Video Games: Copyright Law and the Future of an Industry

By Jonathan Stahl

Jonathan Stahl is a rising senior at the University of Pennsylvania majoring in Philosophy, Politics, and Economics (PPE) with a minor in American Public Policy.  

On July 9th, 2013, the eve of the largest American fighting video game tournament, tournament organizers received a message from Nintendo of America, owners of the 2001 GameCube best seller, Super Smash Bros. Melee. [1] The letter explained Nintendo’s intention to prevent the event from being held. In the end, after intense blowback by fans on social media and gaming news sites, Nintendo reversed its decision and granted the Evolution 2013 tournament permission to host and stream the event. [2] Although the tournament was a smash hit and the Melee stream garnered a record breaking 134,000 simultaneous live viewers, the message from Nintendo remained a stark reminder to video game streamers that their ability use video game content to entertain viewers is ultimately at the discretion of the video game publishers under current copyright law.

The current Copyright Law of the United States dictates that copyright violation occurs when one “publicly performs” copyrighted content without a license. [3] The code explains that public performances include not only displaying copyrighted content in public to a substantial number of individuals, but also disseminating electronic copies of the content. With these copyright protections in place, video game publishers have legal authority to ban public tournaments and online video makers from featuring content from their games. Given the explosive popularity and profitability of video game live streaming and uploading onto game-sharing sites, the legal issues of copyright and video game footage has become a salient discussion in recent years.

When affordable video game recording devices first hit the market in 2009, the “Gaming” category on YouTube, where most users uploaded video game content accompanied by commentary, experienced rapid growth. Hundreds of YouTube users found video game commentary production to be extremely lucrative. For example, YouTube video game star PewDiePie earns $4 million a year producing and uploading gaming videos. [4] The growth of video game live streaming has been just as rapid and has been a growing source of revenue as well. In fact, game-streaming platform Twitch.tv was sold to Amazon for $1 billion in 2014. [5] In light of these developments, developers’ reactions across the gaming industry have been varied. Some developers allow content creators to upload content with impunity, while others assert their rights as copyright holders and demand part of the profits that gameplay uploaders earn.

Nintendo has asserted its legal rights in the YouTube realm as well, and is spearheading the industry effort to benefit from the ad revenues that gaming channels bring in. YouTube partners who upload recordings of Nintendo games have received ultimatums from the publisher: either split the video ad revenue with Nintendo or risk having the videos taken down through copyright violation claims. [6]

Other publishers have embraced a more relaxed philosophy regarding their copyright protections. Mojang, the publisher of the game Minecraft, explicitly grants players the right to upload videos of in-game content in their End User License Agreement, and even allows YouTube partners to collect ad revenue from Minecraft videos without obstruction. [7] Starting in 2010, Minecraft enjoyed rapid growth in sales and popularity as video makers uploaded videos of in-game footage and exposed their viewers to the game. A study from the Annenberg Public Policy Center at the University of Pennsylvania describes that in August of 2010, a year after Minecraft came out, a total of 4,000 Minecraft videos had been uploaded to YouTube.  A year later, in August of 2011, 1.9 million Minecraft videos had been uploaded to the site, and Mojang was reportedly raking in $250,000 a day due to the explosive growth in sales, which was principally sparked by online video makers popularizing the game. [8] Last month, Microsoft struck a deal with Mojang to acquire the company for $2.5 billion, and a YouTube search shows that over 58 million Minecraft videos have been uploaded to date. [9]

Given the potentially symbiotic relationship between video game publishers and content uploaders as illustrated in the case of Minecraft, critics find themselves scratching their heads when they see Nintendo acting as aggressively as they did to protect their copyright. While publishers like Nintendo and Mojang certainly have the right to prevent video-makers from uploading and making a profit off of videos that include copyrighted in-game content, the real conversation lies in whether companies are better off enforcing copyright or letting video-makers upload in-game content without consequences. As sites like YouTube and Twitch.tv continue to grow, video game publishers must ask themselves how to deal with copyrighted content that will inevitably be shared to the masses.



[1] “Evo 2014 Championship Series | Official Website of the Evolution 2014 World Championship Series.” Accessed November 12, 2014. http://evo.shoryuken.com/.
[2] “Super Smash Bros. Melee EVO Livestream Back in Action.” VG247.com. Accessed November 13, 2014. http://www.vg247.com/2013/07/10/super-smash-bros-melee-evo-livestream-squashed-by-nintendo/.
[3] “Copyright Law of the United States | U.S. Copyright Office.” Web page. Accessed November 12, 2014. http://www.copyright.gov/title17/.
[4] “YouTube Video Game Star PewDiePie Earns $4 Million Per Year.” GameSpot. Accessed November 13, 2014. http://www.gamespot.com/articles/youtube-video-game-star-pewdiepie-earns-4-million-per-year/1100-6420544/.
[5] Taylor, Colleen. “CrunchWeek: Twitch’s $1B Sale, Snapchat’s $10B Valuation, Uber’s Operation SLOG.” TechCrunch. Accessed November 13, 2014. http://techcrunch.com/2014/08/29/crunchweek-twitchs-1b-sale-snapchats-10b-valuation-ubers-operation-slog/.
[6] “Nintendo’s New Affiliate Program Will Split YouTube Ad Revenue with Proactive Users.” Polygon. Accessed November 13, 2014.
[7] Owen. “Let’s Talk Server Monetisation!” Accessed November 13, 2014. https://mojang.com/2014/06/lets-talk-server-monetisation/.
[8] “Mining Data from Minecraft.” GameSpot. Accessed November 13, 2014. http://www.gamespot.com/articles/mining-data-from-minecraft/1100-6331569/.
[9] Ovide, Shira, and Evelyn M. Rusli. “Microsoft Gets ‘Minecraft’—Not the Founders.” Wall Street Journal, September 15, 2014, sec. Tech. http://online.wsj.com/articles/microsoft-agrees-to-acquire-creator-of-minecraft-1410786190.

Photo Credit: Flickr User wlodi 

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