Cynthia Zhang is a 3L JD Candidate at Osgoode Hall Law School.

Recently in , a jury of the US District Court of the Southern District of Illinois that tattoo artist Catherine Alexander has a valid copyright claim in the designs she tattooed on World Wrestling Entertainment Inc. megastar Randy Orton. Orton’s likeness was licensed through defendant WWE to defendant Take-Two Interactive Software, a video game publisher. Since 2005, Take-Two has owned the that produces the popular WWE 2K series of pro wrestling sports simulation video games. Interestingly, the jury only awarded plaintiff Alexander $3750 USD in damages. This is a far cry from the revenues earned on the WWE 2K games, which have sold . This development has led legal commentators to observe that, unfortunately, the copyright law surrounding celebrity tattoos .

Copyright protection over tattoos has been a hot topic for some time. IPilogue writers have previously discussed the Kat Von D and the NBA 2K , the latter having also featured Take-Two as defendant. Some tattoo artists may see copyright protection and the ability to raise an infringement claim as a just outcome or a validation of their art. However, numerous considerations give pause for thought when it comes to copyright and tattoos.

An oft-deliberated concern is that the medium of tattoos is a human body. This discussion raises questions of personal agency and asks how an artist can have ownership over their client’s body, even though it’s how their work is physically fixed. Another important factor that’s less often discussed is how increasing copyright protection will affect the tattoo industry itself. Tattoo artists currently benefit greatly from lax copyright enforcement – popular subject matter for tattoos includes famous artworks, celebrity portraits, and quotes from books and movies. As seen in the Kat Von D case, treating tattoos identically to other artworks can open the door for claims in the opposite direction as well. Furthermore, many popular tattoo designs are very similar to one another and can be virtually indistinguishable from one artist’s execution to the next. Take Orton’s tattoos that were the subject of debate in the Alexander case, for example. They were as “tribal tattoos, skulls, a bible verse, and a dove and rose”. All these elements have been common building blocks of tattooing since the early days of the industry. Their combined application on Orton’s body may be technically unique but is certainly not groundbreaking. Indeed, copyright vests in any original work – but are these common types of tattoos original enough?

If copyright protection of tattoos becomes more rigorous, celebrities will likely circumvent the issue by always demanding a contractual assignment of rights before getting tattooed. The tattoo process could follow the model of other commissioned work, such as logo design. For now, the law is still hazy. Alexander has shown that even a successful claim of infringement in such cases may not be worth the effort for a tattoo artist.

The post Still No “RKO” for Copyright Law After US Court’s Damage Award in Randy Orton Tattoo Dispute appeared first on IPOsgoode.

Cynthia Zhang is an IP Intensive Student and a 3L JD Candidate at Osgoode Hall Law School.

American gaming company Wizards of the Coast (“WOTC”), a subsidiary of Hasbro, is perhaps best known for publishing Dungeons & Dragons {“D&D”), the tabletop role-playing game that has brought barbarians, beholders and basilisks to life for nearly five decades. Of course, D&D isn’t the only property that WOTC has acquired since its inception. Recently, the company has been over Star Frontiers: New Genesis, a proposed reimagining of a sci-fi tabletop RPG originally published in the 1980s. After a test copy of New Genesis was leaked online, WOTC took issue with development company TSR LLC’s use of their IP rights in the game. This is an interesting example of how intellectual property law can be utilized to smother the proliferation of harmful views. The context surrounding the litigation shows that protecting business interests is not trademark law’s sole function.��

Gaming enthusiasts were disturbed by the leaked game’s . The disclosure of this content follows an established record of publicly expressed homophobic, transphobic and racist views from the owners of TSR LLC.��

In light of this controversy, WOTC has filed a against TSR LLC to prevent publication and distribution of New Genesis. The company argues that since the game uses trademarks belonging to it, having WOTC associated with such “reprehensible content” will damage WOTC’s reputation, goodwill, and undermine the cause of embracing diversity in fantasy gaming. This motion represents the latest development in the greater claim and counterclaim between the two companies which was initiated in .��

TSR LLC’s position is that they are entitled to own and use both the word marks “TSR” (the name of the original company that published the first iteration of D&D) and “Star Frontiers”, since WOTC allowed registration in these marks to lapse in the 2000s. For its part, WOTC claims that it retains common law interest in these marks, on the basis that it has continued to use the marks since at least 2012. Since then, WOTC has licensed the marks to another company which sells older editions of both D&D and the original Star Frontiers. In its injunction motion, WOTC considers criteria based on the under US law. WOTC asserts that TSR LLC cannot register the marks in question because of factors such as proximity of goods, similarity of the marks, marketing channel convergence, and ultimately, consumer confusion.

In support of its injunction request, WOTC claims that it will suffer irreparable harm if New Genesis is released. WOTC states that it has built up significant goodwill in the marks at issue, which will be negatively affected by being associated with the views expressed in New Genesis. Moreover, WOTC notes that it has taken efforts to in its products, a directive which is squarely at odds with the apparent sentiments of TSR LLC.��

Compared to other practice areas, trademark law is often seen as purely a business mechanism. Because of how it functions, it can be easy to conclude that trademark law isn’t directly relevant to the cause of justice or societal progress. However, a proceeding like that between WOTC and TSR LLC can suggest otherwise. Forwarding more abstract values can indeed be accomplished through trademark law as well, and it doesn’t take a wizard or a warrior to do so. We will be following the outcome of this dispute as litigation continues.

The post Roll for Initiative! How Wizards of the Coast’s trademark dispute is helping to keep the nasties out of tabletop gaming appeared first on IPOsgoode.

Photo by Jaroslav Nymburský ()

Meena Alnajar is an��IPilogue��Writer, IP Innovation Clinic Fellow,��and a 2L JD Candidate at��Osgoode��Hall Law School

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Although many aspects of life have become virtual, video games have always been virtual and well-loved. Behind every video game, there is a video game designer. And behind every designer, there is a publisher.

As of January 31, 2022, Sony Interactive Entertainment (“Sony”) is behind the video game publisher Bungie. Sony the independent Washington-based publisher for USD. Sony is no stranger to the video game industry, having created the world-renowned . However, Sony’s acquisition raises questions regarding the state of Bungie’s existing games, what freedoms Bungie has in terms of video game creation, and how the acquisition affects video game competition.

An is when one company purchases most or all of another company’s shares to gain control of that company. Unlike a takeover, acquisitions are as both parties tend to agree to the terms of the acquisition for the purchase to proceed. Acquisitions may occur where a company prefers to purchase another company’s successful , rather than spend developing similar products.

In Sony’s case, it is likely more cost-efficient to purchase Bungie and gain some ownership over its future games than to create games itself for its PlayStation consoles. After all, Bungie has created such as Halo and Destiny. While Sony’s gains in this acquisition are clear, will Bungie lose recognition for its games in the future?

According to The Verge, Bungie will maintain within Sony, self-publishing games while still fully owned by Sony. The ownership raises questions regarding Bungie’s intellectual property rights. Rather than giving Sony exclusivity over its games, Bungie has committed to s available on both Microsoft-owned Xbox and Sony consoles.

A video game is full of potential intellectual property interests. The can all fall under this protection. Further details regarding Bungie and Sony’s intellectual property agreements have yet to be divulged. Typically, there is a push-pull in a merger involving video games. The buyer in the acquisition should of the acquired company’s assets (including their intellectual property) and attempt to acquire as many rights as possible. On the other side, the seller should as much of their intellectual property with the government as possible, to ensure the seller commits to licensing agreements prior to the acquisition’s completion. These considerations can help balance each party’s gains and losses in large acquisitions.

Sony’s acquisition follows a trend in big video game purchases. On , Sony’s competitor Microsoft purchased Activision Blizzard in a . Once this deal closes in 2023, Microsoft will have internal game development studios. As these acquisitions effectively reduce the number of independent video game developers, could this be an issue for competition? U.S. competition regulators are Microsoft’s acquisition to determine if it will allow Microsoft to unfairly dominate the video game market and wipe out competitors. While acquisitions can be fruitful for some, there are intellectual property and anti-trust considerations that can make these deals a losing game for independent video game developers.

The post Video Game Monopoly is Not as Fun as it Sounds: Sony Acquires Bungie, but What Will Happen to the Games? appeared first on IPOsgoode.

Photo by Yrrah2 ()

Emily Xiang is an is an IPilogue Writer, President of the Intellectual Property Society of Osgoode (IPSO), and a 2L JD Candidate at Osgoode Hall Law School.

There is no question that the virtual gaming and e-sports industry has seen exponential growth in the last decade or so. In 2021, global e-sports revenue is said to have reached a whopping USD, and is projected to increase to $1.6 billion USD by 2024. Moreover, there are currently about who are said to be following e-sports worldwide, with that number expecting to climb to 577 million in the next few years.

Part of what makes the question of intellectual property in e-sports so unique is the myriad of overlapping rights that exist, being held by a including game designers, sound engineers, programmers, user interface developers, the players themselves, broadcasters, event/league organizers, advertisers, sponsors, and even spectator fans. But among these actors, whose rights can really be enforced? E-sport tournaments are an amalgamation of various intellectual contributions from a variety of actors. This is in stark contrast to traditional sporting events—after all, it cannot be said that !

It is accepted that the copyright (or the to the source code, maps, sound effects, and characters of a game is . As a result of the considerable power held by video game publishers in the e-sports industry, the associated IP regime is often considered as having a , in which a few actors own all the IP. Game publishers can decide what teams/players may compete, who may host tournaments, and how tournaments are advertised and broadcasted.

However, much of this power is effectuated through end-user license agreements or applicable terms of service with individuals and tournament organizers. Moreover, these rights can then be further assigned to others through contractual means. For instance, in 2015, a Twitch streaming channel named , another video game streaming service. SpectateFaker had broadcasted games played by popular e-sports player Lee Sang-hyeok. Azubu, having contractually obtained the exclusive streaming rights for Sang-hyeok’s games, filed a complaint against Twitch alleging copyright infringement. Interestingly, Riot Games—the publisher who owned the copyright to the game—was not involved in the dispute at the time. The matter never ended up being litigated.

Other disputes have arisen involving video game copyrights, though none such matters have yet to meaningfully challenge the status quo of the “top-heavy” e-sports regime in the courtroom. For instance, in the late 2000s, , including from Korea e-Sports Association (KeSPA). After years of failed negotiations, Blizzard decided to license the exclusive right to broadcast its game StarCraft to another South Korean organization and brought lawsuits against KeSPA.

The matter was ultimately settled outside of court, but it calls into question whether any other actors in the e-sports industry can assert some kind of right to their content. For example, can players enforce some kind of copyright or performer’s right in their gameplay? Many argue that mere gameplay or one’s “style of playing” is comprised of , that it , or that it is to be protected by copyright. That being said, it may also be argued that skilled gamers employ the use of considerably nuanced , which ultimately dictate how the game will go.

The gaps and barriers between IP and e-sports certainly will stop at copyright protection. As the industry continues to grow, we can expect to see more IP-related disputes, including ones involving for things like game titles, gamer tags, team brands and merchandise, or even popular characters, as well as protecting gaming consoles, software programs, and user interfaces. Several gaming patents have already been filed, such as U.S. Patent No. 8,882,576, or , which denotes an algorithm that evaluates the proportionate dependence of an outcome on skill versus chance. And while traditional sports and entertainment industries have long been regulated by established rules and best practices, Canada in particular has (as stated by Erika Carrasco, partner and chair of Field Law’s Emerging Technologies Group). Having a robust IP strategy in place for such a rapidly developing industry with enormous economic prospects makes the most sense.

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This leads to the assumption that streaming is a safe legal activity. Instead, most streamers are in a [iii] through the public performance of a copyright protected work. While this can be rather surprising to the public who would expect that activities that are likely illegal would not develop into a growing mainstream business, the tolerance of infringing content by the game publishers is logical in this instance from a business standpoint as streaming is free advertising that could help grow the game.

A potential issue for the future of streaming, however, is the European Copyright Directive. A throughout the process of drafting was Article 13[v] which critics have held will lead to the censoring of the internet.

Article 13 has since been passed as and is concerned with the sharing of protected content online by service providers.[vi] Article 17 moves away from the framework provided by the DMCA and its safe harbour provisions. Instead, it changes the landscape for service providers or content hosts by explicitly choosing to hold them liable. Online services that distribute content must obtain a licence from a rights holder. Beyond this requirement, require online content providers to make best efforts to prevent copyright protected work to be uploaded, or reuploaded in the future.[viii]

So, the main question at issue here will be enforcement. If enforcement will be done on a discretionary basis requiring a complaint to be made than the streaming industry can persist barring future issues. to take down streams in Europe support the position that takedowns will occur on a complaints basis. [ix] Especially as some of the takedowns which are on done on a copyright basis have been filed for reasons outside of the purely economic sense of copyright law but out of disgust for certain streamers behaviours while playing games such as.[x] It is inevitable for some rights holder to take issue with some streamer or any of the individual streams in the future.

Even if complaints are made, it is possible for the state of affairs to continue as they are as the text of ) states that the rights holders have to have “provided the service providers with the relevant and necessary information” before content can be blocked as infringing.[xi] If no details are provided, it is possible that no requirement to block the stream or other content need take place.

If, however, the European Union or one of its member states take a more proactive approach to ensuring services operating within it are compliant, as they are staring to do with,[xii] streaming services such as Twitch could become more limited in scope and functionally become a live game streaming version of Netflix or be blocked in Europe altogether.

Written by Matthew Drinovac, Osgoode JD Candidate, enrolled in Professors D’Agostino and Vaver 2019/2020 IP & Technology Law Intensive Program at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.

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[i] Leo Sun, “Microsoft’s Mixer is Catching up to Amazon’s Twitch and Google’s YouTube” (6 October 2019), online: <https://www.fool.com/investing/2019/10/09/microsofts-mixer-is-catching-up-to-amazons-twitch.aspx>.

[ii] Chris Bumbaca, “16-year-old Kyle ‘Bugha’ Giersdorf takes home prize for Fortnight World Cup win” (28 July 2019), online: <https://www.usatoday.com/story/sports/gaming/2019/07/28/fortnite-kyle-bugha-giersdorf-wins-3-million-world-cup/1853058001/>.

[iii] Scott Alan Burroughs, “A Twitch In Time” (5 September 2018), online: <https://abovethelaw.com/2018/09/a-twitch-in-time-legal-issues-catch-up-with-popular-game-broadcasting-platform/>.

[iv] Julia Alexander, “YouTube CEO says EU regulation will be bad for creators” (22 October 2018), online: <https://www.theverge.com/2018/10/22/18008406/article-13-copyright-directive-youtube-susan-wojcicki-robert-kyncl>

[v] Cory Doctorow, The Final Version of the EU’s Copyright Directive is the Worst One Yet” (13 February 2019), online: <https://www.eff.org/deeplinks/2019/02/final-version-eus-copyright-directive-worst-one-yet>.

[vi] European Union Directive 2019/790, online: <https://eur-lex.europa.eu/eli/dir/2019/790/oj>.

[vii] Digital Media Law Project, “Protecting Yourself Against Copyright Claims Based on User Content” (2014), online: <http://www.dmlp.org/legal-guide/protecting-yourself-against-copyright-claims-based-user-content>.

[viii] European Union Directive 2019/790, online: <https://eur-lex.europa.eu/eli/dir/2019/790/oj>.

[ix] Raj Shah, “Twitch Bans Several�� Accounts for Unauthorized CSGO Berlin Major Streaming” (27 August 2019), online: <https://www.talkesport.com/news/twitch-bans-several-accounts-for-unauthorized-csgo-berlin-major-streaming/>.

[x] Owen Good, “Firewatch creator vows DMCA retaliation against PewDiePie for racist slur used in stream” (10 September 2017), online: <https://www.polygon.com/2017/9/10/16285188/pewdie-pie-racist-slur-firewatch-retaliation-dmca>.

[xi] European Union Directive 2019/790, online: <https://eur-lex.europa.eu/eli/dir/2019/790/oj>.

[xii] Victoria Arnold, “What the latest GDPR fines reveal about authorities’ attitude” (30 September 2019), online: <https://www.lexology.com/library/detail.aspx?g=a4054dd5-3215-4f69-bf13-3f2858600ad1>.

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As previously mentioned, esports share many of the common elements found in traditional sports. There are professional leagues, teams, sponsorships, media deals, agents, and fans. However, unlike traditional sports, esports differ most significantly in the proprietary nature of the activity. Major League Baseball does not own baseball, the National Hockey League does not own hockey, the National Basketball Association does not own basketball, but in the Overwatch League (OWL), someone does own Overwatch. Overwatch is, therefore, eligible for copyright protection as an audiovisual work. In Canada, the does not identify video games as a specific category of work. However, the courts have recognized  video games to be protected by copyright, both as a whole and in its individual elements such as the soundtrack, voice acting, character design, and level design. For the most part, the owner of the copyright in a video game is the game’s producer.

Similarly to most copyright owners, game producers assert their exclusive rights by controlling reproductions, distributions, public performances, and creations of derivative works that involve or stem from their copyright-protected work. In esports, these exclusive rights provide game producers with significant power over the direction of the industry. Game producers possess the ability to dictate not only the use of their games in tournaments, but also the way the tournaments will function, and even who can participate in the tournaments. Game company Activision Blizzard’s recent decision to switch from a merit-based league to a franchised league for its game Call of Duty is one recent example of a producer exercising this control. This decision was ultimately met with criticism after the iconic Call of Duty World League (CWL) team backed out of the estimated $25 million franchise fee required to join the new franchise league. Their decision effectively concluded their participation in the game Call of Duty for the time being.

Given that tournament organizers, teams, players, broadcasters, spectators, and advertisers all rely on access to a publisher’s IP to participate in esports markets, there is a concern that a publisher’s behaviour could constitute anticompetitive IP exploitation. As one , a game publisher’s IP in a game effectively grants them a permissible monopoly, and publishers will rationally seek to minimize competitive pressure from other entities in the market through vertical integration of the downstream market. However, the issue of whether a single videogame could constitute a relevant market under competition law is unclear. Currently, there are many different esports leagues, numerous publishers, and countless current and emerging games, as opposed to just a single league with monopoly power. Moreover, it would be difficult for any would-be plaintiff to demonstrate that a publisher’s actions were anything not otherwise already afforded to them through federal IP protection. While it’s unlikely there would be any clear violations of competition law, those within the esports industry need to be cognizant of these issues, particularly in an era in which publishers are demanding franchise fees in the tens of millions of dollars for games yet to be released.

While publishers will often flex their IP muscle at the expense of tournament organizers, leagues, teams, advertisers, and broadcasters, there is one particular area where publishers typically turn a blind eye – streaming. When a user purchases a game, what they are buying, in addition to the physical copy, is a copyright licence to make use of the game subject to certain terms and conditions. Generally, streamers receive a “carte blanche” from publishers when it comes to streaming on services such as YouTube and Twitch because it makes commercial sense given the promotional value that streamers provide to the game.

The recent launch of the game Apex Legends is a testament to the influence that streamers have on the industry. Much of the game’s early success can be attributed to clever marketing on behalf of the publisher. s indicate that the game’s publisher, Electronic Arts Inc (EA), paid a number of streamers, including a reported $1 million to top streamer Tyler (Ninja) Blevins, to play the game for the week. The game was an instant success, the game generated over 25 million players, with nearly 64 million hours of live viewership on the streaming site Twitch. All this success occurred even though the game was not announced to the public until a day before it was actually released!

While the gaming community is certainly capable of giving a game life, it also possesses the power to take it away. In 2017, fans organized a of EA’s Star Wars Battlefront II to protest the game’s unfair use of “”. As a consequence of the boycott, EA failed to meet sales targets by roughly one million copies, their stock price fell, and their reputation was permanently damaged. Needless to say, the gaming community plays a significant role in this emerging industry, acting as a type of de-facto regulator in a mostly unregulated industry. 

From an outsider’s perspective, there often appears to be unbridled control on the part of game producers in the esports industry. Still, it should not be forgotten that a game’s real success depends on its reception in the gaming community. If a game producer chooses to deploy exploitative IP strategies, copystrike its players, or engage in manipulative profit-maximization, the community will be aware, and a game publisher will suffer.

Written by Alexandre Dumais, IPilogue Editor and JD Candidate at Osgoode Hall Law School. Alexandre is also the Director of Sports, Osgoode Entertainment and Sports Law Association.

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Fortnite, the video game that has been taking the world by storm over the last year and a half, is set to take centre stage at New 91��ɫ’s Arthur Ashe Stadium from July 26-28 in what will be the largest video game tournament in the world to date. Up for grabs? A chance at a share of the $30 million prize pool, with the winner of the solo match receiving $3 million. The inaugural Fortnite World Cup not only boasts the largest prize pool in esports so far, but it is also one of the largest prize pools throughout all individual sports. Comparatively, the was the most lucrative tournament on the PGA this season with the winner Gary Woodland taking home $2.25 million. Tennis’ recent featured the winners of the men’s and women’s singles earning just under $3 million.

Since the release of its battle royale format over a year and a half ago, Fortnite has become a cultural juggernaut. In less than a year after its launch, the game had 125 million registered users, and a few months later that number doubled. The game also blew past the competition in viewership hours on the streaming service Twitch, reaching , compared to runner-up League of Legends at 862.7 million hours watched. It is estimated that the game’s creator, Epic Games, grossed $3 billion in profits in 2018, leading to a $15 billion valuation. 

Fortnite has quickly developed into one of the most popular video games in the world, but it is only a small part of the rapidly growing industry of esports. Esports describes the world of competitive video gaming and has come a long way since groups of friends hosted LAN parties playing Halo 2 in their parents’ basements into late hours of the night. Following the basic structure of traditional sports, the world of esports includes leagues, teams, sponsorships, media deals, and increasingly, money. Games range from first-person shooter games like Call of Duty or Overwatch to multiplayer online battle arena games like League of Legends or DOTA 2. There are even leagues for mobile games such as Clash Royale and Mobile Legends.

With revenues set to in 2019, exceeding $100 million, and players , esports is now big business. Notable celebrities like Drake, Steph Curry and Michael Jordan have all . Traditional sports team owners such as Dallas Cowboy owner Jerry Jones and New England Patriot owner Robert Kraft have . Bell, a Canadian telecommunications company, with Toronto-based OverActive Media Group. Founded in 2017, Overactive Media has quickly developed into an industry-leading esports organization, and the world’s only esports organization to own teams in the three biggest franchised leagues – Overwatch League, League of Legends European Championship, and Call of Duty League.

Currently, sponsorship and advertising make up the largest source of revenue in esports, this year, and non-endemic brands are beginning to play an important role. Brands like Sephora, Nike, and Hershey’s are all entering into the game because they see the opportunity to reach a new demographic of passionate and loyal consumers. In May, Puma announced a , an esports organization, estimated to be worth at least eight figures. In traditional sports, athletic program, one of the largest in college sports, runs an average annual value of over $11 million. Other ways in which brands are entering the esports space is through the sponsoring of tournaments, leagues, and players.

Other companies are going a step further and attempting to maximize their brand outreach by acquiring trademarks. In June, the world’s largest brewer, Anheuser-Busch InBev, filed for trademark protection of “” with the US Patent and Trademark Office. Meanwhile, trading card company Upper Deck will also be looking to move into the esports space after they filed for trademark protection of “” in early July.

Accompanying esports’ shift from niche to mainstream is also a new set of legal issues, in particular, issues relating to intellectual property. Intellectual property lies at the core of esports, from the software and hardware upon which the games are built and played to the content created by leagues, players, and streamers while playing the game. As such, the rest of this series will explore the various ways intellectual property is affecting esports.

Written by Alexandre Dumais, IPilogue Editor and JD Candidate at Osgoode Hall Law School. Alexandre is also the Director of Sports, Osgoode Entertainment and Sports Law Association.

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This leaves authors of works which do not qualify for these categories to seek out alternative methods of enforcing their moral rights, such as through the use of contracts and state laws. [3] An indie video game studio has recently opted to use the Digital Rights Millennium Act (“DMCA”) to champion their moral rights claim. [4]

“Let’s Play” videos involve people prerecording or livestreaming themselves playing video games so that audiences can experience their reactions and commentary as they play. The occupation is both popular and highly lucrative, with its most popular streamer, Felix Kjellberg (known as “PewDiePie”), having over 57 million subscribers.[5] The videos are generally hosted on YouTube or Twitch.tv, a live-game streaming site, and can include hours of video game content being shown online. Sometimes this can feature the experience of playing an entire video game from beginning to end. It is not hard to imagine that if this same act was replicated on other forms of entertainment media—for example, the streaming of an entire movie with commentary—then it would quickly fall victim to a DMCA takedown. But video games have never operated the same way as movies or music.

There is a tacit understanding between Let’s Play video makers and video game developers; the owners of the copyrighted work ignore the potential infringement of their copyright in turn for the free publicity that the videos generate for their games. Camp Santo, for example, loved that “people stream and share their experiences in the game.” [6] They loved it, that is, until they requested a DMCA takedown for a video of PewDiePie playing their video game, Firewatch.

DMCA allows holders of intellectual property to request takedowns from service providers. [7] It is the hated, red-headed stepchild of the internet, especially in the gaming community,�� where�� it ��is�� seen�� as�� a ��mechanism�� for�� blocking ��out�� competition�� and ��censoring��criticism.[8] Camp Santo wasn’t attempting to curtail a negative review. They simply did not want their game featured on PewDiePie’s channel. Their problem with PewDiePie? His casual use of Nazi jokes and racial slurs.

A little while ago, the YouTuber paid Indian actors to hold up signs that read “Death to All the Jews”. The stunt cost him his partnership with Disney’s Maker Studio, YouTube and Google’s Preferred ads. [9] He followed that up with the use of the n-word in another one of his live-stream videos. Neither one of these offending videos featured Camp Santo’s work. Nevertheless, Camp Santo did not want their brand and their work associated with PewDiePie. Camp Santo believed that by allowing their content to be featured on PewDiePie’s channel they were implying a tacit endorsement of his behavior, thereby tarnishing their reputation. Under the Canadian Copyright Act [10], prejudice to Camp Santo’s reputation, as the author of a work associated with PewDiePie, would constitute infringement of Camp Santo’s moral rights. In the U.S. the ambit of moral rights protection is limited to selected works which do not include video games. Google, YouTube and Disney had partnerships they could terminate, and contracts they could fall back on. Camp Santo had only the DMCA to dissociate their work from PewDiePie.

The DMCA is not a panacea to moral rights problems for works existing online. A major problem with using DMCA is the issue of the fair use exception US law. [11] Let’s Play video makers insist that their commentary makes their work a product of fair use. Since the matter has never been taken to Court, it is an undetermined area of law. Here, once Camp Santo requested the takedown, PewDiePie removed the video and it was later deleted by Google. Therefore, it remains to be seen whether this novel way of protecting moral rights may have any further use in the realm of video games.

Tina Mirzaei��is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

[1] 17 USC § 106A.

[2] 17 USC § 101.

[3] Greg J Yonover, “The Precarious Balance: Moral Rights, Parody and Fair Use” (1996) 14:79 Cardozo Arts & Entert LJ 79 at 94.

[4] Jonathan Ore. “Is Playing Video Games on YouTube a Copyright Infringement? No One Wants to Find Out”, CBC News (October 7, 2017), online: < 1.4309312>

[5]��Ibid, Note 4.

[6] Kyle Orland, “Firewatch Dev Uses DMCA Against PewDiePie After Streamed Racial Slur”, arsTECHNICA (September ��11, ��2017), ��online:���� ��<https://arstechnica.com/gaming/2017/09/firewatch-dev-uses-dmca-against-

pewdiepie-after-streamed-racial-slur/>

[7] 17 USC § 1201.

[8] Sebastian C Mejia, “Fair Play: Copyright Issues and Fair Use in YouTube’s ‘Let’s Play’ and Video Game Livestreams” (2013) 1 at 5. Online: <>

[9]��Supra, Note 4.

[10] See section 28.2(1) of the Canada Copyright Act RSC 1985, c. C-42.

[11] See 17 USC § 107 and 1201(c)(1).

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Online gambling platforms, however, present a major regulatory problem. Gambling websites are often hosted in countries with lenient gambling regulations. This allows gamblers to skirt local prohibitions like cash gambling on sports events, which is banned in Canada and parts of the United States (US). In the eSports context, online gambling regulation is further complicated by the fact that not all betting sites use real money. Instead, they use in-game decorative items called skins as virtual currency for wagers. This is known as “.”

But if there is no real money involved, is skin gambling technically gambling? The short answer is yes. Although the law on eSports gambling is still being developed, a recent case involving game developer, Valve, and their highly popular game, (CS:GO), illustrates the problems that arise when applying traditional gambling laws to eSports gambling.

What happened with Valve’s CS:GO?

In 2013, ��released the “Arms Deal” Collection, a set of decorative skins that players could apply to their characters and in-game weapons in CS:GO. Many games release limited edition skins that are confined to the game. What made CS:GO skins unique was that they could be sold and traded amongst players outside of the game platform. This allowed players to use their skins like casino chips on third-party eSports gambling websites. A whopping ��were reportedly gambled worldwide in 2016. And what’s more, there were no age checks on any of these sites, which meant that minors could participate freely.

In June 2016, an was reportedly brought against Valve by a US resident, alleging that Valve “knowingly allowed, supported, and/or sponsored illegal gambling.” Later that year, the Washington State Gambling Commission, which operates in the same state as Valve’s headquarters, demanded that Valve stop transferring CS:GO skins outside of the game environment. In response, Valve sent numerous cease-and-desist letters to stop online gambling sites from using their CS:GO skins. Unfortunately, this caused many gambling sites to go underground to avoid detection by Valve and other regulators.

The risks of skin gambling

Gambling is heavily regulated to protect minors and to promote responsible gambling. In Ontario, for example, section 3.8(1) of the requires strict standards for protecting players and their assets. But because skins are not real money, online gambling using these virtual currencies is compared to traditional forms of online gambling. The use of virtual items as wagers also makes it difficult for children and parents to recognize skin gambling as actual gambling.

The role skin gambling plays in facilitating under-aged gambling was recently addressed in the United Kingdom (UK) when Craig Douglas and Dylan Rigby, owners of the gambling site FUTgalaxy, were reportedly�� under the UK Gambling Act. FUTgalaxy held lotteries using in-game items from the soccer games developed by EA Sports. However, their site was unlicensed and, therefore, illegal under UK gambling law. In February 2017, Douglas and Rigby were for promoting FIFA lotteries on their respective YouTube channels and encouraging minors to gamble. The case focused on how the two defendants “” to the use of their gambling site by children.

Are game developers liable?

While there is little question that gambling sites are responsible for facilitating skin gambling, it remains unclear whether game developers are also to blame. For example, in the FUTgalaxy case, only the owners of the gambling site were named in the lawsuit. But both gambling site owners and Valve were named in the CS:GO case.

An important consideration is the developer’s level of involvement. Game developers create skins to enhance a player’s in-game experience, not to create an external gambling market. So in that sense, only third-party gambling sites should be liable for their “” activity. But it has been argued that developers should be in monitoring and preventing the use of their in-game items on gambling sites.

The future of eSports gambling

Unfortunately, the CS:GO case provides little guidance for future eSports gambling cases. It was dismissed from the US District Court for the Western District of Washington and sent to arbitration, as per Valve’s service agreement[1]. However, Valve recently the use of their game data for illegal gambling in another one of their games, .

Many questions have yet to be answered in this emerging area of gaming law. The UK Gambling Commission recently published a following the FUTgalaxy case, where they take a strict stance against skin gambling. The good news is that, as the position paper reports, the video game industry is “committed to working with [the UK Gambling Commission] to prevent customers experiencing gambling-related harm through their platforms.”

Alexandria Chun is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

[1] GG v Valve Corporation, 2017 WL 1210220.

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If you were born in the late 1980s or early 90s or have young children, you have probably encountered a red-cheeked mouse called Pikachu or any of the hundreds of other that exist in the �ʴǰ�é���Dz� media franchise. While the premise of catching colourful creatures is rather straightforward, its simplicity and charm belie its commercial value.

The �ʴǰ�é���Dz� franchise started as a pair of handheld video-games but currently spans 19 television seasons, 20 movies, 10 cinematic shorts, 2 television specials, a 20-year-old trading card game, 27 video games, a multimillion dollar smartphone application, and many other enterprises. So, when considering the substantial amount of success the franchise has had, why might the legitimacy of the �ʴǰ�é���Dz� name not be held in the same esteem as other brands? One possibility is that the youth-oriented nature of the brand casts doubt on its potential; however, with its revenue earnings standing at ��the name and associated characters are well worth protecting.

The Difference a Name Makes

The �ʴǰ�é���Dz� brand can have a substantial impact on the public’s perception and purchasing habits of goods. For example, compare and contrast the success of ��last two mobile gaming applications: ��and . Both games feature location-based, augmented reality gameplay with king of the hill style competition between players. However, there is a drastic difference in the success of the two games. Despite being released two and a half years earlier, ��with only a tenth of ��on the Google Play store. Given the similarities in the core mechanics of gameplay, the fact that both games were developed by the same company (Niantic), and that both use the same map databases on which their augmented reality features work, it seems likely that the main contributor to the difference in public reception of the titles is the �ʴǰ�é���Dz� branding. Thus, when considering the protection of intellectual property rights for even youth oriented products, it is important to consider the full scope of the effects a simple change in name and characters can have on otherwise similar products.

Fandom

The �ʴǰ�é���Dz� universe has experienced a significant amount of growth since its inception, which is partially attributable to the thriving fandom and associated subculture. Having mediums to discuss interests or share themed artwork is��good publicity that compounds the awareness and recognition of the name-brand. While this sense of camaraderie among consumers has helped substantially, sometimes the limits of what is lawful are crossed. ��sought an injunction over the inclusion of two �ʴǰ�é���Dz� characters, Pikachu and Snivy, in promotional material for a �ʴǰ�é���Dz� themed event. At first, it seems like a straightforward case: the defendant did not acquire permission to reproduce the two creatures and the plaintiff wanted their IP rights respected. The peculiarity of this case comes from its context within the tech, fantasy, sci-fi, gaming, art, and internet subculture.

The contested promotional material was for a sold-out, �ʴǰ�é���Dz� themed party at the , a large and well-established gaming convention founded��in 2004 by the authors of . The ��is partly attributable of these types of social events, where like-minded individuals can meet, discuss their interests, and foster recognition for their hobbies. So, when a �ʴǰ�é���Dz� themed party to celebrate the start of PAX is cancelled, there is some damage to the promotion of the subculture itself. That is to say, the people who are using the intellectual property of others unlawfully in a promotional context are often also the��individuals who have indirectly developed the franchise and contributed to its popularity.

To the disappointment of many fans, the �ʴǰ�é���Dz� themed party was cancelled because of the lawsuit. The plaintiff, �ʴǰ�é���Dz� Company International Inc., put forth an initial settlement offer for damages and its attorney fees. In response, the self-representing defendant who organized the party��turned to the �ʴǰ�é���Dz� fandom through crowd-funding to cover the costs of the settlement and successfully raised enough money. However, the defendant, Ramar Larkin Jones, did not respond in time to the offer and published a ��from the �ʴǰ�é���Dz� Company detailing the settlement, which is generally an unwise decision in the normally confidential process of settlement discussions. What the this did achieve for the defendant was substantial community outcry over the lawsuit, with , , , and many other publishers within the subculture expressing dissatisfaction with the �ʴǰ�é���Dz� Company suing one of its own fans. In response to this backlash the �ʴǰ�é���Dz� Company lessened the settlement to a against the defendant’s unlawful reproduction of copyrighted material, who accepted the new resolution.

Moving a Franchise and��its Subculture Forward

Obviously, lawyers��cannot allow the free use of copyright-protected images, like our friend Pikachu, without any restraint. However, by being overly inflexible about the use of any character with a vague likeliness to a �ʴǰ�é���Dz� the brand itself may be damaged. Consider Maroon 5’s latest music video for their song , which features a star-studded cast of celebrities, including Ed Helms, Sarah Silverman, Vince Vaughn, and Shaquille O’Neal, being chased by throngs of people looking to “catch” them on their smart phones in a manner similar to �ʴǰ�é���Dz� Go’s mechanics. There is a strong resemblance in the video between certain costumes and �ʴǰ�é���Dz� characters, with front-man Adam Levine’s costume appearing to be based on the Squirtle �ʴǰ�é���Dz�. Yet the homage paid by Maroon 5 is likely to be of great benefit to the �ʴǰ�é���Dz� brand due to the association with a . This becomes��especially important when considering that the widely popular �ʴǰ�é���Dz� Go game has lost . Ultimately, the protection of IP rights for a franchise must be a careful balancing act that does not preclude the possibility of growth through fandom, since��the fans are the same people��who are responsible for the brand’s success.

Dominic Cerilli is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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