINECRAFT (Feb. 23, 2017), https://minecraft.net/en-

us/article/how-minecraft [https://perma.cc/Q3E4-PQ22] (emphasis added).

105

World of Warcraft Digital Download, BLIZZARD ENT., https://us.battle.net/shop/

en/product/world-of-warcraft [https://perma.cc/ADX5-3YEA] (last visited Mar. 3, 2017)

(emphasis added).

106

See Williams Elecs., Inc., 685 F.2d at 874. While these types of games represent the

most eligible candidates for success under this theory, they are still vulnerable to the

discussion infra notes 112–18 and accompanying text.

107

See supra notes 32–33.

108

See, e.g., League of Legends, What is League of Legends, YOUTUBE (Oct. 13, 2015),

https://www.youtube.com/watch?v=BGtROJeMPeE [https://perma.cc/38ZZ-FSNJ]

2018] LET'S PLAY 403

in which players interact with other characters in ARPGs, through

the limited sets of responses and the similarity in plotline trajectory

across plays, lends itself toward analogizing these games to

“changing channels on a television.”

109

Similarly, RTSs like LoL—

with a standard three-lane arena, and a strategy surrounding the

more predictable way that hazards

110

interact with characters—

present a stronger argument that “many aspects of the display

remain constant . . . regardless of how the player operates

the controls.”

111

Some may consider these arguments as viewing the more

broadly expressive elements of the game—such as the plot and

setting—as constituting the audiovisuals, rather than the more

discrete “series of related images,”

112

that make up the “set of

images displayed as some kind of unit,”

113

which are ultimately

live streamed or uploaded. Specifically, the U.S. Court of Appeals

for the D.C. Circuit held that the point of inquiry for originality of

authorship—as it pertains to copyrightability of the audiovisual

displays—is “the total sequence of images displayed as the game is

(describing the layout of the arena and the recurring way in which various hazards in the

arena interact with the player character).

109

See Midway Mfg. Co. v. Artic Int’l, Inc., 704 F.2d 1009, 1012 (7th Cir. 1983), cert.

denied, 464 U.S. 823 (1983).

110

The term “hazards” refers to the various aspects of a map that are not controlled by

any player (i.e., they are controlled by artificial intelligence programmed into the game),

and that may inflict damage on the players. See, e.g., Summoner’s Rift, L

EAGUE OF

LEGENDS WIKI, http://leagueoflegends.wikia.com/wiki/Summoner%27s_Rift

[https://perma.cc/2BHY-FFM9] (last visited Oct. 2, 2017) (describing the various

monsters and turrets positioned throughout a map to inflict damage on each team);

see also supra note 109.

111

Williams Elecs., Inc., 685 F.2d at 874.

[M]any aspects of the sights and the sequence of their appearance

remain constant during each play of the game. These include the

appearance (shape, color, and size) of the player’s spaceship, the

enemy craft, the ground missile bases and fuel depots, and the terrain

over which (and beneath which) the player’s ship flies, as well as the

sequence in which the missile bases, fuel depots, and terrain appears.

Stern Elecs., Inc. v. Kaufman, 669 F.2d 852, 856 (2d Cir. 1982).

112

17 U.S.C. § 101 (2012).

113

Midway Mfg. Co., 704 F.2d at 1011 (suggesting a broader interpretation of the

phrase “series of related images”).

404 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXVII:381

played.”

114

Courts may look to the real-time gameplay of an RTS

such as LoL, and determine that the skill and strategy involved “is

more like . . . painting a picture,”

115

regardless of the more limited

confines of a LoL arena.

116

Certainly, the viewers contributing to

the nearly half-billion dollar e-sports industry might agree.

117

Ultimately, the protection afforded to live or recorded

gameplay will likely come down to how courts interpret the

“substantiality” of similarities between different instances of live

gameplay

118

—i.e., does the contribution of the publishers meet the

standards for copyrightability? Even in games with more freedom,

players today are still confined to the original creative efforts of,

for example, Minecraft’s creators. Further, even in games that

require more skill, such as LoL, players can only interact with the

arena and the hazards within them in ways conceived by

developers such as Riot Games. Consequently, some courts may

construe precedent broadly enough to encompass today’s games.

Each play of a game exists within the same original world created

by the publisher. A player’s repertoire of “moves,” while

exceptionally more complex, may still be akin to changing

channels, as every user interaction changes the audiovisual display

only in a way pre-scripted by the programmer-author.

119

Thus,

courts may view the similarities between each instance of

gameplay as similar enough to warrant protection as original works

of authorship.

This potential reasoning hinges on the argument that,

regardless of how complex video games have become, the

publishers ultimately author any possible audiovisual sequence,

114

Atari Games Corp. v. Oman, 888 F.2d 878, 883 (D.C. Cir. 1989) (Ginsburg, J.)

(emphasis added) (holding that the single-player game BREAKOUT was sufficiently

original in its real-time gameplay—as opposed to its constituent elements—to be a

copyrightable audiovisual work).

115

Midway Mfg. Co., 704 F.2d at 1012.

116

The gameplay of RTSs such as LoL focus on a more limited map with a recurring

way in which various hazards in the arena interact with the player character, such that one

can use strategy in interacting and traversing with the map as part of their method to

defeat the other team. See supra note 108.

117

See generally NEWZOO, supra note 51.

118

See, e.g., Williams Elecs., Inc. v. Artic Int’l, Inc., 685 F.2d 870, 874 (3d Cir. 1982).

119

See Midway Mfg. Co., 704 F.2d at 1012.

2018] LET'S PLAY 405

notwithstanding any player interaction. This logic rests upon the

fact that regardless of their complexity, video games still remain—

at their core—elaborate state machines.

120

C. Games as Systems

This understanding of video games as state machines, on the

other hand, may also give rise to the argument that video games’

audiovisual gameplay is uncopyrightable subject matter.

121

It is

well established that copyright extends only to the expression

contained in a work, and not to the underlying ideas.

122

codifying this concept, the Copyright Act is explicit that a

extends to any “system” or “method of operation.”

123

The

argument, therefore, is that gameplay, when viewed as a state

machine or a mere system of rules, falls within the scope of section

102(b) and thereby represents uncopyrightable subject matter.

124

Importantly, these arguments acknowledge that, just as with board

games, the underlying expressive elements of video games—such

as characters, maps, and other creative elements—may be

copyrightable.

125

The real-time combination of these elements is

what constitutes gameplay, and because their combination takes

place within a “system”—i.e., the state machine that is a video

game—any instance of gameplay falls within section 102(b).

126

A key case that seems to support a similar argument is Allen v.

Academic Games League of America, Inc., in which the U.S. Court

120

See Bruce E. Boyden, Games and Other Uncopyrightable Systems, 18 GEO. MASON

L. REV. 439, 441–42 (defining a state machine in the context of video games as “a means

for correlating a range of permitted inputs (i.e., game moves) to a determinate set of

outputs (i.e., changes in the game state)”).

121

See generally id.

122

See, e.g., Mazer v. Stein, 347 U.S. 201, 217 (1954) (“Unlike a patent, a copyright

gives no exclusive right to the art disclosed; protection is given only to the expression of

the idea—not the idea itself.”).

123

17 U.S.C. § 102(b) (2012) (“In no case does copyright protection for an original

work of authorship extend to any idea, procedure, process, system, method of operation,

concept, principle, or discovery, regardless of the form in which it is described,

explained, illustrated, or embodied in such work.”).

124

See generally Boyden, supra note 120.

125

See Lastowka, supra note 47, at 504–05.

126

See id.

406 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXVII:381

of Appeals for the Ninth Circuit held that tournament play of a

board game did not constitute an infringing public performance.

127

In doing so, the court noted that extending the term “play”

128

include “the playing of games” would place an “undue restraint on

consumers,” as it would allow board game publishers to essentially

“control when and where purchasers of games may play the

games.”

129

Further, the court noted “[t]his doctrine of merger is

particularly applicable with respect to games ‘since they consist of

abstract rules and play ideas.’”

130

Ultimately, the court examined

the statutory definition of “perform”—as used in section 106(4)

131

and originally defined in section 101

132

—and determined, in a

somewhat conclusory manner, that “games are meant to be

‘played.’”

133

Consequently, the court held that tournament play of

a board game did not fall within the meaning of a “public

performance” as defined by the Copyright Act.

134

127

89 F.3d 614, 616 (9th Cir. 1996).

128

As used in the section 101 definition of “perform” to determine what constitutes a

“public performance” under section 106(4) of the Copyright Act. See 17 U.S.C.

§§ 101, 106(4).

129

Allen, 89 F.3d at 616.

The term ‘play’ has not been extended to the playing of games. To do

so would mean interpreting the Copyright Act in a manner that would

allow the owner of a copyright in a game to control when and where

purchasers of games may play the games and this court will not place

such an undue restraint on consumers.

Id.

130

Id. at 617 (quoting Midway Mfg. Co. v. Bandai-Am., Inc., 546 F. Supp. 125, 148

(D.N.J. 1982)).

131

17 U.S.C. § 106(4) (providing that under the fourth prong of section 106 of the

right “to perform the copyrighted work publicly.” (emphasis added)).

132

Id. § 101 (providing that to “perform” means “to recite, render, play, dance, or act” a

work (emphasis added)).

133

See Allen, 89 F.3d at 616.

134

See id. (“In applying these statutory definitions [of ‘publicly’ and ‘perform’], we

conclude that the playing of a game is not a ‘performance’ within the meaning of the

arcade game constitutes a public performance. See Red Baron-Franklin Park, Inc. v. Taito

Corp., 883 F.2d 275, 279 (4th. Cir. 1989). Nonetheless, that decision has come under

intense scrutiny. See, e.g., 2 N

IMMER ON COPYRIGHT § 8.15[I] (2017) (“[T]he Fourth

Circuit’s reasoning in Red Baron is itself sufficiently deficient that the case’s reasoning

should be rejected on its own merits.”); Boyden, supra note 120, at 473, n.199.

2018] LET'S PLAY 407

This conclusory holding, however, does not explicitly

overshadow early debates about the idea-expression dichotomy

and the issue of merger in the murkier realm of video gameplay.

One such debate took place in M. Kramer Manufacturing Co., Inc.

v. Andrews,

135

in which the U.S. Court of Appeals for the Fourth

Circuit overturned the lower court’s decision that the video game

at issue “was not copyrightable because it was a ‘system or manner

of playing a game,’” falling within the exceptions of section

102(b).

136

The Fourth Circuit looked first to the legislative history,

noting that it reflected an intent for section 102(b) to merely codify

precedent, and not to “enlarge[] or contract[] the scope of

137

The ultimate intent

of section 102(b) was to make clear that the expressive elements in

a computer program—as distinct from the processes or methods—

are copyrightable,

138

“whether represented in a video game or

otherwise.”

139

As the Fourth Circuit noted, this holding comported

with notable earlier cases upholding the copyrightability of

operating systems, notwithstanding arguments that they were

uncopyrightable processes or methods of operation.

140

These earlier cases seem to focus more generally on whether

computer programs were per se uncopyrightable as systems.

141

The

Fourth Circuit then expanded the umbrella of computer programs

to include video games, noting that the copyright thereby extends

to the audiovisual elements of a video game, which are an

extension of the expression of the programmer-author.

142

135

783 F.2d 421 (4th Cir. 1986).

136

Id. at 434.

137

Id. Boyden argues this is too narrow of an interpretation, as the precedent construes

each of the words delineated in section 102(b)—e.g., idea, process, system, etc.—to mean

“idea” as distinct from “expression,” meaning that all of the examples but “idea” in this

section are superfluous verbiage. Boyden, supra note 120, at 460.

138

See M. Kramer Mfg. Co., 783 F.2d at 434.

139

Id. at 435.

140

See id.

141

See id. (“[R]ecent cases . . . have held that computer programs[] are not to be denied

copyrightability as a ‘process,’ or ‘system,’ precluded from registration under

section 102(b).” (footnote omitted)).

142

See id. (noting that “all computer programs [whether in a video game or other

work] . . . are designed to operate a machine in such a way as to ultimately produce some

useful communication . . . i.e., to express” (emphasis in original) (quoting Apple

408 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXVII:381

Importantly, the court makes little of the distinction between the

nonliteral and clearly copyrightable elements as they exist

statically (e.g., characters and maps), versus the dynamic,

nonliteral elements

143

(i.e., the real-time interaction between these

static elements) that comprise an instance of gameplay.

144

The

court merely noted that the idea of the game is not protected, but

the “shapes, sizes, colors, sequences, arrangements and sounds

[that] provide[] something new or additional over the idea are

protected.”

145

Consequently, courts today might be willing delve

deeper into whether this conclusion necessarily means that an

instance of real-time gameplay is copyrightable.

The question, therefore, is to what extent does the application

of a state machine (i.e., a system) to a set of discrete, static,

copyrightable elements yield a copyrightable audiovisual output?

The answer depends on the extent to which courts view the real-

time audiovisual output of the underlying state machine as

comprising some new or additional expression over the

uncopyrightable elements of the system.

146

For instance, a court

may apply the Second Circuit’s abstraction-filtration-comparison

test to determine which aspects of real-time audiovisual gameplay

are actually protected.

147

This test proposes that, in order to

determine which elements of a computer program are

copyrightable, one should: (1) “break down the . . . program into

its constituent structural parts” (i.e., abstraction); (2) examine each

part for uncopyrightable ideas, “expression that is necessarily

incidental to those ideas,” or “elements that are taken from the

public domain” (i.e., filtration); and then (3) compare the

Comput., Inc. v. Formula Int’l, Inc. 775, 780 (C.D. Cal. 1983), aff’d, 725 F.2d 521

(9th Cir. 1984))).

143

See MDY Indus., LLC v. Blizzard Entm’t, Inc., 629 F.3d 928, 942–43 (9th Cir.

2010) (describing, as it pertains to WoW, the “real-time experience of traveling through

different worlds, hearing their sounds, viewing their structures, encountering their

inhabitants and monsters, and encountering other players” as “[the game’s] dynamic non-

literal elements” (emphasis added)).

144

See M. Kramer Mfg. Co., 783 F.2d at 435.

145

See id. (alteration in original) (internal quotation marks omitted) (quoting Atari, Inc.

v. N. Am. Phillips Consumer Elecs., Corp., 672 F.2d 607, 617 (7th Cir. 1982)).

146

See, e.g., id. at 435–36.

147

See, e.g., Comput. Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 706 (2d Cir. 1992).

2018] LET'S PLAY 409

expression that remains with “the allegedly infringing program”

(i.e., comparison).

148

Particularly, this inquiry focuses on which

expressive elements survive the filtration step.

149

Specifically,

courts should look to see if using a system—which merely dictates

responses to inputs—to produce audiovisual displays comprised of

these responses is expressive, in sum, when such responses are

carried out by discrete, expressive elements. For example, consider

a sand-box game that comprises: an expressive, surreal world; an

expressive, alien-like character; and the application of impeccably

realistic, earth-like physics. Looking at each independently, the

first two are obviously copyrightable, while the latter is not.

150

But

what about the real-time interactions of the first two, as dictated by

the latter—the earth-like physics? Currently, courts seem reluctant

to preclude particular expressions in the presentation of even more

functional

151

software from copyrightability.

152

Therefore, it seems

likely that courts will continue to maintain that the audiovisual

output of a video game system is simply a “particular expression of

[the] system,” allowing real-time gameplay to continue to qualify

as copyrightable expression.

153

However, this analysis may grow

more complicated, as even the elements of video games that may

be perceived as expression—such as maps and environments—are

increasingly created using elaborate systems of rules to enable

unfathomably large universes.

154

148

See id.

149

See id.

150

The underlying portions of the code might be, but in a non-literal sense it is not.

151

To distinguish from the more recreational software that are video games.

152

See Am. Dental Ass’n v. Delta Dental Plans Ass’n, 126 F.3d 977, 980 (7th Cir.

1997) (“A dictionary cannot be called a ‘system’ just because new novels are written

using words, all of which appear in the dictionary. Nor is word-processing software a

‘system’ just because it has a command structure for producing paragraphs.”).

153

See Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1366 (Fed. Cir. 2014) (citing

Toro Co. v. R & R Prods. Co., 787 F.2d 1208, 1212 (8th Cir. 1986)).

154

See Simon Parkin, No Man’s Sky: The Game Where You Can Explore [Eighteen]

Quintillion Planets, G

UARDIAN (July 12, 2015), https://www.theguardian.com/

technology/2015/jul/12/no-mans-sky-18-quintillion-planets-hello-games

[https://perma.cc/Z7FR-ZT24] (describing a game featuring “a universe created by

mathematical rules rather than an artist’s eye and imagination”). It is true this game

suffered issues at launch associated with claims that the number of planetary variations

was wildly overstated. See Sam Machkovech, No Man’s Sky Creator Describes Issues

with Launch, Crashes, Money, A

RSTECHNICA (Mar. 2, 2017), https://arstechnica.com/

410 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXVII:381

D. Fixation

The question of whether these particular expressions are

sufficiently fixed still remains.

155

works “fixed in [a] tangible medium of expression.”

156

A common

argument in the early arcade cases closely tracked the arguments

involving authorship and originality: contending that the player

interactivity and the differing sequences of audiovisuals essentially

demonstrated that there was no “fixed” audiovisual work eligible

for protection.

157

Specifically, the alleged infringers argued that

because “there is no set or fixed performance” and “the video

game generates or creates ‘new’ images each time,” the game is

“transient, and cannot be ‘fixed.’”

158

However, courts did not agree

with this reasoning.

159

For example, the Second Circuit noted that,

while “some of [a video game’s] sights and sounds will not be seen

and heard during each play of the game[,] . . . the images remain

fixed, capable of being seen and heard each time.”

160

Consequently, courts generally agreed that a video game

constitutes an “audiovisual work [that] is permanently embodied in

gaming/2017/03/sean-murray-unveils-hello-labs-will-incubate-more-procedural-tech-

games/ [https://perma.cc/M7AY-NGZR]. Nonetheless, it illustrates the underlying idea

that games may be increasingly relying on mathematical content-generation systems.

155

As defined by the Copyright Act:

A work is “fixed” in a tangible medium of expression when its

embodiment in a copy or phonorecord, by or under the authority of

the author, is sufficiently permanent or stable to permit it to be

perceived, reproduced, or otherwise communicated for a period of

more than transitory duration. A work consisting of sounds, images,

or both, that are being transmitted, is “fixed” for purposes of this title

if a fixation of the work is being made simultaneously with

its transmission.

17 U.S.C. § 101 (2012).

156

Id. § 102(a).

157

See, e.g., Williams Elecs., Inc. v. Artic Int’l, Inc., 685 F.2d 870, 874 (3d Cir. 1982);

Stern Elecs., Inc. v. Kaufman, 669 F.2d 852, 855–56 (2d Cir. 1982).

158

Williams Elecs., Inc., 685 F.2d at 874.

159

See, e.g., id.; Stern Elecs., Inc., 669 F.2d at 856; Midway Mfg. Co. v. Dirkschneider,

543 F. Supp. 466, 480 (D. Neb. 1981) (“[I]t is clear that the plaintiff’s audiovisual works

are fixed in the printed circuit boards. The printed circuit boards are tangible objects from

which the audiovisual works may be perceived for a period of time

more than transitory.”).

160

Stern Elecs., Inc., 669 F.2d at 856 (emphasis added).

2018] LET'S PLAY 411

a material object, the memory devices, from which it can be

perceived with the aid of the other components of the game.”

161

As with the discussions surrounding the authorship argument,

the courts seemed to focus on the “[t]he repetitive sequence of a

substantial portion of the sights and sounds” that allowed video

game audiovisuals to qualify for copyright protection.

162

Therefore, as with authorship, the increased complexity of newer

video games

163

may cause courts to reconsider their previous logic

that a “substantial” portion of the audiovisuals recur with each

play, allowing a game to be sufficiently fixed.

164

Nevertheless,

there is a more technical issue unique to fixation that may

supplement this discussion. Previously, “memory devices,”

165

which enabled the audiovisual displays to be sufficiently fixed,

were a part of printed circuit boards that were the pervasive

method of distributing arcade games.

166

In early arcade games, the

game was physically designed into the hardware, and, as the

technology matured, was later coded into read-only memory

present on the program boards.

167

Today, most video games are

played on devices with volatile, random-access memory (“RAM”).

161

See, e.g., Williams Elecs., Inc., 685 F.2d at 874 (quoting Stern Elecs., Inc., 669 F.2d

at 856) (internal quotation marks omitted); Dirkschneider, 543 F. Supp. at 480 (“The

printed circuit boards are tangible objects from which the audiovisual works may be

perceived for a period of time more than transitory. The fact that the audiovisual works

cannot be viewed without a machine does not mean the works are not fixed.”).

162

Stern Elecs., Inc., 669 F.2d at 856 (“Nevertheless, many aspects of the sights and the

sequence of their appearance remain constant during each play of the game.”).

163

Compare Klaus Scholz, Arcade - Scramble 1981 (HD), YOUTUBE (Oct. 28, 2010),

https://www.youtube.com/watch?v=m-PDf1Su6gA [https://perma.cc/2Q3E-9CZN]

(showing the specific game at issue in Stern Elecs., Inc., which is an arguably simplistic,

two-dimensional space shooter), with KingofCasual, World of Warcraft Gameplay 2014 -

Better Quality | Level 90 Boost, Y

OUTUBE (Mar. 17, 2014), https://www.youtube.com/

watch?v=_uCG5bkprOc [https://perma.cc/RA9D-THYW] (showing three-dimensional

gameplay with intricate graphics and greater player interaction in a large,

open-world format).

164

See supra discussion in Section II.B.

165

See Stern Elecs., Inc., 669 F.2d at 856.

166

See, e.g., ATARI, ASTEROIDS: OPERATION MAINTENANCE AND SERVICE MANUAL 24,

fig. 16 (1979), https://www.mikesarcade.com/arcade/manuals.html [https://perma.cc/

3TFG-QYP6] (portraying the printed circuit board (PCB) schematic of the video game,

Asteroids, as it was permanently printed onto the hardware that was distributed inside the

arcade console).

167

See id.

412 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXVII:381

Moreover, many video games involve extensive use of servers to

enable multiplayer capability, adding further complexity to the

question of fixation.

168

This latter fact adds a level of complexity

for a copyright analysis, specifically as it pertains to multiplayer

games such as RTSs or MMORPGs.

It is true that, with any game, all of the possible discrete sights

and sounds are stored in some manner in a fixed form on a disc or

hard drive. Still, with a MMORPG such as WoW, potential

defendants may argue that the perceived audiovisual work exists

merely in RAM and across various servers, as the players’

movements and interactions are communicated to a server and vice

versa. The Ninth Circuit approached the complexity of RAM in

MAI Systems Corp. v. Peak Computer, Inc., finding that a

temporary copy of a program existing in RAM was sufficiently

fixed to constitute infringement.

169

However, this had to do with

whether a copy in RAM was sufficiently fixed to infringe a work

that was already fixed and copyrighted—meaning the literal copy

in RAM was an entire duplicate of the fixed, literal work, and

would persist ad infinitum until the program was closed.

170

Here,

the question is whether the dynamic, non-literal elements of real-

time video game play are sufficiently fixed to be

eligible for copyright.

It is possible that courts may not view new games any

differently than precedent, noting that, as before, all of the

potential sights and sounds that form a sequence of images making

up an audiovisual work are stored within the fixed medium through

which the game is distributed, and the experience is substantially

similar from play to play.

171

Moreover, in the age of the internet,

168

See, e.g., Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 125, 129–30

(2d Cir. 2008) (noting how the fact that the technology at issue involves “a complex

system requiring numerous computers, processes, networks of cables” complicates the

fixation analysis (quoting Twentieth Century Fox Film Corp. v. Cablevision Sys. Corp.,

478 F. Supp. 2d 607, 612 (S.D.N.Y. 2007))).

169

See MAI Sys. Corp. v. Peak Comput., Inc., 991 F.2d 511, 518 (9th Cir. 1993)

(holding that a representation of a computer program “created in the RAM is ‘sufficiently

permanent or stable to permit it to be perceived, reproduced, or otherwise communicated

for a period of more than transitory duration’”).

170

See id.

171

See, e.g., Stern Elecs., Inc., v. Kaufman, 669 F.2d 852, 856 (2d Cir. 1982).

2018] LET'S PLAY 413

courts may still find that all parts of the work are sufficiently

fixed—whether locally on the gaming device or remotely on

servers—such that the work in total is eligible for protection.

172

Undoubtedly, today’s games are significantly more complex,

particularly in light of the fact that much of the interactive

experience hinges upon the performances of competing players.

Therefore, “many aspects of the sights [of a game] and the

sequence of their appearance” may no longer be viewed as

“remain[ing] constant during each play.”

173

Rather, the ever-

changing interactions between the multiple players prevent these

games from containing such “repetitive sequence[s] of . . . sights

and sounds.”

174

The U.S. Court of Appeals for Second Circuit, in

Stern Electronics, Inc. v. Kaufman, referred to audiovisual displays

that were “capable of being seen and heard”—specifically,

portions of the game that you could eventually experience if you

made it that far into the level.

175

Today, there is a virtually limitless

series of sights and sounds capable of being portrayed, depending

on the countless interactions with the large quantity of other player

characters. In light of this, one could argue that the sets of sights

and sounds ultimately experienced merely exist in a buffer on the

RAM, and are thereby ineligible for copyright.

176

This would mean

that these massively multiplayer online (“MMO”) games are not

necessarily fixed at the outset, with the actual gameplay being

quite fleeting—in stark contrast with gameplay that was fixed in an

arcade machine’s printed circuit board.

172

See id. at 855 n.4 (“Whether located in the PROM prepared for this particular game

or elsewhere in the total assembly, all portions of the program, once stored in memory

devices anywhere in the game, are fixed in a tangible medium within the meaning

of the Act.”).

173

Id.

174

Id.

175

See id. at 856 (emphasis added) (“[T]he images remain fixed, capable of being seen

and heard each time a player succeeds in keeping his spaceship aloft long enough to

permit the appearances of all the images and sounds of a complete play of the game.”).

176

See Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 129–30 (2d Cir.

2008) (declining to extend MAI, and holding that a video stream buffer existed on a

computer for too transitory of a period to qualify as a directly infringing copy).

414 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXVII:381

III. POTENTIAL CONSEQUENCES

A. Copyright Registration

Notwithstanding this fixation argument, a particular instance of

gameplay becomes fixed once uploaded or, possibly, transmitted

via a live stream.

177

Similarly, even if the system is treated such

that copyright cannot attach at the outset to the entirety of the

audiovisuals capable of being produced, a discrete instance of

gameplay recorded as a single audiovisual may be eligible for

178

However, there remains the issue of

conferred to registered works—such as the ability to sue for

infringement

179

or, more significantly, the ability to issue a DMCA

takedown request.

180

Even if the publishers held copyrights in

audiovisual works deemed fixed by the content creators,

registering every single stream a publisher wished to monetize or

take down could incur large transaction costs. Consequently, as a

practical matter, they would have far less ability to

control their dissemination.

177

See 17 U.S.C. § 101 (2012). Therefore, if publishers began to, in concert with

hosting the game, permanently store data relating to player movements and gameplay

(such that the audiovisuals could be reproduced) for a particular instance of play, they

could argue that they were effectively simultaneously fixing all instances of gameplay.

Alternatively, they could physically store the audiovisual displays, but this would require

a lot of storage.

178

Assuming the player contribution does not amount to authorship, the rights could

vest in the publisher under the theory that the publisher-author is implicitly authorizing

the fixation of the gameplay. See id. (providing that a work must be sufficiently fixed “by

or under the authority of the author” for the fixation to qualify the work for copyright

eligibility (emphasis added)).

179

See id. § 411(a) (“[N]o civil action for infringement of the copyright in any [U.S.]

work shall be instituted until preregistration or registration of the copyright claim has

been made in accordance with this title.”).

180

See, e.g., Schneck v. Orosz, No. 3:13-CV-0294, 2013 WL 5963557, at *10 (M.D.

Tenn. Nov. 7, 2013) (“Under the circumstances presented, and in the absence of a

persuasive alternative construction of the DMCA and [section] 411(a), the court finds

that the DMCA does not displace [section] 411(a)’s registration requirement or the

registration approach.”).

2018] LET'S PLAY 415

B. Derivative Works

While fixation is ultimately resolved when the content creator

uploads a stream, what if publishers failed to maintain

copyrightability under the other two theories—i.e., authorship or

idea/expression dichotomy? In that case, publishers would likely

still seek to continue control of these markets by arguing that these

streams constitute derivative works.

181

In narrowing the

“overbroad” language of the statute, the Ninth Circuit held that “in

order to qualify as a derivative work,” a work “must exist in a

‘concrete or permanent form,’” and “must substantially incorporate

protected material from the preexisting work.”

182

There is

disagreement over whether this requirement is actually

necessary,

183

but the Ninth Circuit’s analysis is the more stringent

one, and is therefore, important for publishers to consider when

looking to maintain control under a derivative work theory. While

the streams contain none of the literal, copyrighted code

underlying the game, they are still made up mostly of the discrete

copyrightable audiovisual elements.

184

Because it is likely these

181

According to the Copyright Act:

A “derivative work” is a work based upon one or more preexisting

works, such as a translation, musical arrangement, dramatization,

fictionalization, motion picture version, sound recording, art

reproduction, abridgment, condensation, or any other form in which a

work may be recast, transformed, or adapted. A work consisting of

editorial revisions, annotations, elaborations, or other modifications

which, as a whole, represent an original work of authorship, is a

“derivative work.”

17 U.S.C. § 101. Further, under section 106(2), the right to prepare derivative works is

one of the exclusive rights enjoyed by a copyright holder. See id. § 106(2). Such an

argument, however, similarly presents the issues addressed in Section III.A regarding

registration. Nonetheless, if the theory is that the gameplay is a derivative work of the

underlying, registered code, then there is no registration issue. Alternatively, publishers

could still selectively register and enforce the copyrights of the derivative works.

182

Micro Star v. FormGen Inc., 154 F.3d 1107, 1110 (9th Cir. 1998) (quoting Lewis

Galoob Toys, Inc. v. Nintendo of Am., Inc., 964 F.2d 965, 967 (9th Cir. 1992)).

183

See, e.g., The Family Movie Act of 2004: Hearing on H.R. 4586 Before the

Subcomm. on Courts, the Internet, and Intellectual Prop. of the H. Comm. on the

Judiciary, 108th Cong. 14 (statement of Marybeth Peters, Register of Copyrights, U.S.

derivative work right in cases where there is a derivative public performance.”).

184

See, e.g., jackfrags, BATTLEFIELD 1 ASSAULT GAMEPLAY - Insane Graphics!,

OUTUBE (June 13, 2016), https://www.youtube.com/watch?v=X8UB9LVhh6A

416 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXVII:381

streams substantially incorporate protected material from the

preexisting work, the question of permanence of the derivative

work is the more interesting one.

Lewis Galoob Toys, Inc. v. Nintendo of America, Inc. originally

articulated this question of permanence. The Ninth Circuit found

that the augmented audiovisual displays arising from a hardware

kit that sped up a video game system’s gameplay were not

sufficiently concrete or permanent to qualify as a derivative

work.

185

In contrast, uploaded video streams of gameplay are more

clearly concrete and permanent. Less clear, however, is how

concrete and permanent courts would view a live stream.

186

If courts were to look to the fixation element of section

102(a)

187

to determine the permanence of a potentially infringing

derivative work—as the Ninth Circuit has when applying a fixation

element to directly infringing copies

188

—a transmission with

simultaneous fixation would certainly be concrete and permanent

enough to qualify as a derivative work, assuming it substantially

incorporates protected material.

189

Without simultaneous fixation

of the transmission, live streaming may be too “transitory” in

nature to incorporate the original work in enough of a “concrete or

permanent” form to qualify as a derivative work if it only exists in

a series of computer buffers.

190

Because public performance and

derivative works are separate rights within section 106, it is not

entirely clear if this unfixed public performance derived from the

original work would be infringing.

191

Due to the explicit lack of a

“fixation” requirement for derivative works, it is likely that courts

would be unwilling to extend the judicially created “concrete or

permanent form” requirement so far as to permit unauthorized

(displaying the artfully created map as well as other, discrete, expressive elements that

comprise an instance of gameplay).

185

Lewis Galoob Toys, Inc. v. Nintendo of Am., Inc., 964 F.2d 965, 969

(9th Cir. 1992).

186

See supra note 178 and accompanying text.

187

See 17 U.S.C. § 102(a) (2012).

188

See, e.g., MAI Sys. Corp. v. Peak Comput., Inc., 991 F.2d 511, 518 (9th Cir. 1993).

189

See supra note 161 and accompanying text.

190

See Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 129–30

(2d Cir. 2008).

191

See 17 U.S.C. § 106.

2018] LET'S PLAY 417

public performances of a work that, while unfixed, substantially

incorporates protected material.

192

Moreover, any argument

attempting to argue that these derivative works are implicitly

authorized is easily rendered moot by noting the ToSs often

explicitly preclude the content creators from having any control

over uses of the output of the game.

193

IV. POLICY CONSIDERATIONS

One driving factor behind the Ninth Circuit’s holding in

Galoob was that “technology often advances by improvement

rather than replacement,” noting that the alleged derivative work

does not supplant demand for the preexisting work.

194

Much debate

in copyright law, as with all areas of intellectual property, centers

on the competing utilitarian concerns of promoting creativity,

while at the same time not unduly impinging the ability of others to

build upon this creativity. Such considerations will likely be at the

center of any discussions involving the downstream rights of video

game audiovisual displays. Specifically, policy implications may

be important because, while there is a concern of under-

incentivizing creativity by precluding publishers’ rights in

unforeseen or downstream uses of their works, it does not

necessarily follow that the mere existence of these markets

automatically allows rights to vest in the publisher.

195

It becomes necessary, therefore, to weigh these competing

concerns. On one hand, publisher control over these downstream

uses of video games may not just benefit the game creators, but

may also have positive externalities for the end-users as well. For

example, perhaps in part due to the ability for publishers to control

192

See generally Tyler T. Ochoa, Copyright, Derivative Works and Fixation: Is Galoob

a Mirage, or Does the Form (GEN) of the Alleged Derivative Work Matter?, 20 S

ANTA

CLARA COMPUTER & HIGH TECH L.J. 991 (2004) (discussing contradictions inherent in

the question of whether derivative works must be fixed to be infringing).

193

See League of Legends Terms of Use, supra note 64.

194

Lewis Galoob Toys, Inc. v. Nintendo of Am., Inc., 964 F.2d 965, 969

(9th Cir. 1992).

195

See Int’l News Serv. v. Associated Press, 248 U.S. 215, 246 (1918) (Holmes, J.,

dissenting) (“Property, a creation of law, does not arise from value, although

exchangeable—a matter of fact.”).

418 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXVII:381

their ecosystems and profit from a game after the initial sale, a

tremendous rise in free-to-play games has emerged.

196

Many

popular games such as Dota 2, LoL, and Hearthstone, are

distributed free of charge,

197

which is probably a utility that would

not exist if publishers were unable to capitalize on these

downstream uses. This is likely why publishers and gamers enjoy a

symbiotic relationship—at least with regards to many of the games

discussed in this Article. Moreover, with video games and

uploaded gameplay, there is less concern over lock-in effects than

there is with the audiovisuals of more utilitarian software—such as

the user interface of a word processor.

198

Conversely, the primary impetus for copyright law in the first

place is to promote creativity and progress.

199

Overprotection of

audiovisual displays may run afoul of these utilitarian purposes.

Further buttressing this concern, there is a related policy argument

that could be instrumental in shaping the landscape of video game

streaming. The pervasive use of contracts of adhesion to contract

away fair use—to the extent that these clauses will not be

preempted by federal copyright law—could lead to an

impingement of uses that are fair yet still violate a clause in a

contract of adhesion.

200

Therefore, greater concerns regarding

preempting the contracting away of fair uses generally, not just in

the context of video games, may lead to a shift favoring

content creators.

CONCLUSION

Given the recent developments in video game consumption,

ripe for revisiting. If courts were to apply precedent from litigation

in the 1980s to video games as they exist today, the idea that

196

See Eva-Maria Scholz, Business Models for Digital Goods: Video Games (Free-to-

Play Games), IP

DIGIT (Mar. 18, 2015), http://www.ipdigit.eu/2015/03/business-models-

for-digital-goods-video-games-free-to-play-games/ [https://perma.cc/REQ2-X365].

197

See id.

198

See supra note 27 and accompanying text.

199

See U.S. CONST. art. I, § 8, cl. 8.

200

See supra Section II.A.

2018] LET'S PLAY 419

audiovisual displays generated by a game may not hold true. The

strongest argument potential defendants have is that their

interaction with the game precludes copyrightability for the

audiovisual displays due to a lack of “original authorship” on the

part of the publishers. Moreover, defendants could also argue that

games are uncopyrightable systems. However, it is likely that the

audiovisuals created by publishers constitute enough expression

beyond the underlying system to defeat this argument.

Nonetheless, potential defendants would further note that, given

their complexity today and their dispersed nature in light of the

internet, video games are not sufficiently fixed to allow for

notwithstanding registration issues, the individual instances of

gameplay are sufficiently fixed in video-on-demand, and could be

simultaneously fixed with regard to live streaming.

201

If either of the latter two theories work in favor of potential

defendants—meaning the copyright does not attach to audiovisuals

at the outset—then there is additionally the issue of registration for

those later-fixed audiovisual displays, which is necessary for the

use of DMCA takedowns. Nonetheless, publishers could still have

considerable control through a derivative work theory. Ultimately,

because potential defendants in this case often contract away their

fair use rights, publishers will likely retain a significant amount of

control over most types of games under current precedent. The

authorship/originality argument is the most capable, at the

moment, of disrupting this status quo.

201

See supra note 178 and accompanying text.