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Natalie Bravo is anĚýIPilogueĚýWriter and a 2L JD Candidate atĚýOsgoodeĚýHall Law School.Ěý

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is a 1994 (RPG) released in North America on the . It is the second entry in Nintendo’s series and the first to be translated and released outside of Japan. The game is satirical, featuring many zany characters and subversive content that mostly provides commentary and homage to Western culture. The soundtrack is just as strange, featuring , despite the of . The game’s 8-bit songs are inspired by genres ranging from to . Everything about the game defies what you would expect from a typical RPG, especially one from 27 years ago.

It also happens to be my all-time favourite game. ; the game has established itself as a . videos (LP) are a YouTube staple and popular games will have many LP series. Earthbound is no exception,

History of Earthbound

Though mass-marketed in a , Earthbound failed replicate its Japanese success in North America. Copies of the game along with a gamer’s guide packaged in special extra-large cardboard boxes sat unsold on shelves for months. Due to low sales ( sold in North America), the game remained a hidden gem for years until Earthbound’s main character appeared in the popular 1999 fighting game for the (and ), sparking a newfound interest in the forgotten series.

As popularity increased throughout the years, . Since many did not originally own or buy Earthbound, dwindling supply allowed the cartridges’ price to far beyond that of a regular SNES game. , software meant to emulate a game system, instead of shelling out over $100 USD to purchase the game. Thankfully, after endless lobbying from thousands of dedicated fans, Nintendo eventually re-released Earthbound for the Nintendo and for the in 2016—a move that finally allowed fans legal and affordable access to the game. The re-releases have also enabled many to broadcast their playthroughs with greater ease than previously possible. As it’s not on the yet, many who don’t own the older consoles may still enjoy watching others play online.

Let’s Plays & YouTube
Gamers and streamers often upload their gaming content onto sites like YouTube hoping to share their experiences with viewers. This type of video documentation is called “Let’s Play”. Legally publishing videogame footage largely depends on who the developers are and what they allow.

In late 2018, Nintendo discontinued the and implemented the . Nintendo “will not object to your use of gameplay footage and/or screenshots captured from games for which Nintendo owns the copyright (‘Nintendo Game Content’) in the content you create for appropriate video and image sharing sites,” as long as the guidelines are followed. The rules allow streamers to via “methods separately specified by Nintendo.” Nintendo further mandates “creative input and commentary” and explicitly disallows videos lacking such commentary. The remaining guidelines detail Nintendo’s reserved rights, Nintendo’s non-affiliation with YouTubers utilizing their intellectual property, and a FAQ section.

Copyright Claims
Earthbound content and music have remained mostly unscathed on YouTube for many years. Unfortunately, in recent months, many Earthbound players who uploaded their Let’s Plays have been struck with , effectively demonetizing the videos or, in some cases, outright removing them. One YouTuber, recently lost their Earthbound LPs’ ad revenue and their videos were removed. The YouTuber , with many fans responding with similar experiences and concerns.

How Does Sony Fit into This?

Nintendo owns the game’s brand and composed its music, but licensed the first two Earthbound series soundtracks to Sony for . Many fans were unaware of Sony’s Earthbound connection. Even though Nintendo allows LP videos, Sony can take down LPs and related content to protect its rights in the music. Users have attempted to dispute copyright claims, only to allegedly be hit by counterclaims from Sony. Google’s likely automatically detected Earthbound music and subsequently initiated the claims. , leading game developers to introduce “copyright-free” and . Earthbound is an old game though, and nobody seemingly knew Sony’s music license for the Japanese album even existed, until these claims arose.

The entire situation is noticeably disheartening for fans of a game where the music is integral to the plot and experience. Even though it is likely an algorithmic flagging issue, and Sony is entitled to defend their IP, the issue seems to indicate a larger problem. YouTube gaming is many users’ livelihood and/or dedicated hobby. Even if Sony eventually allows videos to return, unexpected copyright issues like these make the gaming process unnecessarily burdensome and financially detrimental. Suspended video publication interrupts potential ad revenue; while this may not have consequences for most, it can trouble users with millions of viewers. While potentially disingenuous to the experience, muting or changing the audio might be the easiest workaround to continue publishing LPs.

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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, Ěýreleased 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 Ěýwere 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 reportedlyĚý 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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EA’s primarily posited two arguments that the court ultimately found dissuasive. EA relied on the in terms of its basic right to create and distribute the video game. In response to Keller’s assertion of common law and civil code protection against the tort of appropriation of likeness – also known as the right of publicity – EA argued that the video game met the transformative use test, which allows the First Amendment to supersede publicity rights. Second, EA leaned on (“Strategic Lawsuits Against Public Participation”), claiming that Keller’s suit qualified as an attempt to punish EA for exercising its political rights. The court rejected these arguments.

Right-of-Publicity vs. First Amendment
California’s right-of-publicity is based in common law on , which supports a claim with these four conditions: use of the plaintiff’s identity, appropriation of that name or likeness to the defendant’s advantage, lack of consent and resulting injury. California validates this and adds that, in addition to Ěý“all the elements of the common law cause of action,” there must also be a "knowing use by the defendant as well as a direct connection between the alleged use and the commercial purpose.”

EA argued the transformative allowance, which allows the First Amendment to trump publicity rights if sufficient transformation has occurred between the original inspiration and the new work. EA argued that it had added significant creative change so that the players’ likenesses within the game were transformed to surpass existing as a simple imitation. In arguing this, they relied not on the transformation of the likeness per se, but in the concept of the game as a whole as sufficiently transformative. One judge dissented from the majority, agreeing with the "game-as-a-whole" transformation argument. The remainder, however, didn’t agree.

The majority argued that there was simply too much direct copying of Keller’s likeness to meet the transformation threshold. Indeed, there were many direct comparisons.

“In the 2005 edition of the game, the virtual starting quarterback for Arizona State wears number 9, as did Keller, and has the same height, weight, skin tone, hair color, hair style, handedness, home state, play style (pocket passer), visor preference, facial features, and school year as Keller.” (p. 7-8)

As was emphasized by Judge Jay Bybee, upholding the lower court decision,

“Keller is represented as ‘what he was: the starting quarterback for Arizona State’ and Nebraska, and ‘the game’s setting is identical to where the public found [Keller] during his collegiate career: on the football field’.” (p. 16)

Outside of the transformation argument, EA also posed the related argument that because the game maker included numbers but not theĚýlast names on the in-game jerseys, the likeness threshold was not met. This argument received little traction. As the verdict found - and as one succinctly pointed out - EA “intentionally designs its sports games to allow gamers to circumvent this formality, providing a means to easily upload entire rosters of actual player names, after which player jerseys contain both the player’s number and name. Although EA could easily block this feature (as they do for profanity), they choose not to.”

The Anti-SLAPP Statute
California anti-SLAPP law is best summarized as an attempt to prevent suits that “masquerade as ordinary lawsuits but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so” ().

By siding with Keller’s publicity rights, the court inherently rejected the idea that Keller’s suit was a frivolous attempt to trample EA’s constitutional rights.

Canadian Application
Though there are many in Canadian appropriation of personality jurisprudence, our domestic requirements would have been met handily in Keller v EA.

The Ontario Court of Appeal’s 1997 decision Krouse v Chrysler Canada Ltd. outlined that the two requirements to satisfy the tort are identity exploitation for commercial purposes, and exploitation that clearly captures the personality of the plaintiff. The test for commercial purpose was solidified in 1996 in , which outlined the need for the likeness to be predominantly connected with the sale of the consumer merchandise. One example given in the verdict directly correlates to Keller v EA,

As a result, Elvis Presley posters, pewter replicas of a statue of Elvis Presley, a “Howard Hughes” game which included Hughes’ name and other biographical information, and a board game utilizing the names and biographies of famous golfers, have all been found to infringe the right of publicity: see Presley, supra, p. 1358. All were found to be commercial products which were not vehicles through which ideas and opinions are regularly disseminated. (para 21) (Emphasis author's own.)

Thus, there isĚýnot much doubt that in a Canadian context, the case would have been similarly decided.

Analysis and Opinion
There are two particularly unsettling components of this case: that it took the courts so long to come to this fair decision, and that even with it, there was still a dissenting judge who supported the transformation argument.

This decision is fair based on the reasons argued, but it is also intuitively fair in my opinion because of the lack of options afforded to the individual players. NCAA bylaws prevent college athletes from receiving compensation for their skill or status. This means they can’t sign endorsement deals or barter away their likenesses, even if they wanted to do so. Yet, at the same time, the NCAA is signing exclusive rights deals with video game makers like EA in order to create these profitable NCAA league video game franchises. The likeness appropriation is clear, as is the commercial motivation. Quite simply, the system was designed to exploit the players. Keller and the co-plaintiffs made the right decision in suing.

Finally, arguing that the game was sufficiently transformative in its whole so as to override the individual identity infringement is a difficult pill to swallow. Yes, it is a video game. Yes, there are ways to alter and change certain characteristics of the game. Yes, there are no last names on the jersey. Yes, there are many potential arguments that amplify the differences between IRL (in-real-life) Keller and video game Keller. But at the end of the day, they are all attempts to create legal loopholes to avoid the ultimate truth: a company does not have the right to profit from a person’s identity without permission. The transformation allowance is meant to be more substantive and rights-protective in its application. It is gratifying to see the court reject EA’s attempt to use the First Amendment’s transformation allowance to override personality rights, because to do so would have been an insult to both crucial legal concepts.


Denise Brunsdon is an IPilogue Editor and a JD/MBA Candidate at Western University.

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