Is Playing a Video Game on YouTube a Public Performance?

Author: Jing Zhao

In October 2017, Epic Games sued Konstantin Vladimirovich Rak and two other individuals.¹ You may have never heard of Epic Games, but you have likely heard of Fortnite – an online battle-royale game that has become widely popular among the teen and pre-teen populace. Epic Games is Fortnite’s developer and publisher.

The Defendants in Epic Games’ lawsuit created software cheats that allowed players to modify Fortnite to give themselves competitive advantages—known as “cheats” in gaming parlance—over other players. Mr. Rak then created and posted a video on YouTube to advertise his cheats. The video features gameplay and a demonstration of the cheat in action. This was the hook Epic Games needed. In its lawsuit, Epic Games alleges copyright infringement by accusing Defendants of “displaying Fortnite publicly without Epic’s permission.”²

The copyright violation Epic Games refers to is based on 17 U.S.C. § 106(4), which states “[the owner of copyright under this title has the exclusive rights to do and to authorize] in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly.”³

On Epic Games’ Motion for Default Judgment, the United States District Court for the Northern District of California touched upon the “fundamental question of whether playing a video game and posting footage of that gameplay to YouTube, constitutes ‘perform[ing a] copyrighted work publicly’ for the purposes of 17 U.S.C. § 106(4) in the first place.”⁴ While the Court declined to make a ruling, it did not grant default judgment to Epic Games.⁵ By late 2018, Epic Games voluntarily dismissed this case.

This raises the question: is playing a video game and posting it online for others a public performance that violates copyright?

In 1989, the Fourth Circuit Court of Appeals in Red Baron-Franklin Park, Inc. v. Taito Corp., found an arcade infringed a video game company’s copyright on a video game when the arcade purchased the video game circuit boards without consent for use in its arcades. The court ruled that video games qualify as an “audiovisual work” as defined by 17 U.S.C. § 101⁶ and a performance upon activation.⁷ Thus, the court concluded that playing the video game in an arcade constitutes “public performance.”⁸

In 1996, in Allen v. Academic Games League of America, Inc., a game developer for board games sued a nonprofit organizer of a tournament for students playing the board game.⁹ The plaintiff alleged the organizer violated his 17 U.S.C. § 106(4) right to publicly “perform” his games. The Ninth Circuit Court of Appeals affirmed summary judgment in favor of the defendant, holding “the interpretation of ‘play,’ as used to define ‘perform’ in § 101 of the Copyright Act, has generally been limited to instances of playing music or records.”¹⁰ The court refused to extend the term “play” to “the playing of games” because “[t]o 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.”¹¹

In 2004, in Valve Corp. v. Sierra Entertainment, Inc., the game developer and publisher Valve sued another game developer and publisher Sierra Entertainment for breach of a software publishing agreement involved in Sierra Entertainment’s distribution of Valve’s game in a cyber-café.¹² The District Court for the Western District of Washington addressed, in passing, the right to publicly perform video games. Rejecting Sierra Entertainment’s reliance on Allen in its argument that playing video games in public is not a public performance, the court interpreted Allen’s ruling as “whether the performance is fee-based is an important factor in determining whether the performance is public.”¹³ The court declined to make a definitive ruling on whether playing video games constitutes a public performance, but noted “Red Baron involved the same ‘pay-for-play’ gaming transaction that is at issue in this case [involving playing a video game in a cyber-café].”¹⁴

In 2010, in Miller v. Facebook, Inc., the plaintiff is Miller, a software developer and owner of the copyright of a video game called “Boomshine.”¹⁵ Miller sued an individual, Yao Wei Yeo, who unlawfully reproduced the “look and feel” of Miller’s game and distributed the game, under the name “ChainRxn,” through Facebook.¹⁶ The United States District Court for the Northern District of California held that “Yeo’s alleged publication of the ChainRxn video game for play by Facebook users constituted a public performance of plaintiff’s copyrighted work under 17 U.S.C. § 106(4). Just as Congress considered the ‘reading a literary work aloud’ as a performance rather than display of a literary work, the reading of Boomshine’s copyrighted source or machine code by a computer (resulting in the presentation of the video game to the user) could be seen as an analogous performance of the underlying work. Admittedly, this area of the law is still developing.”¹⁷

Under these authorities, it would appear that the Fortnite-cheat video may be a public performance because it involves a pay-for-play gaming transaction. Not only did Mr. Rak publish his video with the intent to sell his cheat software, but each click of his video on YouTube also generates profit. Thus, the profit-driven nature of the video may place it in within the reach of 17 U.S.C. § 106(4).

About the author: Jing Zhao is a registered patent attorney and a member of Gordon Rees Scully Mansukhani’s Intellectual Practice Group. Ms. Zhao has a degree in computer science, and her practice focuses on commercial litigation, employment law and intellectual property, with a special interest in emerging legal issues in the eSports industry. Ms. Zhao’s biography can be found here.
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¹ Epic Games, Inc. v. Mendes, Case Number 3:17-cv-06223-LB, U.S. District Court for the California Northern District (San Francisco).
² Epic Games, Inc. v. Mendes, Case Number 3:17cv6223, Complaint, ¶9.
³ 17 U.S.C. § 101 defines what it means to “perform a work” as “to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.” 17 U.S.C. § 101 also defines “public” performance as “(1) to perform or display 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; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”
⁴ Epic Games, Inc. v. Mendes, 2018 U.S.Dist.LEXIS 98719, at *19-20 (N.D. Cal. June 12, 2018) (edits in original).
⁵ Id. at *22-23.
⁶ Red Baron-Franklin Park, Inc. v. Taito Corp, 883 F.2d 275, 278 (4th Cir. 1989).
⁷ Id. (citations omitted) (“the television monitor displays a series of images and the loudspeaker makes audible their accompanying sounds. The exhibition of its images in sequence constitutes a ‘performance’ of an audiovisual work. Indeed, it is the sequential showing of its images that distinguishes the ‘performance’ of an audiovisual work from its ‘display,’ which is defined as a nonsequential showing of individual images”).
⁸ Id. at 278-79.
⁹ Allen v. Academic Games League of Am., Inc., 89 F.3d 614 (9th Cir. 1996).
¹⁰ Id. at 616 (citations omitted).
¹¹ Id.
¹² Valve Corp. v. Sierra Entm’t, Inc., 431 F.Supp.2d 1091 (W.D. Wash. 2004).
¹³ Valve Corp., 431 F.Supp.2d at 1097.
¹⁴ Id.
¹⁵ Miller v. Facebook, Inc., 2010 U.S.Dist.LEXIS 61715, at *1-2 (N.D. Cal. May 28, 2010).
¹⁶ Id. at *2.
¹⁷ Id. at *14 (citing H.R. REP. NO. 94-1476, at 63 (1976)).