Thirty Five Years Without Player Rights in Gameplay
The fundamental legal issue underlying the esports industry is copyright. Under federal statute, protection for a copyright is provided to “original works of authorship fixed in any tangible medium of expression.” The clearest original works within esports are the video games themselves, which are owned by publishers who then control the outward (or downward) flow of rights from the original copyrights in the games. That flow of rights also largely and presently correlates with the flow of money in esports: because a publisher owns the copyright in a given video game, any party that wants to use that video game’s content—a league, tournament organizer, sponsor, content producer, streamer, player—will almost inevitably have to pay the publisher for a license to use that content.
Because of the prime economic and legal position held by video game publishers, if any other esports stakeholder were to somehow independently develop copyrights in a publisher’s video game—in parallel to the publisher—those rights would be valuable. More specifically for purposes of this article, if esports players and video game influencers were to possess rights in their gameplay of a video game, teams, content producers, sponsors, and other similarly situated stakeholders would have to pay not just video game publishers for a license to use the video game, but also players and influencers for a license to use their gameplay.
While courts to date have effectively held that video game players have no copyrights in their gameplay, those decisions derive from games like Pac-Man and Galaxian, which bear little resemblance to contemporary games. With the rise of increasing video game complexity, more sophisticated play, and new judicial tests involving copyrights in software output, a legal window may be opening for a player or influencer to challenge old precedent.
Midway Manufacturing and its progeny presently preclude player performance rights in gameplay.
We begin with the original precedent. The year was 1983 and the United States Court of Appeals for the Seventh Circuit was dealing with two questions of first impression: (1) could copyright law protect a video game, and (2) could a player of a video game create a new, copyrightable work by playing the video game? The parties to the action were Midway Manufacturing Company, creator of the now-iconic titles Pac-Man and Galaxian, and Artic International, Inc., the alleged infringer. According to Midway, Artic had infringed Galaxian by producing a hardware modification that sped up the game’s gameplay and sounds. Artic had also allegedly infringed on Midway’s Pac-Man by creating a nearly identical game with the highly original title of “Puckman.”
While Artic’s action’s might strike us now as fairly clear examples of copyright infringement, courts in 1983 were just beginning to consider whether video games fell under the definition of an “audiovisual work” under Section 101 of the 1976 Copyright Act. The manifest applications for what constituted an “audiovisual work” were film and television. But as the court in Midway noted, in contrasting video games from film and television, “each time a video game is played, a different sequence of images appears on the screen of the video game machine—assuming the game is not played exactly the same way each time.” Notwithstanding that distinction, the Seventh Circuit Court of Appeals held that video games were “audiovisual works” under the Copyright Act, relying on Congress’s initial intention for a broad reading of the Act.
A second question, much more relevant to esports, remained: whether a player of a video game creates a new work by merely playing the game. The player could change what happened on the screen by moving a joystick, which the court said could be “a little like arranging words in a dictionary into sentences or paints on a palette into a painting.” But was playing a video game sufficiently similar to writing or painting so that each performance of a video game could be considered the work of the player instead of the game’s creator? The court answered in the negative, stating, “Playing a video game is more like changing channels on a television than it is like writing a novel or painting a picture.” At that time, because of the static nature of the map, the camera view, the options of play, and so forth, the player could not
create any sequence he wants out of the images stored on the game’s circuit boards. The most he can do is choose one of the limited number of sequences the game allows him to choose. He is unlike a writer or a painter because the video game in effect writes the sentences and paints the painting for him; he merely chooses one of the sentences stored in its memory, one of the paints stored in its collection.
Those sentences sum up the status of a player’s performance rights in video game play for the last thirty-five years.
The holding in Midway Manufacturing was reaffirmed over the following decades. In 1989, the Fourth Circuit Court of Appeals held in Red Baron-Franklin Park, Inc. v. Taito Corp., 883 F.2d 275 (4th Cir. 1989), that playing a video game in an arcade constituted a public performance under Section 101 of the Copyright Act. In that case, Red Baron operated arcades with various video games, including the game Double Dragon, created by Taito, who had registered Double Dragon for copyright in the United States. Taito argued that it held a valid copyright, which included rights of distribution and public performance. Red Baron had acquired grey market copies of Double Dragon and had not obtained a license or other permission from Taito, but the district court had held that the first sale doctrine extinguished “all rights [Taito] had under the copyright laws, including the right of public performance, so that Red Baron did not infringe.” In reversing the district court’s holding, the Fourth Circuit reasoned that, while the first sale doctrine precluded infringement based on the right of distribution under copyright law, the doctrine did no remove any other rights under copyright law, including the right of public performance. Red Baron, therefore, “not having a performance license from Taito or Taito America, infringed Taito’s copyright.”
Later, in a case involving Valve, creator of Dota 2 and Counterstrike: Global Offensive, the United States District Court for the Western District of Washington cited Red Baron favorably in dismissing a defendant’s argument that “playing video games in public is not a public performance.” The court in Valve also contrasted Red Baron with the decision from the Ninth Circuit Court of Appeals in Allen v. Academic Games League of Am., Inc., 89 F.3d 614 (9th Cir. 1996), which held that playing board games in public did not constitute a “public performance.”
A new challenger approaches? New cases provide a window for player rights.
Only in the last year have decisions emerged that start to push back on precedent dating back thirty-five years, which has had the effect of precluding players from developing rights in their game play. First, in a case involving Epic Games, creator of Fortnite, Epic sued various defendants including Konstantin Vladimirovich Rak. The court in Epic Games was considering a motion for default judgment, and so the briefing was limited, but the court, looking at Allen, openly questioned why the logic of Allen should not apply to video games as well. The Ninth Circuit in Allen had reasoned that the term “play,” which had traditionally applied to playing music or records, had
not been extended to the playing of games. To do so would mean interpreting the Copyright Act in a manner that would allow the owner of a copyright in a game to control when and where purchasers of games may play the games and this court will not place such an undue restraint on consumers.
Despite the compelling logic of Allen, the court in Epic Games declined to consider whether to apply that same logic to video games, noting that it lacked full briefing on the matter because it was considering only a motion for default judgment.
Second, in Rearden LLC v. Walt Disney Company, a case not involving video games but instead the software used to create the lifelike depictions of Grand Moff Tarkin and Princess Leia in Star Wars and other similar motion capture animations of human faces, the United States District Court for the Northern District of California reasserted a test for computer programs in circumstances that provide a potential window for players to gain rights in their gameplay. In Rearden, Disney had used the MOVA Contour Reality Capture Program (“MOVA”), owned by Rearden, to create the motion capture animation for a number of films including Beauty and the Beast, Deadpool, Terminator, and others. Rearden argued that not only had Disney violated Rearden’s patent for the MOVA software by using the software without authorization via a third-party contractor, but that Rearden also had a copyright in the output from the MOVA software—that is, Rearden was arguing that it owned whatever audiovisual images a user of the MOVA software created with that software. The parallel to video games is whether the owner of software (a game publisher) can claim copyright in the output from the software (the player’s gameplay).
Rearden’s arguments and the court’s rebuttal both focused on a case called Torah Soft v. Drosnin. The court, in explaining Torah Soft and rejecting Rearden’s copyright claim, stated that “[a]ssuming that a copyright in a computer program may extend to its output, Rearden must adequately plead that the MOVA Contour program does the ‘lion’s share’ of the creating and that the end-user’s role in creating the final product is ‘marginal.’” The court focused on the underlying actors’ roles in creating the output from the MOVA software:
Here, unlike in Torah Soft, where the user merely inputs a word into the program, MOVA Contour’s user inputs a two dimensional camera capture that may range from Dan Stevens’[s] ‘facial expressions of all the scenes we had done on previous days’ to the ‘subtle and dynamic motions performed by the actor [Josh Brolin playing Thanos in Guardians of the Galaxy [sic]’ to ‘Brad Pitt’s 44-year-old-face.’
Because the creative input was deriving from the actor—or in our esports analog, the player—and not from the program itself, Rearden could not claim copyright in the MOVA software’s output. Indeed, while Rearden tried to emphasize the work done by the MOVA software, the court noted that Rearden “repeatedly acknowledge[d] the actors’ contributions throughout the complaints.”
The holding in Rearden, echoing Torah Soft, provides a new test in a new context that could help to displace Midway Manufacturing and its thirty-five year preclusion of player rights in gameplay. Long gone are the days of Pac-Man and its static level design and its comparison to changing channels on a television. Now, players control camera angles and placement. They engage in complex multiplayer matches while making unending strategic decisions often on three-dimensional maps. The skill level and, yes, artistry of their play attracts millions of viewers. At this point, it is easy to argue that players are doing the “lion’s share” of creating the output that is their gameplay. Maybe all that’s needed to overturn thirty-five-year old precedent—and to reap the corresponding economic rewards—is a new challenger.
 17 U.S.C. § 102(a). See also infra note xiii.
 One alternative to paying for a license is where a publisher “tolerates” otherwise infringing use. See, e.g., Tim Wu, Tolerated Use, 31 Colum. J.L. & Arts 617 (2008) (“‘Tolerated use’ is a term that refers to the contemporary spread of technically infringing, but nonetheless tolerated, use of copyrighted works.”).
 See Midway Mfg. Co. v. Artic Int’l, Inc., 704 F.2d 1009, 1011–12 (7th Cir. 1983).
 Id. at 1011.
 Audiovisual works are defined under Section 101 of the 1976 Copyright Act as “works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objections, such as films or tapes, in which the works are embodied.” 17 U.S.C. § 101.
 Midway Mfg., 704 F.2d at 1011.
 The primordial requirement of copyrightability is originality. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991). But the required amount of originality is quite low. Id. (“Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, no matter how crude, humble or obvious it might be.” (internal quotation marks and citations omitted)). For protection under the Copyright Act, works must be both original and “fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102. Given the low threshold required for originality, the current failure of courts to find copyrightability in gameplay is surprising.
 Id. at 1012.
 Id. at 279 (concluding both that the “operation of a video game constitutes a performance” under Section 101 and that, because “video arcades are open to the public,” playing Double Dragon at an arcade was a public performance). Red Baron built upon the foundation established by Midway Manufacturing, noting that the Fourth Circuit had agreed previously with the Seventh Circuit (in Midway Manufacturing) that “video games are copyrightable as audiovisual works.” Id. at 278. From there, the Fourth Circuit simply applied the plain language of 17 U.S.C. § 101—that to perform a work “publicly” meant to perform it “at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered”—which applied to playing a video game in an arcade open to the public. Id. at 278-79.
 Id. at 277.
 Id. at 277-78.
 Id. at 280-81.
 Id. at 281.
 See Valve Corp. v. Sierra Entm’t Inc., 431 F. Supp. 2d 1091, 1097 (W.D. Wash. 2004).
 See id. (citing Allen v. Academic Games League of Am., Inc., 89 F.3d 614 (9th Cir. 1996)). The Ninth Circuit’s decision appears to be based in large part on policy: “The term ‘play’ [as defined in Section 101 of the Copyright Act] has not been extended to the playing of games. To do so would mean interpreting the Copyright Act in a manner that would allow the owner of a copyright in a game to control when and where purchasers of games may play the games and this court will not place such an undue restraint on consumers. Whether privately in one’s home or publicly in a park, it is understood that games are meant to be “played.” Allen, 89 F.3d at 616–17. Perhaps the court in Allen would have come out differently if the players of the board games possessed merely a license, as is now often the case with video games, instead of “us[ing] their own games, purchased from Allen.” Id.
 See Epic Games, Inc. v. Mendes, No. 17-CV-06223-LB, 2018 WL 2926086, at *1 (N.D. Cal. June 12, 2018).
 Id. at *9 (“The concerns the Allen court had about giving copyright owners too much control over when and where purchasers of their games can play them might logically apply to video games too. Are video games different?”).
 89 F.3d at 616.
 2018 WL 2926086, at *9 (“[T]he court declines to rule on whether posting a video on YouTube of gameplay from a video game does or does not infringe upon a copyright holder’s 17 U.S.C. § 106(4) rights.”).
 293 F. Supp. 3d 963 (N.D. Cal. 2018).
 See infra note 25 and accompanying text.
 293 F. Supp. 3d at 967–69.
 See id. at 969–70.
 136 F. Supp. 2d 276 (S.D.N.Y. 2001)
 Rearden, 293 F. Supp. 3d at 970 (quoting Torah Soft, 136 F. Supp. 2d at 283).
 Id. at 971.
 Bolstering this position is the fact that some foreign esports players are now being granted EB-1A visas. Matt Best, Huhi Becomes Permanent North American Resident, VPEsports (July 15, 2018), https://www.vpesports.com/leagueoflegends/clg-huhi-greencard-visa-north-american-resident/. Obtaining an EB-1A visa requires demonstrating “extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim.” Employment-Based Immigration: First Preference EB-1, U.S. Citizenship and Immigration Services, https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-first-preference-eb-1 (last visited April 25, 2019).