Streamer Consigliere Part III — Copyright

ACbullman
ACbullman
Aug 25, 2017 · 20 min read

Welcome back to Streamer Consigliere, part three of the epic trilogy, providing helpful information about some of the legal aspects of Destiny (or any video game for that matter) content creation. But first, an important disclaimer. I am an attorney licensed to practice law in the State of Michigan, but I am not your attorney. This article is solely meant to provide helpful information; it is neither an advertisement for my services nor is it legal advice. I am not your attorney, and nothing in this article is intended as legal advice. Additionally, this information is specifically regarding laws of the United States. I would highly recommend you consult your own attorney for your own situation, but that person is not me.

So in my past Streamer Consligiere articles, Part I and Part II, I discussed what you need to know as a content creator in the world of gaming when it comes to starting a business and trademarks. Now for one more area you should know about, one that is both important and fundamentally misunderstood on many levels — copyright law. Copyright is everywhere around you when you’re dealing with streaming, podcasting, YouTubing, graphic artistry, or just some person like me writing about all that stuff. And everyone has an opinion about what it is. And they voice them loudly. And it’s so painfully clear that the claimed expertise of many is the summation of one page of a simple Google search.

Don’t get me wrong, I don’t blame them for not grasping all the nuances of copyright law. It’s a huge mess. Copyright considerations are constantly swarming around you as a content creator, and the only thing worse than not understanding them is sticking your head in the sand and pretending they’re not there. So all aboard, let me guide you through some of these uncertain waters so you have a little bit of a clearer understanding of what is going on.

What are Copyrights?

To dumb it down to the absolute essentials, a copyright is the exclusive right to make use of an original work of authorship fixed in any tangible medium of expression. Write that down.

Okay, you don’t have to write it down, but that language is one of those things that lawyers will commit to memory if they live in the world of copyright. It’s kind of like the hearsay rule for lawyers. Any lawyer who has been in a courtroom litigating a case can rattle the definition off the top of their head: it’s an out of court statement offered to prove the truth of the matter asserted. I know you’re probably falling asleep right about now, but it’s a crucial thing for a litigator to know because they will have to address a hearsay objection on the spot, think quickly on their feet, and explain why their evidence shouldn’t be kicked out of the case. And it starts with that definition. Not everything is excluded as hearsay just because it was said out of court.

The definition of a copyright requires the same quick analysis. Not everything is a copyright just because it is an original work. Not everything is a copyright just because it is fixed in a tangible medium of expression.

Let’s start with the most basic. Do you have a sweet idea for a new raid or exotic weapon? Good for you. Your idea is not copyright protected because it’s not fixed in a tangible medium of expression. It’s not written as a literary work of authorship or designed as a pictorial work. It’s nothing more than an idea, and things bouncing around in your head cannot be copyrighted. If you can’t read it, see it, or hear it, it’s not a copyright. That’s an easy one.

But there is also a creative element to copyright that cannot be ignored. More accurately, it’s called the “useful article doctrine,” and it looks at whether a work is meant to be functional (do stuff) or aesthetic (look pretty, or ugly, or funny, or scary, or whatever). Copyrights are all about being aesthetic, not functional. Just because you wrote something down and other people can read it does not mean you own it as a copyright. Whatever you wrote has to have a basic and inherent level of originality to it.

This leads me to a situation that developed back in January after ESL announced a “Destiny Cup” tournament listing rules of engagement that were strikingly similar to the same rules painstakingly crafted and curated by the Destiny sweat community. Some people felt it was copyright infringement and that some credit was owing, and cried foul. ESL later gave a shout-out to the rules writers to smooth things over, but it nonetheless begs the question: was there a copyright violation here? The answer is not so simple, but the question always begins with whether the work in question was a copyrightable work in the first place. You can’t just assume there’s a copyright because the sweat rules were written down. And in this case it comes back to the useful article doctrine.

Let’s take a look at those rules:

If that’s too hard to read, you can check out the sweat rules here and the ESL tourney rules here.

Yeah, they’re pretty much the same exact thing. Same team formats, same banned exotic weapons, same ammo restrictions. It’s either one hell of a coincidence, or ESL simply lifted the sweat rules and dropped them into their tournament. But are the sweat rules copyrightable material in the first place? That would ultimately be an issue for a court to decide, but given the current state of the useful article doctrine as it develops in the gaming industry, I think it would be a difficult case to make. There’s just not enough about the sweat rules to make them aesthetic or an independent creative work; they’re just a specific methodology to playing the game.

I’m not trying to devalue the effort put into the sweat rules or say that those responsible for writing the sweat rules (I understand it to be FarCog and Fallout) don’t deserve recognition. They certainly do, and it certainly was a less than humble move for ESL to use the same exact rules and slap their own copyright notice at the bottom of the page. You can probably guess where I think they should stick that notice (it’s a body part) and where I land on the copyrightability of their rules as well. But I don’t think a judge would allow it copyright protection. Who knows, I could be wrong, but it serves as a great example that, even when you have a valuable and worthwhile idea and fix it to a tangible medium, there’s a lot more that still has to be looked at to have a copyright.


So where does copyright protection typically exist? Here’s the list of usual suspects as identified by copyright law:

  • Literary works
  • Musical works
  • Dramatic works
  • Choreographic works
  • Pictorial, graphic, and sculptural works
  • Motion pictures and other audiovisual works
  • Sound recordings
  • Architectural recordings

A work doesn’t have to fit into just one of those categories, but can use a little bit of column A, a little bit of column B, and a dash of column D. Like video games. Notice that it doesn’t say video games on that list? How is Destiny copyright protected then? Let’s take a look at that sexy new launch trailer:

Well, it’s literary work; thousands of lines of code are written into a computer program that you read as Cayde-6 holding a chicken. You’re also watching Cayde-6 sitting there holding a chicken and talking about sandwiches, so it’s an audiovisual work. And you heard Cayde-6 talking in that Nathan Fillion voice and the chicken clucking, so there’s audio recordings in there too. All of those copyright elements come together to form what we experience as Destiny.

Do I Have Copyrights as a Content Creator?

Yes. I don’t even know who you are. But probably yes. In the world of creative content for video games, you are most certainly producing original content that the community sees and hears. Copyrights exist at the moment they are created. So yes, you likely have copyrights if you are creating new and original content and putting it out there for your audience to enjoy.

When it comes to new technology and platforms like Twitch, it can get messy. Let’s take a look at your average, garden variety Twitch streamer and go through the copyright protected aspects of the stream:

Okay, so that’s not your average streamer. That’s high-octane violence, speed, and momentum. That’s the “two-time.” But if the Doc is good for one thing on this topic, it’s emphatically highlighting the creative elements of a stream that make it a copyrighted work.

Looking at what makes a stream copyright protected is very similar to any broadcast of a sporting event. If I’m watching my Detroit Lions on Sunday, Fox or CBS is telling the story. They’re picking the camera angle I view the game from. They provide closeup shots, slow motion replays, and a fancy yellow line on my screen so I know where the first down marker is. They provide commentary and talk about what is happening in the game (preferably anybody but Joe Buck). They display graphics on the screen to tell me the score, clock, down and yards-to-go, and so on. That all amounts to a copyrighted broadcast.

The same audiovisual presentation is what creates copyright protection for a streamer. The Doc is choosing the player, the strategy, and camera angles. The Doc is providing commentary on screen with himself against a green screen in the bottom left-hand corner of the screen. His Twitch overlay graphics tell me recent donations and notify me of new and re-upped members of the Slick Daddy Club. All of this comes together as an audiovisual presentation of gameplay that constitutes a copyright-protected work.

It’s Fair Use! Come at Me Bro!

Fair use is one of those things that is often shouted from rooftops. Unfortunately, 99 times out of 100, that person on the rooftop doesn’t really have a handle on what fair use is. They just yell it really loud.

I’ve heard a lot of people try to reduce fair use down to a simple concept. “Fair use is when it’s in the public!” “Fair use is when it’s satire!” “Fair use is when you’re making political commentary!” That’s not how it works. Fair use is a much more fact-intensive consideration that people either know or are willing to admit.

First and foremost, the definition of fair use is written directly into the Copyright Act. Well, a good starting point at least, as it’s not a very “definite” definition. It’s more of a helpful guide. Whether something is fair use for copying and reproduction by third parties is ultimately a call that is made in the courtroom, but the law provides the following four factors:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market for or value of the copyrighted work.

And these aren’t even the only four factors. A court can consider whatever it wants to consider. Even if your copying fits into one (or more) of these categories, that doesn’t mean you are safe. For these reasons, fair use is notoriously unpredictable.

That being said, the most popular forms of fair use out there are parodies of copyrighted work and use of copyrighted work for criticism or nonprofit educational purposes. But shouting “FAIR USE” from a rooftop still doesn’t do much for you. Fair use is an affirmative defense, which means you have to assert it as a defense if you are sued, and you carry the burden of proving to the judge that your copying is indeed protected by fair use. No one ever truly has fair use until they are sued for copyright infringement and win in court on the fair use defense.

In the world of creative content in gaming, there is seemingly endless overlap between everyone’s work. Twitch streamers end up in YouTube videos, Twitch emotes find their way into other Twitch streamers’ broadcasts, and podcasters recite others’ works on their shows. Honestly, the list never ends, but you can’t just sweep all of those general instances together. Each and every individual instance is subject to its very own scrutiny under the fair use factors.

And I would like to again stress that this is fact-intensive. Every situation is unique and every situation is different. Courts have come down on many occasions with rulings that parodies of copyrighted work are fair use. This does not mean that your parody is automatically fair use; even if it is likely fair use, you have to run through the same gauntlet as those who went to court and won.

Enforcement and Registration of Copyrights

As the owner of a copyright, you have the exclusive right to reproduce your work, make derivative works based on the original, distribute copies of your work, perform your work, display your work, and/or digitally transmit your work. Subject to 8 million exceptions. I’m not going to get into all of those right now, but copyright ownership gives you the exclusive right to generally use and control your work.

There is a registration process, but you don’t need to register a copyright to have copyright protection. The vast majority of content creators don’t need to worry about running off and registering their copyrights.

So why do you register copyrights? To sue for copyright infringement — registration is a requirement. Registering your copyright is the first step you have to take if you’re serious about enforcing your copyright protection and want to sue someone for infringement. The only other consideration for registering a copyright, without anticipating an imminent lawsuit, would be if you are putting together your landmark copyrighted work for large-scale commercial exposure and want to have yourself protected up front.

The Digital Millennium Copyright Act

If you’ve read this far, welcome to the main event. The Digital Millennium Copyright Act (DMCA) is ever-present in the world of online creative content. Is it there to protect you as a copyright holder? No. Is it there to protect you as someone using another’s copyrighted work? No. It’s there to protect the middlemen: Twitch, YouTube, Soundcloud, or whatever online platform you are using to push out your creative content.

So what is the DMCA? I like to think of it as a tennis match. On an island. Let me explain.

The DMCA was created back in the late 1990’s to provide a way for all the up-and-coming internet service providers to absolve themselves of any vicarious liability in a copyright war between two users of the service. This thing is old. There was no Twitch at the time. No YouTube. No Discord. I like to think of it as the golden internet age when everyone was talking after school on AOL instant messenger about what happened on MTV Total Request Live (I’m old as shit, aren’t I). But it was also an age where, as the internet grew and grew in technological capability, people were able to easily transmit movies and music for the first time. Movie makers and music makers didn’t like that. So in came the DMCA, and with it a method to more easily regulate online content and for service providers to implement systems to keep themselves free from copyright infringement actions. In theory, everybody wins except the low-down and dirty internet pirates. In reality, not so much.

The DMCA has four “safe harbors” depending on the type of internet service provider:

  1. Conduit Island — for internet pipelines such as Verizon and AT&T
  2. Caching Island — for internet storage servers
  3. HOSTING ISLAND — for stores of specific data at user request
  4. Search Island — for internet search index services such as Google and Bing (or AltaVista, I guess, if you were into AltaVista)

You may have noticed that I threw every possible text modifier on HOSTING ISLAND. If I could put it in Comic Sans font, I would. That’s where all the action is. That’s the island Twitch, YouTube, Soundcloud, and everyone else who matters is on.

So what is hosting island? It’s a safe harbor for internet content hosting platforms to protect them from copyright lawsuits. As long as they’re safely on the island, they aren’t subject to any liability for copyright infringement that happens on their platform. In order to stay on the island, these hosting platforms have to implement and enforce notice and takedown procedures. Specifically, they have to do the following when it comes to a copyright dispute (tennis-style):

  1. Once the hosting platform receives a DMCA notice that content on their hosting platform is infringing upon a copyright, they must remove or disable the content and notify the user who posted it. That’s the serve, and the ball is now in play and in the content poster’s court. The hosting platform is the net by the way.
  2. If the content poster objects to the copyright claim and the hosting platform receives a DMCA counter-notice, they must notify the copyright holder that issued the original notice. That’s the return. Now the ball is back in the alleged copyright holder’s court. This hosting platform is still the net.
  3. If a counter-notice was received, the hosting platform must restore the content in dispute within 10 to 14 days if they do not hear back from the alleged copyright holder. Point, content poster.
  4. If the hosting platform is notified by the copyright holder that a lawsuit was filed before the content is restored, the content stays down. Point, copyright holder.

In the simplest terms, that’s how you protect your copyrights on hosting sites under the DMCA. That’s also how you protect yourself from unjustified takedowns and protect your content under the DMCA. And that’s how YouTube and Twitch play the game and avoid getting hit as the proverbial net for any sort of third party liability. As long as they do what they’re supposed to, they stay on the island and avoid any copyright claims in their direction.

For the hosting platforms, however, there’s also additional things they have to do to avoid getting kicked off the island: they have to be aware of “red flag” knowledge of copyright infringement, and if they do have knowledge of infringement, they have to take steps to remove infringing material. If they let infringement run rampant and sit around waiting for DMCA takedown notices, they risk getting kicked off the island for being too lazy. If they let repeat violators hang around, they risk getting kicked off the island for being soft. If they aren’t arms-length from the infringing content and have some hand in it, they risk getting kicked off the island for being complicit. It’s a very fancy and exclusive island — a lot of rules. That’s why you will see YouTube and Twitch using software to scan content and mute audio, or take other actions against the user like terminating accounts. If they don’t do it, they’re going to get kicked off the island and they’re fair game for a copyright lawsuit. And then you might not have your platform anymore for your creative content. It’s a system constantly teetering on the brink of apocalypse. It’s LOST with tennis, but without the Dharma Initiative. That seems like a fair analogy. Not ridiculous at all.

There’s one more important part of the DMCA to keep in mind. The DMCA procedure requires a sworn statement that you have a good faith belief of your copyright claims when sending a DMCA notice, and the law additionally requires you to pay the other side’s attorney fees if it turns out your DMCA notice was a willful misrepresentation.

People sometimes take this a little bit out of context and claim that the copyright police are going to come crashing through someone’s window for issuing a DMCA notice and take them to jail where they will rot for all of eternity as a convicted criminal. There are no “copyright police.” The odds of someone getting brought up on federal perjury charges for claiming copyright to a YouTube video is laughably low and damn near zero. However, if someone issues a bogus DMCA notice and it costs you attorney fees to fight it, that’s a bill they will have to pay if the court determines they willfully misrepresented their DMCA claim.

Keep in mind, this whole misrepresentation provision does not mean that, just because you get sued out of a DMCA notice and eventually win on fair use, the other guy now has to pay your attorney fees. The standard is subjective good faith to believe they had a claim, so even if the court decides they were ultimately wrong about the copyright claim, the court has to go so far as to conclude that the person actually knew it was a phony DMCA claim before awarding you attorney fees.

But Playing Music on Twitch is Different, Right?

No. Copyrighted musical recordings go through the same ringer as everything else in the DMCA framework. That probably makes you wonder — how is everyone on Twitch playing popular music on their live streams, presumably without a license, and getting away with it? This is a situation where technology is running way faster than the law. It’s a perpetual war that copyright law is always losing, and always will be losing. Technology moves too fast. Congress moves slow as molasses and is full of people who have a million other issues on their plate, don’t know what “a Twitch” is, and are most concerned with taking petty jabs at the other party and running for re-election. Copyright laws will never catch up. They require too much attention to maintain pace with technology and media.

If you think about hosting island and how a copyright holder of music would have to shut down infringement on a live stream, they would have to be impressively fast and be constantly watching your stream or sift through all of your past streams, listening intently through hours of gameplay for any copyrighted music they own. It sounds hopelessly exhausting.

So you think the music industry isn’t watching? Oh no, they’re watching:

What the hell Bullman? Why are you showing me a YouTube video of a dancing baby? AND WHY DOES IT HAVE 1.9 MILLION VIEWS?!?!?

This is the current state of the music industry’s war against use of copyrighted music in online content. You may have heard some background music in this 30-second YouTube video of a dancing baby uploaded by Stephanie Lenz. That was Prince’s “Let’s Go Crazy.” The song’s copyright is held by Universal Music. Apparently, someone was just sitting on YouTube all day watching videos of dancing babies like a complete weirdo and found this. Or maybe it’s because of the fact the video was titled “Let’s Go Crazy.” Lenz claimed that Prince himself was the one who found the video and went to Universal demanding it to be taken down. Maybe he took issue with the baby’s dance moves. I thought they were fine. I just have the thought in my head of Prince sitting around on a Saturday night browsing dancing baby videos on YouTube and brutally critiquing them.

Anyway, Universal Music tracked the video down, added it to their ongoing list of videos slated for execution, and sent YouTube a DMCA notice to have it taken down. Remember my whole “tennis on an island” thing. A takedown notice has been issued, so the ball is in Lenz’s court. Lenz responded quickly by issuing YouTube a counter-notice, and YouTube put it back up. The ball is back in Universal’s court, and YouTube has done their job to stay out of the fray and safely remain on their island. Universal decided not to go forward with a copyright infringement lawsuit, because that would honestly make no economic sense. We’re talking about a video of a dancing baby here.

But Lenz was pissed. She filed a lawsuit against Universal alleging that they violated that misrepresentation clause of the DMCA by ignoring fair use considerations prior to issuing the takedown notice to YouTube. And Lenz won on that argument, and the appeal court agreed. The Supreme Court recently declined to hear the case, setting the ruling in stone for now, so I guess you can say:

The fact that it got to a court of appeals is important, and was a big blow for the music industry. At the trial court level, a decision is binding on those parties involved in the case; but with the Ninth Circuit Court affirming the trial court’s decision, that decision is now binding case law for everyone in the Ninth Circuit (the west coast states) and extremely persuasive case law for any similar disputes in the other states.

So now, according to Lenz v. Universal Music Corp., copyright holders cannot turn a blind eye to the possibility that a copying may be fair use before issuing a takedown notice. If they truly believe the use is fair use, they have no right to issue a takedown notice. It stops there, though. The Court did not find that Universal Music actually believed it was fair use and willfully misrepresented their takedown notice or that Lenz is entitled to damages. Lenz will have to prove that to a jury at the trial, which was put on hold for this appeal.

That case started in 2007. Ten years later, we’re finally getting back down to the trial court, and the trial hasn’t even started yet. In the meantime, Twitch has launched, and has grown, and has scaled, and has been bought by Amazon, and has transformed the way gaming is experienced on the internet. The law can never catch up. That doesn’t mean a music company can’t sue you for using their music on your stream — they most certainly can. They don’t even need to use the DMCA procedure; they can just go ahead and sue you. But they really don’t want to, because they have a lot to lose by fighting a copyright infringement battle: getting hit with bad press, getting hit with the fair use defense, and getting hit with more binding case law from the appeal courts that further solidifies where fair use stands in music. In Lenz, they learned the hard way that picking a DMCA fight with a content creator could do them a lot more harm than what they thought they signed up for.

Twitch, however, is a different story. We don’t want the music industry to sink that ship and take away content creators’ means to stream to their audiences. Twitch isn’t too fond of the thought either, so that’s why they use software to scan archived streams, flag copyrighted music, and mute certain portions of streams. That’s why Twitch reserves the right to suspend or terminate your account if you keep causing problems. If they aren’t putting in the work to reasonably identify copyright infringement and then do something about it, they risk getting kicked off their island. And then they’re fair game. Remember Napster? They got kicked off the island and went bankrupt shortly after (for a lot of other reasons, too, but that didn’t help).

The main takeaway here is that, as a content creator on Twitch, you’re in a very new and uncertain legal landscape when it comes to music. If you’re playing copyrighted music without a license, it’s copyright infringement unless a court grants you protection under the fair use doctrine. And that won’t happen unless you get sued. You probably don’t want to get sued, but the music moguls probably don’t want to sue you either because they don’t want to get drop kicked again in the appeal courts. But they probably wouldn’t mind drop kicking Twitch, so Twitch is going to keep implementing red flag procedures and regulating content creators to make sure they’re safe on their island.

So yes, it’s a giant mess. A Mexican standoff, maybe. But copyright law will never be nice and lined up for content creators because technology just moves too fast for the law. You just have to wade through the waters, know where the risks are, put your work out there, and roll with the punches.

The Bottom Line

The bottom line is that this copyright stuff is difficult to understand, extremely nuanced, and at times unpredictable. But it’s also the law of stuff that content creators and gamers love, so they become justifiably enamored with it. As a result, you get countless people who conduct a simple google search, look at half the random articles on the first page of search results, anoint themselves grand master of all of copyright law, and take to reddit and quickly begin spreading misinformation like wildfire. And it’s an insanely busy and uncertain world for content creators. Hell, as I was in the process of writing this article over the past few days, a court decision came down on the fair use of a YouTube reaction video and a PUBG streamer was publicly crucified and bastardized for issuing a DMCA takedown notice. Copyright battles, victories, and casualties are everywhere, mainly due to the fact that the law sheds practically no light on all the technology and new media formats we use every day.

Technology moves fast, and a whole lot faster than the law can ever hope to keep up with. This is something you need to accept right out of the gate as a content creator. After that, you need to keep a cool head, know and trust your copyright basics, and tune out the white noise of all the so-called “copyright experts” out there who suspiciously misspell it as “copywrite.” Know your DMCA rights. Know your risks up-front as best you can. But don’t let it scare you away from creating your content altogether — copyright is a never-ending war.

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ACbullman

Written by

ACbullman

Editor-in-Chief of The Redjack. Occasional lawyer. Author of Destiny Legal News.

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