A Twitch In Time: Legal Issues Catch Up With Popular Game-Broadcasting Platform

As Twitch and its broadcasters continue to take over the hearts and minds and screens of people the world over, these legal questions, and others, will continue to foment in ways that dowdy old Super Mario could never have imagined.

Do you even Twitch, bro? Readers of a certain vintage will find the preceding sentence to be all but impenetrable, but to the millions upon millions of young (and young at heart) folk that spend the vast majority of their disposal downtime propped up in front of screens of various sizes, watching others play video games, it is part of a lingua franca.

Twitch Interactive, Inc, like most things of value in the year 2018, is owned by Amazon and located on the internet. Over 15 million gamers and voyeurs tune in daily to watch live and archived videos streamed and posted by the site’s broadcasters, most of whom are video gamers of varying levels of talent and idiosyncratic charisma who broadcast videos depicting their playing of a particular video game, often with running commentary. It is, in many ways, an updated online version of that ruse you used to play on your younger brother or sister while sitting in front of your cathode ray tube television: “We are a team, I will monopolize the video game controller and play the game without interruption for hours and your job, which is a very important role, is to watch me do so.”

Twitch actively monitors is broadcasters, and, as one recent case noted “evaluates individual broadcasters’ popularity by tracking, among other things, how many people view the broadcaster’s stream, and rewards popular broadcasters by sharing revenue through its Partnership Program.” With millions of people watching streamers play their chosen games on a daily basis, these revenues are not insubstantial, and the content industry has taken notice of the incipient buzz surrounding Twitch and the various personalities reaping fame and profits on its platform.

The buzz became a roar once it was revealed that Tyler Blevins, known to his online audience as “Ninja” and the guy that whupped soft-core rap superstar Drake at the mega-popular Fortnight game, was realizing up to $500,000.00 per month by having his fans to tune in online to watch him tote around a very large weapon and bludgeon those of his adversaries with the misfortune of stumbling into the wrong copse. Per month! Not bad for a fellow in his late 20s who doesn’t necessarily have to put on pants to do his job.

Of interest to attorneys are the intellectual property rights embedded in Blevins’ and other streamers’ ever-unspooling tidal wave of content. With armies streamers broadcasting live on a 24/7 basis, the amount of material (copyrightable and otherwise) being published online is so massive it boggles the mind. And the question of who owns that content and what liability might attach when the content incorporates third-party works are still open questions.

Back in June, a stir was raised when a number of popular Twitch streamers were served with Digital Millennium Copyright Act takedown notices alleging copyright violations. Per the takedown procedure, material that an artist claims infringes its rights is removed from the platform upon valid notice. The streams and archived videos at issue in the Twitch notices were removed from the platform and the streamers were given a 24-hour timeout. The apparent reason: the streamers were broadcasting without consent a musician’s songs as a soundtrack to their monetized gaming videos.

From a technical standpoint, the notices had merit. The Copyright Act, at 17 USC 106(4) grants an author the exclusive right “to perform the copyrighted work publicly,” and 17 USC 106(5) grants a similar exclusive right to “display the work publicly,” and, finally, 17 USC 106(6) provides authors of sound recordings the exclusive right to “perform the copyrighted work publicly by means of a digital audio transmission.” So, the statute does not equivocate when recognizing the rights of musicians to oversee the exploitation of their work.

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In a bygone era, musicians might have relished the exposure that would come with having their songs heard by millions of captive audience members. But, this is 2018 and exposure will not pay for your food truck sushi-rrito. The musicians, like most content creators, wanted to be compensated for the use of their work.

With some streams having more viewers than a theatrically released motion pictures, musicians have been asking why the latter should pay license fees and the former should not. In a perfect world, the streamers who are monetizing their visual content in combination with an artist’s music would obtain a music synchronization or master license, which would allow the streamer to pair that music with the video game sequences.

It also would not be an insurmountable challenger for Twitch to negotiate licenses with the various performance rights organizations, labels, and artists behind the music and to offer that licensure to its broadcasters. In addition, the more prominent streamers, like Blevins (who apparently has already reached out to musicians and negotiated agreements) could easily connect with the artists that provide the soundtracks to their streams and share a small percentage of the revenues. This would allow the musicians to create new tunes for the streamers to play during upcoming gaming sessions. Total win.

These claims have not yet reached litigation. Indeed, Twitch has mainly stayed out of the courts, venturing into the morass only, for example, to shut down a crew that “operated bot services that falsely inflate usage in order to deceive Twitch into believing that certain broadcasters are more popular than they really are.” This crew, as you might imagine, was quickly dispatched.

Other conflicts that have arisen have centered on certain Twitch broadcasters grabbing another’s content and reposting it to boost views, streams, and revenue. These claims have also avoided litigation, but they raise the fascinating question of who-owns-what given that the company that created the video game clearly has an ownership claim to the original source code and the visual art comprising the game. And the streamer playing the game may also own copyrights in the configuration or total look and feel of the visuals to the extent they reflects their particular expression in the form of how the game has been played. And the recorded commentary broadcast by the streamer would be subject to further protection.

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There are also questions as to whether a sequence of game moves as performed by a player is like choreography and thus protectable or like an exercise routine and thus less likely to be protectable. And there has been no definitive answer as to whether playing a game “fixes it in a tangible medium” as is required for copyright protection. But, rest assured that as Twitch and its broadcasters continue to take over the hearts and minds and screens of people the world over, these legal questions, and others, will continue to foment in ways that dowdy old Super Mario could never have imagined.


Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.