Fair Use In Esports: Factors To Consider

Posted By Adam Gertz on June 8, 2016 - Last Updated on January 22, 2018

[toc]Let’s take a moment and talk about “fair use.” Chances are, you have benefited from fair use whether genuine or falsely claimed. I know I have.

Recently, fair use has been in the news, thanks to the crowd-funded Fair Use Protection Account. This is an excellent platform that will seek to protect YouTube and other streamers from litigious content owners a.k.a. “copyright trolls.”

By protecting the “little guys,” it takes further steps make the internet a free and open place, and it’s an effort we should all applaud.

However, even with this effort, there is still ignorance as to what fair use actually is. Some merely write “fair use” in the video’s description and call it a day. On the other side of the spectrum, some are afraid to post any footage at all out of litigation fears.

Fair use is great for small content producers, and allows for a more free and open internet, however it is not a panacea.

Let’s say you’re watching a video on YouTube. Maybe it’s a clip from an esports broadcast, maybe it’s an entire League of Legends match, maybe it’s a feature film. If the video was not posted by the content’s owner, you’ll likely see a disclaimer written below. It will read something to the effect of “I post this under fair use.”

Forgive the bluntness, but that act is absolutely meaningless.

Most esports games have clauses in their end-user license agreements that allow for royalty free streaming by any player. However, broadcasts of professional esports matches do not provide such permission.

These broadcasts contain, or should contain, the same warning against unauthorized distribution or transmission that as any NFL, NBA or other professional sports web/telecast. As esports broadcasting grows more ubiquitous, there will be more and more opportunities for people to post footage on YouTube and other sites. This footage may or may not be protected under fair use.

This article is not a detailed explanation on fair use. That would require far more words than anyone is willing to read outside of preparing for a law school exam.

Indeed, there are attorneys who dedicate their entire practice to the topic. However, this article will serve as a brief primer on fair use – what it is, how it is used, and what it takes to fall under its protection.

For the purposes of this article, we will consider the work in question to be an entire broadcast of an esports match, posted to a streaming site without permission of the game’s publisher or the licensee broadcaster. (We are not talking about streaming, which is a separate issue).

Copyright at a glance

Copyright is not one right. Rather, the original owner of a copyrighted work of authorship has a bundle of certain exclusive rights in said work. These rights include, among others, the right to reproduce, adapt, perform and distribute the work.

For an esports broadcast, the exclusive rights most often implicated will be the rights of public performance and distribution. For instance, a licensed broadcast of a Counterstrike match is a public performance of the game, for which the licensee paid a fee to broadcast.

Someone who posts a YouTube video of that broadcast, without permission, has committed copyright infringement. However, simply committing infringement does not automatically impugn civil or criminal liability. There are multiple defenses to infringement. Fair use is the best of those defenses.

Fair use defense

Fair use is a defense to copyright infringement in the same way that self defense is a defense to battery. It is a complicated aspect of copyright law and requires a detailed analysis.

In short, whether the use of another’s copyrighted work without permission can qualify as fair use depends on a four factor test — the purpose and character of the use, the nature of the copyrighted work, the amount of the work that was used, and the effect of the use on present and future markets.

1. Purpose and character of the use

For this test, what matters is whether the infringement is transformative. An infringement can be transformative if it changes the meaning or appearance of a work in a meaningful way.

For example, highlights of a particularly intense Counterstrike match, overlaid with unique commentary that analyzes, satirizes or otherwise comments on the clips may be sufficiently transformative.

However, simply reposting the entire match with no sound, is likely not sufficiently transformative because it does not change the purpose of the original performance or broadcast.

2. Nature of the copyrighted work

Is the work fiction or nonfiction? Was it published or not?

Nonfiction tends to weigh in favor of a fair use defense because the reproduction or adaptation of a nonfiction work can be said to be newsworthy or for the purposes of academic research. (Note: ethical prohibitions against plagiarism are separate from copyright law.)

Thus, because an esports broadcast is a newsworthy event, this factor would tend to weigh in favor of the infringer. However, keep in mind that this is not dispositive. As mentioned above, fair use is a four-part defense, which brings us to the next factor.

3. Amount and substantiality of portion used

The question swaying this factor is how much of the copyrighted work was taken and how significant were those portions to the work as a whole.

This is where the nonfiction aspect of the esports match can be rendered moot. It is not necessary to post an entire match, without editing or breaks, to provide analysis or commentary on its outcome.

The significance of the portions taken also matter. For instance, if one posts a game review, generalized gameplay is likely to weigh in favor of fair use, whereas showing the game’s climactic boss-fight will not.

4. Effect on present and future markets

This is the last prong of the fair use analysis. The question here is whether widespread conduct of the same or similar nature would substantially and adversely impact the market for the original work.

There is a strong argument that an unregulated, after-the-fact esports broadcast, would cheapen the market for esports. After all, most people would likely forgo the streaming/cable subscription fees and ad dollars required to watch a match live when they can simply catch a full replay on YouTube a few hours later.

There is an argument to be made that esports publishers and broadcasters will look the other way to generate more popularity for their brand. However, as esports continues to grow, this will happen less and less.

These factors are not equal. When adjudicating a fair use defense, courts will afford the first and fourth factors the most weight.

In conclusion, if you post an esports broadcast, a Let’s Play, a movie or a music video, you may want to consider the above factors before you claim fair use in the video’s description. This is not meant to be discouraging. Criticism, analysis and parody are all wonderful things. Fair use is my favorite part of copyright law because it makes all of these things possible.

The Fair Use Protection Account is an excellent tool and I hope it continues to grow to where it can perform its mission well. In the interim, take some time to understand fair use and how it can be used to advance esports and other content across the internet.

DISCLAIMER: This article is intended for informational purposes only. It is not intended to provide legal advice. If you are in need of legal advice, please consult a licensed attorney.

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