Journal Articles

It’s Time for the Copyright Act to Patch-in a Statutory License for Video
Game Streaming

The rising popularity of gaming, coupled with the growth of streaming sites like YouTube and Twitch, has helped create a rapidly expanding market for video game content directed toward viewers. This new market has provided new areas for content creation—most notably esports and streaming. Esports draws viewers in with competitive games and highly skilled professional gamers, mirroring the appeal of traditional professional sports. Streaming, on the other hand, blends in personality, more closely resembling talk shows and game shows. Both sources of content, however, rely on the ability to use the underlying copyrighted works: the video games themselves. This Note proposes amending the Copyright Act to implement a statutory license that would provide access to these underlying works without needing affirmative permission from a game publisher.

Specifically, the amendment would create separate statutory definitions for the terms “video game” and “video game that enables user creativity,” providing a foundation for video games to be eligible for the statutory license. Using the current statutory license for music as a framework, the license would be limited solely to “video games that enable user creativity.” The proposed definition for a “video game that enables creativity” is: a video game for which (1) the level of user autonomy outweighs (2) the pre-determined aspects of the video game rendering the user’s input the primary source of entertainment. This amendment would ensure that streamers and esports professionals have access to the medium they rely on, while still compensating publishers for creating the medium. This would guarantee that the underlying goal of copyright—encouraging content creation—is met by creating market certainty and ease of access. Lastly, this Note will walk through several examples of how the proposed statutory amendment would apply to various types of video games.