eSports and the Right of Publicity -- Legal Essay

Competitive video and computer gaming is an emerging media and entertainment industrythat is looking to break into American mainstream culture.[1]   While some might not yet understand the allure of watching others play video games[2] the phenomena is growing at a rapid pace.  League of Legends ("League"), aMultiplayer Online Battle Arena is the biggest game in terms of both players and viewers. [3] In this computer game, players form teams of five and try to destroy the other team's base.  Each player picks an on-screen avatar ("champion") to control; all champions have certain unique abilities which give them strengths and weaknesses.[4]  Through strategy, set plays, hand eye coordination and quick reflexes, individuals climb through a ladder system and eventually into the pro scene.  League professionals are generally older teens or young adults, some may drop out of college or delay going altogether to pursue their dreams.[5]  Dreams that include living off of video gaming and being watched by millions of their peers while they compete for millions of dollars in cash prizes.[6][7]

The Season 3 League World Championship was watched by 32 million unique viewers across the globe.[8]  The Season 4 finale was watched by 11.2 million unique viewers concurrently.[9]  Comparatively, "the 2014 World Series averaged 15.8 million viewers" and "[t]he Heat-Spurs NBA Finals series averaged 15.5 million viewers."[10]  Twitch.tv, the biggest online game streaming website which was recently sold to Amazon for $970 million dollars, is one of many platforms that Riot Inc., the creator and owner of League of Legends, uses to broadcast their tournaments.[11] Broadcasts are typically conducted in an arena where the game is played live between the two teams.[12] After each game is played analysts discuss the turning points and interview players from the winning team.  Those players are signed to contracts with their teams for a term and amount, much like any other professional athlete.  These contracts are entered into by kids, more often than not without legal representation.  The party offering the contract has a horde of lawyers structuring the contract with legalese that laymen would not understand.  Without knowledge these players cede their right of publicity, a state law tort claim, to the contracting team or developer, often indefinitely. [13]

A right of publicity "prevents the unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of one's persona."[14] The right of publicity is freely assignable and licensable.[15] eSports player contracts have been conferring that right to Riot Games, League's game developer, without regard for what exactly is being assigned.[16]  The contractual structure in the eSports scene makes it such that a player must enter into contracts with both Riot and the team he plays for.[17] As the sport has grown advertisements and sponsors have become a major source of revenue for all parties involved.[18] Players eventually have their names and likeness attached to merchandise to promote brands and sell material; as is the case in all other major sports.[19]  For professional gamers, contractual terms give them no power to control the use of their likeness in conjunction with the promotion of League of Legends or any advertising done by a sponsor.[20]  Without a collective bargaining agreement or standardized player contract, players lack protection from team owners and game developers.[21]  As League has only begun to enter into the public eye, these legal issues have yet to be sorted out.  Most issues will not be resolved until players begin to hire legal representation.  Meanwhile, sponsors such as Coca Cola, American Express and Samsung, may begin to take advantage of this by using a player’s likeness in a commercial.[23]

The difference between an eSports player endorsing Coca Cola and a basketball player endorsing Coca Cola is the method in which the player’s likeness would be utilized.  In the former scenario, Coke may choose to promote its product by featuringYiliang Peng, a star player on the team "Counter Logic Gaming,"[24] in a commercial set to air on television withsome identifiable feature linking him to the game like his nickname “Doublelift.”  An example of a potential commercial involving Riot's sponsor Samsung might be similar to the following scenario: Doublelift is sitting at a desk preparing for the LCS on his Samsung monitor when the camera zooms in on the Samsung screen and shows the name “Doublelift” over a champion he controls.  While the promotion might seem harmless in nature, Samsung competitors might be less inclined to have Peng endorse their products.[26]  For instance, Toshiba, another monitor retailer, may forego approaching Peng when he has been seen playing on a Samsung monitor.  In effect by giving Riot the ability to market the right of publicity, Peng has indirectly limited the revenue he  might derive from the endorsement market.[27]

The rise of eSports will continue to raise fundamental legal questions and push our understanding of settled law beyond its current capacity.  One important question is how far will the courts extend protection to someone’s likeness, when that likeness does not resemble the person?[28]  In Wendt v. Host International Inc. two actors from Cheers sued for the use of robotic personas resemblin their television characters in Cheers themed bars.[29]  Similarly, Vanna White sued when Samsung prepared advertisements using a robotic impersonation of her likeness derived from the Wheel of Fortune.  Notably, in both cases the lower court questioned just how similar the portrayals were.  It seemed that the idea of a mailman in a bar was what was being protected in Wendt as opposed to the actual likeness of that mailman. Nevertheless, in both instances the reviewing courts denied summary judgment and found that a jury might recognize a likeness between the portrayal and the actors.  Accounting for this trend courts may be asked to determine whether there is a proprietary right in the player’s screen name.[30] 

Functionally, a screen name serves the same purpose as a nickname.  Mr. Peng is known in the community as Doublelift.  This name appears as an identifier in League as opposed to his real name. In Hirsch v. S.C. Johnson & Son, Inc. the Supreme Court of Wisconsin determined that Elroy “CrazyLegs” Hirsch made out a prima facie case for misappropriation of his name for trade purposes when defendant used his nickname on a shaving gel.[31]  “The fact that the name . . . was a nickname rather than [an] actual name does not preclude a cause of action.  All that is required is that the name clearly identify the wronged person.”[32] In game character names refer to an individual’s likeness much like a nickname does and should be treated the same.[33] Clearly then, absent these agreements conferring the publicity right to Riot, players would have a claim for misappropriation of their right of publicity.

Fearful of such a claim Riot has taken additional steps to protect themselves and this revenue stream. While a screen name may originally belong to the user, Riot has also required all players assign them their rights in the screen name. The Riot Terms of Use state in Section IV “[a]ll rights and title in and to the Properties, and all content included therein (including, without limitation, User Accounts, computer code, titles, objects, artifacts, characters, character names . . . character likeness, and methods of operation) are owned by Riot Games or is licensors."[34]  Furthermore the agreeing party must acknowledge that he has no property interest in the account.[35]  By its terms, the agreement states that the account belongs to Riot, therefore, the nickname on that account would belong to Riot as well.  What is unclear is the existence of the nickname outside of the account.  In some instances the player's nickname may precede the game's existence.  Assuming any agreement transferring perpetual rights to a player's likeness was invalidated or ceased to exist then this distinction becomes critical as Riot may argue that they are not misappropriating the player’s likeness and only displaying an account which they legally own.

Illustratively, assume Riot licenses its copyright to Razr, a mouse company, for a commercial.  The commercial will promote Razr’s product by showing a reproduction of League and a character with the name Doublelift over it. Then the commercial will cut to a picture of the mouse and end.   Razr may not have misappropriated Mr. Peng’s name because the name was used as part of an account belonging to Riot.  However, if Razr listed Doublelift as one of the gamers who used this mouse they may very well be infringing on that right because the name is not used in conjunction with League. In other words if the player refused to transfer his publicity rights then Riot would not own the name but would own the game in which the name happened to be a part of.  The difficulty in the former example is in Doublelift's perceived endorsement.  The end result is a reduction in the value of the player's endorsement and a tightening of the market for player endorsements. 

An interesting and difficult question focuses on whether individuals have a publicity right to avatars they create in other games.[37] In League, Riot creates the champions for the player to use.[38]  Alternatively, in MMORPGs (Mass Multiplayer Online Roleplaying Games) players create their own character models. In doing so, players are brought to a screen and presented with numerous predesigned options consisting of facial features, body types, clothing and the like to assign to their playable avatar.[39]  Blizzard, the owner of the most famous and most played MMORPG, World of Warcraft, has a similar agreement, which may be construed as a contract of adhesion, where the player must surrender all intellectual property rights in anything they create while playing the game.  

Oliver Khan notes that the publicity right should likely only extend to avatars that embodied a photorealistic representation of the player, like how Tom Hanks is represented in The Polar Express or how No Doubt was represented in No Doubt v. Activision Publishing, Inc.[43] However, if a nickname may be representative of a person’s likeness it is hard to imagine why a popular, unique, customized avatar could not do the same.[44]  In real life people may choose to express themselves through whatever means they prefer.  They may adopt a nickname which bears no resemblance to their real name.[45]  Similarly, in a virtual setting, players may have an option to design an avatar which in some way becomes associated with their real life persona. If the avatar becomes famous enough its association with marketable goods would create a sponsorship and endorsement market.  An example might be a of a famous avatar riding a specific virtual and marketable horse.  Using this example, it becomes easy to see how a developer might choose to market their horse using the avatar without the permission of the player who has become associated with that avatar.  If this were to happen, the same problem as displayed in Doublelift's case would exist.  The developer would claim ownership of the intellectual property and the game while the player claimed ownership of the publicity right.

 Proprietary rights in this industry have not yet been defined outside of contracts which may be voidable for unconscionability.  These contracts take away rights from the player and in the process inhibit ways in which these players can seek alternative revenue streams.  A collective bargaining agreement would be a step toward standardizing player contracts and decreasing potential abusive practices by the contracting teams and developers.  Unfortunately this solution does not appear to be on the horizon.[46]  For now players will need to obtain independent legal counsel so that they can structure their contracts in more favorable ways.  ESports attorneys should prioritize a player’s right of publicity in negotiations.  Similarly, as eSports continues to grow the law surrounding avatar creation will need to be developed.    Issues like copyright and misappropriation of a player’s likeness will be at the forefront as the game promotes itself using recognizable actors within the virtual world.

 

[1] "Global revenue for games is $20 billion higher than the music industry's and is chasing that of the movie business." In E-Sports, Video Gamers Draw Real Crowds and Big Money, The New York Times, (Aug 30, 2014), http://www.nytimes.com/2014/08/31/technology/esports-explosion-brings-opportunity-riches-for-video-gamers.html.

[2] T.L TAYLOR, RAISING THE STAKES: E-SPORTS AND THE PROFESSIONALIZATION OF COMPUTER GAMING (The MIT Press 2012) (discussing the odd concept of picking out a favorite professional computer gamer.).

[3] League of Legends Now Has 27 Million Players Daily (Jan 29, 2014), http://www.ign.com/articles/2014/01/29/league-of-legends-now-has-27-million-players-daily

[4] Of note, unlike other video games players do not customize their champions.

[5] "Today, most professional players skip or delay college, because the college age years are considered the prime period for players in the big leagues."  E-Sports at College, With Stars and Scholarship, The New York Times, (Dec 8, 2014), http://www.nytimes.com/2014/12/09/technology/esports-colleges-breeding-grounds-professional-gaming.html

[6] Id.

[7] See supra note 1.

[8] LEAGUE OF LEGENDS, http://na.leagueoflegends.com/en/news/esports/esports-editorial/one-world-championship-32-million-viewers.

[9] ON GAMERS, http://www.ongamers.com/articles/league-of-legends-2014-world-championship-viewer-n/1100-2365/

[10] 27 Million people watched the 'League of Legends World Championship, USA TODAY, http://ftw.usatoday.com/2014/12/league-of-legends-worlds-viewership-esports-world-series-nba-finals.

[11] Broadcasts are typically conducted in an arena

[12] In 2013 the Staples Center was sold out for the LCS finals. FORBES, http://www.forbes.com/sites/insertcoin/2013/08/24/league-of-legends-finals-sells-out-las-staples-center-in-an-hour/.  In 2014 the World Championship was held in Seoul's sold out World Cup Stadium.

[13] THINKPIECE, http://thinkpiece.gg/first-blood-14-richard-lewis-esports-lawyer-bruce-blum/ (Last viewed March 3, 2015).  Richard Lewis, How Fair Is an LCS Contract, DAILYDOT, http://www.dailydot.com/esports/lcs-contract-analysis-league-of-legends-riot-games/. California Civil Code §3344;  New York Civil Rights Law §50, 51.  "Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided [in section 50] may maintain an equitable action."

[14] CORNELL LAW, https://www.law.cornell.edu/wex/publicity (Last viewed March 3, 2015).

[15] Oliver A. Khan, Me Myself and My Avatar: The Right to the Likeness of our Digital Selves, 5 I/SL J.L & POLICY FOR INFO. SOC 447 (2010).

[16]   "Unless prohibited by law, I hereby grant to the League and the other Riot parties unlimited permission to use, alter, edit, or modify my name, tag, nickname, initials, likeness . . . in an and all present and future media, worldwide, in perpetuity, in connection with the Season, tournaments, the Game, the Riot Parties, and/or the sale, publication, display, promotion, advertising. . . . I agree that I will have no right to inspect or approve the Advertising.  I understand and agree that I will not receive compensation, fees, royalties, or any other form of payment."  LEWIS, supra note 13.

[17] ESPORTS PLAYER CONTRACTS, http://www.foster.com/documents/playercontracts_definingexpectionstoavoidconflict_.aspx (last visited March 3, 2015).

[18] ESPORTS SPONSORS, http://fortune.com/2014/07/24/esports-sponsors/ (last visited March 3, 2015)

[19] Lebron James is sponsored by Upper Deck, Dunkin Donuts, Coca Cola, McDonalds, Nike and Samsung. http://www.forbes.com/profile/lebron-james/. Forbes estimates that LeBron James has earned $326 million from endorsement deals as of September 2014.

[20] LEWIS, supra note 13.

[21] Bryce Blum, Collective Bargaining, http://www.foster.com/documents/collectivebargainingwhitepaper-fosterpepper.aspx (Last visited March 3) (Bryce Blum discusses the importance of collective bargaining).

[22] NHL COLLECTIVE BARGAINING available at http://www.nhl.com/nhl/en/v3/ext/CBA2012/NHL_NHLPA_2013_CBA.pdf. 

[23] See supra note 18.

[24] LEAGUE OF LEGENDS WIKIPEDIA, http://lol.gamepedia.com/Doublelift (Last visited March 3).

[25] Intel Advertisement featuring Double Lift, http://i.imgur.com/B1U2Vwu.jpg (Last visited March 3, 2015) (displaying Double Lift’s team’s logo).

[26] Susannah M. Rooney, Just Another Brown Eyed Girl: Toward a Limited Federal Right of Publicity Under the Lanham Act in a Digital Age of Celebrity Dominance, 86 S. CAL. L. REV 921, 928 (2013) ("The tragedy of the commons theory views publicity as a resource that can be diluted or even destroyed by overuse, and seeks to protect the original owner from such a loss in value").

[27] Id.

[28] Wendt v. Host International Inc., 125 F.3d 806, (9th Cir. 1997). In Wendt v. Host International Inc. two actors who appeared on Cheers challenged their inclusion in Cheers themed bars of animatronic figures resembling their television characters. See White v. Samsung for a discussion of overprotecting intellectual property rights see dissent.

[29] Id.

[30] Whether the avatar belongs to the game’s owner is discussed infra.

[31] Hirsch v. S.C. Johnson & Son, Inc., 90 Wis.2d 379 (1979)

[32] Id.

[33] See also Ali v. Playgirl, Inc., 477 F.Supp 723(1978) (identifying Muhamad Ali by his nickname the greatest).

[34] League of Legends Terms of Use Agreement (Last Modified: October 23, 2012), http://na.leagueoflegends.com/en/legal/termsofuse (Last visited March 3, 2015).

[35] Id.

[36] See supra note 22.

[37] See supra note 15.

[38] LEAGUE OF LEGENDS, http://www.leagueoflegends.com.

[39] Tyler T. Ochoa, Who owns an avatar? Copyright, Creativity, and Virtual Worlds, 14 VAND. J. ENT. & TECH. L. 959 (2012). City of Heroes, an MMORPG has several trillion different combinations of potential player avatars.

[40] Id.; In Bragg v. Linden Research an ingame virtual transaction was the subject of the lawsuit.  Linden sought to enforce the arbitration agreement found in the terms of use but the contract was found to be unconscionable.

[41] Ochoa supra not 39, at 965 n.31.  “You retain any and all Intellectual Property Rights you already hold under applicable law in Content you upload, publish, and submit to or through the Servers, Websites, and other areas of the Service, subject to the rights, licenses, and other terms of this Agreement ....”)

[42] Id.  This poses an interesting copyright question which is addressed in Ochoa’s note. The design options might ultimately be considered licensed to the players.  If such is the case any avatar might be considered a derivative work or a compilation entitling the player to the specific arrangement of the design elements.

[43] See supra note 15. No Doubt was displayed in a video game playing songs they did not write.  They successfully brought a publicity lawsuit.

[44] Hirsch, 90 Wis.2d 379.

[45] Id.

[46] THINKPIECE, supra note 13.