michigan esports Archives - ARTAEV AT LAW PLLC

FAQ: Can Playing Music on Twitch Get Me Sued?

Yes it can. As the popularity of internet streaming soars, content creators are encountering unique legal issues related to the media that they use. In June 2020, Twitch received thousands of so-called “takedown notices” under the Digital Millennium Copyright Act (“DMCA”) related to multiple archived clips that contain copyrighted music. The Recording Industry Association of America (“RIAA”) owns the copyrights to many popular songs and is responsible for this DMCA blitz. This situation has prompted many questions from the streamer community, and so I have created this FAQ in response. If you have more specific questions regarding your situation, please reach out directly to set up a personalized consultation.

Q: What exactly is the issue with playing music that I paid for?

A: The issue is copyright law and the fact that that most streamers don’t have the right license. When you purchase a CD, download a song from iTunes, or subscribe to Spotify, you are only buying a personal use license for the songs. Remember how making bootleg CDs is “piracy” and illegal? That’s because your “ownership” of a song does not include the right to reproduce it. It also does not include the right to play the music for the public. When you hear music a gym, restaurant, or retail store, they have obtained special “public performance” licenses, which are more expensive.

Q: Are they really going to sue me? Even if I’m not making any money?

A: They might. Under U.S. copyright law, the copyright owner may sue to get an injunction (an order to stop doing something from the court), and in addition to actual damages, get statutory damages, as well as costs and their attorney fees. Under the law, infringement is still infringement even without profit or monetary gain. If a court finds that the infringement was willful, statutory damages can be up to $150,000.00. Also, under the Twitch terms of service, three DMCA notices against your account is grounds for a permanent ban from the platform.

Q: Why is Twitch so concerned with what I am doing?

A: Because they may be liable as the host of the copyrighted content. Under the DMCA, Twitch can avoid liability as the host if they act in response to a “takedown notice.” That is why they have been actively mandating mass clip deletions in response to the DMCA notices they have received. It is generally easier for a copyright holder to target the host like Twitch or YouTube than the streamer. The host has incentive to act in order to take advantage of the “safe harbor” under the DMCA, and if the host doesn’t act, the host has money to pay any adverse judgment obtained by the owner of the copyright.

Q: Isn’t my playing music “fair use”?

A: Probably not. The “fair use” exception to copyright infringement generally protects reproduction for criticism, comment, educational use, news reporting, scholarship, or research. When music is played to accompany a streamer’s gameplay, the music is not being used for any of these purposes. Whether or not something is “fair use” is a fact-specific inquiry, but generally playing a soundtrack to your gameplay is not going to be considered fair use.

Q: Isn’t the video game itself also protected under copyright law? Do I need a special license to stream the game itself?

A: The game content itself is protected by copyright, but streaming it probably qualifies as “fair use” and is protected from infringement actions. Most streamers commentate or critique their gameplay or the gameplay of others, so arguably the use of copyrighted content meets the factors listed in 17 USC 107. Essentially, sharing copyrighted content is the base of the entire streaming industry.

However, as Wisconsin attorney Matthew Harding pointed out to me, the issue is far from settled. On one hand, Amazon’s multi-billion dollar acquisition of Twitch, as well as eight-figure exclusive streaming contracts with top-tier talent, indicate that the industry is confident in its fair use argument against any game companies that would target the game itself. On the other hand, there are prominent industry figures that believe streaming video game content is not fair use and could be targeted via DMCA take-down notice, much like unlicensed music. Mr. Harding also observed that any company that targets streamers of its games with copyright infringement lawsuits or takedown notices will face significant backlash from the community, but the bottom line is that the publisher still owns the copyright and is entitled to enforce the exclusive rights that are attached to that copyright by law.

Q: I’m confused. I have seen rhythm and music game streamers get taken down – why are they not protected by “fair use”?

A: As stated in the response to the previous question, the “fair use” issue is not settled. In fact, each “fair use” situation is fact specific, but it is likely that these rhythm or music game players are not using the copyrighted work for commentary or criticism purposes. It is not enough to simply broadcast yourself playing the game. Running commentary or criticism is needed to make a plausible “fair use” argument.

Q: As a streamer, what can I do?

A: Twitch is actively working to give its streamers options. Recently, it has launched Soundtrack – a product that allows streamers to run a separate music channel during the broadcast. The artists and labels available are limited, but gives indie artists more potential exposure. Of course, the RIAA is fighting Twitch on this product too, claiming that Twitch needs synchronization and mechanical licenses for its Soundtrack tool. The fight continues.

Also, there is a number of websites that sell royalty-free licenses. For example, Tunepocket offers memberships that give streamers access to a range of music and sound effects specifically for public performance.

Q: I am a podcaster. Can I play music during my podcast?

A: Unless you hold the copyright to the music (i.e. it’s original) or have the right license, no. You face the same issue as streamers do when they play music in the background of their game streams. Music you buy on iTunes or stream through Spotify is not licensed for public performance like your podcast.

Dan Artaev is an experienced attorney who is an avid gamer and who has advised gaming companies regarding various legal issues, including intellectual property rights. Have more questions? Contact Dan by email at dan@artaevatlaw.com or by phone or text at (269) 930-0254.

A Lesson in Licenses and Why You Own Nothing.

In 2019, Fortnite went offline. No one could play, stream, compete, or access their account. This was part of an in-game “event” known as the Fortnite Blackout or The End. Can Epic Games do that? What rights do you even have as a player, team owner, or competitor? It all comes down to the End User License Agreement (EULA) – so leave it to a gaming lawyer to use Fortnite to teach you about the critical role of licensing in the digital age!

By way of background, Fortnite is certainly one of the most –if not the most popular video game in the world. The game, which is available as free download on modern consoles, PCs, and even iPhones, is a hit with kids, teens, adults, professional athletes, celebrities, and even Prince Harry (the Duke of Sussex) who got so addicted that he called for the game to be banned in Britain. True story. It has also evolved into an international eSport phenomenon, with this year’s World Cup Finals winner taking home a cool $3 million check. There are hundreds, if not thousands, of professional gamers and streamers across the world that make this game their career. Epic Games, the game’s owner and creator, is estimated to have earned between $2.4 and $3 billion from the game in 2018 alone. This is particularly impressive given that the game is free to download and play, with all of the revenue coming from in-game cosmetic content, such as different character outfits.

Now imagine if one day all of that was suddenly gone. Epic shuts down the servers and Fortnite no longer exists. Well, this actually happened (at least for about 24 hours)–during the Fortnite Blackout or The End event. The hundreds of hours you spent playing, earning points, and ranking? Gone. Did you spend all of your birthday money on new outfits so you could look like a James Bond villain in the game? Gone. Even worse if you are a professional gamer who made Fortnite a career. Or a team owner who invested hundreds of thousands of dollars into building the next world champion. What can you do? Who can you sue?

The simple answer is NOTHING and NO ONE. Because you have to understand licensing. And the fact that the traditional concepts of ownership–i.e. I pay money for something therefore I own it–do not transfer to the digital world. Did you read the EULA that you have to accept before logging into Fortnite? I didn’t think so. Yet it contains important rights and obligations–especially if you play professionally. The reality is, by playing Fortnite and even paying real money to “buy” in-game characters, weapons, etc., you own nothing. In simple terms, Epic Games grants you a license to play the game at its sole discretion, but Epic Games owns and controls everything and anything within the game, even the content that you paid real money for.

The Fortnite EULA is a license, which is a right to do something, or access something. Think of it like a ticket to go see a football game or a concert, but in this case it is a ticket that gives you access to a video game. In legal terms, what distinguishes a license is the fact that it is a “revocable” right, meaning the licensor (the owner of the license) can terminate the licensee’s rights of access at any time, subject to any conditions of the license. So what terms do you agree to when playing Fortnite?

Epic grants you a “personal, non-exclusive…limited right and license to install and use the Software…for you personal entertainment use.” Also, ” The Software is licensed, not sold, to you under the License. The License does not grant you any title or ownership in the Software. ” Ok, but can Epic just shut down the game? Yes–read on–” You also acknowledge that any character data, game progress, game customization or other data related to your use of the Software or Services may cease to be available to you at any time without notice from Epic….”

What about all the real money you paid for skins, custom characters, etc.? You get that back, right? Nope. Read on–” Epic, in its sole discretion, has the absolute right to manage, modify, substitute, replace, suspend, cancel or eliminate Game Currency or Content, including your ability to access or use Game Currency or Content, without notice or liability to you.” Meaning, you do not really own any “game currency” or the “content” that you bought–in fact, all you are acquiring when you are “purchasing in-game content” is another license to use the currency or the content that you purchase with the currency for as long as Epic wants.

It’s not really so confusing. When you downloaded and played Fortnite, you agreed that Epic owns everything and you own nothing. If you paid any money to Epic for skin or custom parachute, Epic gave you a license to use that particular skin or parachute. You paid for the “experience”–not a tangible item itself. That’s licensing.

Of course, this reality creates a whole host of follow-up questions. What happens to content I create using Fortnite’s creative mode? Does Epic own that too? Short answer is YES. What about streamers who make a living playing Fortnite? Professional gamers? Team owners? Fortnite World Cup sponsors? There is no easy answer there, as each situation is fact-specific and depends on the various terms of the license agreements, any sponsorship agreements, intellectual property law, etc.

The Fortnite Blackout was a lesson in “ownership” in the digital age. Traditional concepts of ownership do not apply or transfer to to the digital realm. Music, video, games, and even photos that you upload or post on social media–are not “yours” in the traditional sense. Rather, there is an increasingly complex web of rights that becomes even more complex when gaming is a business.

So, like any business owner, if you are investing time, money, and effort into a game–with the idea to play professionally, make streaming revenue, or to otherwise make it in the gaming business–engage and consult with an eSports attorney. Understanding your rights and obligations will help you craft an effective business strategy going forward, and plan for contingencies and er…singularities.

Have more questions? Contact Dan Artaev at dan@artaevatlaw.com or 269-930-0254 to set up your free initial consultation.