Are Game Streamers Infringers?
Oct 20, 2024 | Law Student Blog,
By Kevin Xu, Washington University in St. Louis School of Law, Juris Doctor Candidate, 2026
Video game streaming is a thriving business. With a computer, or even a cell phone, anyone can stream and play all kinds of video games. Twitch, the world’s leading live stream platform for gamers, has over 7 million active streamers. Many streamers also record and upload their streams. If you go to YouTube, you can find millions of videos covering virtually every aspect of any somewhat popular game. It’s so common that most people don’t give it a second thought, but isn’t this some sort of copyright infringement?
There is no doubt that game companies own copyrights in their video games. Game developers obviously care a lot about protecting their intellectual property, and they use a variety of methods to prevent piracy. For instance, many modern games use Denuvo, an anti-piracy system that requires persistent Internet connection, even though many of those games are off-line single-player games. So, is game streaming just another form of infringement? If so, why do game companies allow it?
Technically, it is possible for streaming to constitute copyright infringement. Section 106 of the Copyright Act sets forth the “bundle of rights” that an owner of a copyrighted work enjoys, which includes the exclusive right to reproduce the copyrighted work, distribute copies of the copyrighted work, publicly perform the work and to create derivative works based on it, etc. Streaming video games and publishing the recorded stream online could certainly implicate these rights of the copyright owner.
However, that does not mean all streamers are infringers. The most prominent defense to potential copyright claims in this scenario would be fair use, which is a legal doctrine that allows limited use of copyrighted material without permission from the copyright holder, usually for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. When determining if a work is fair use, courts consider several non-exhaustive factors including the (1) purpose and character of the use; (2) nature of the copyrighted work; (3) amount and substantiality of the use, and (4) effect on the potential market for or value of the copyrighted work.
It is unclear whether video game streaming would constitute fair use under copyright law. One could argue that streaming or using games to make video content is transformative use, meaning it adds new expression, meaning, or message to the original work, which makes it more likely to qualify as fair use. On the other hand, many content creators make videos for profit, which weighs against fair use.
Another possible defense to potential copyright infringement claims is equitable estoppel. This doctrine provides that a party cannot deny or assert a fact that is inconsistent with their previous representation or action. If a game developer is aware of streaming activities and yet does nothing about it, streamers would essentially be relying on the developer’s non-action to continuously stream the game and build their career. In that case, it could be argued that the developer cannot later selectively enforce their copyright against a particular streamer.
We do not know whether these arguments are likely to be successful in court. It’s hard to find rulings that establish precedents because game companies rarely go after streamers and YouTubers claiming infringement. That may be because video games, unlike movies, are designed to be played rather than watched. If a viewer has already watched a movie or TV series for free, they most likely would never pay for it in the future. In contrast, a viewer who watches the streams of a game is still very likely to go play and pay for the game. So, game streaming serves as advertising for the game companies.
In fact, it is not uncommon for game companies to pay streamers to play their games. A famous streamer, xQc, once revealed that he was offered $200,000 to stream his playing of the game Genshin Impact for three hours. Most game streamers don’t get paid by the game developers though, and they are basically advertising the games for free. Allowing gameplay streaming also helps build a thriving game community, which can in turn help the game gain popularity and generate more revenue. It’s hard to imagine a game company would really benefit from trying to stop those streams.
Some developers have taken actions to resolve this potential issue and avoid any confusion. Quite some games nowadays have included licensing language in the end-user license agreement or terms of service, providing individuals with a revocable license to stream the games with certain exceptions and reservations. For example, Riot Games permits individual players to stream their games even if it is for profit, so long as non-paying viewers can still watch the games concurrently. Through this kind of arrangement, the companies could reassure streamers that they won’t get into trouble, while still preserving control over their intellectual property. Moreover, many new games have included a dedicated “streamer mode,” which helps streamers comply with the policies of various platforms and laws of different countries. In some cases, the streamer mode replaces copyrighted music in the game, allowing content creators to avoid potential copyright issues.
For now, there seems to be a happy unwritten — or on some occasions written — agreement between streamers, content creators, and video game copyright owners. However, just because game developers allow streaming doesn’t mean they are as tolerant with other forms of game content usage. If you want to do something with a game developer’s intellectual property, it’s always best to look up the company’s terms of service (or even better, consult a lawyer), especially when you intend to make a profit.
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