The law defines e-sport as “a video game competition [that] pits two or more players or teams of players against each other for a score or victory”[1].
Many games are played competitively, including the best known League of Legends (Riot Games), Counter-Strike 2 and DotA 2 (Valve Corporation).
E-sport is a unique object of law. Its competitive nature could raise questions about the implementation of the general rules governing sporting events. However, these rules seem to be excluded, in favour of the classic rules of intellectual property law. This ecosystem is therefore based on a contractual construction, which requires particular vigilance in the clauses they contain.
1/ Events excluded from the monopoly guaranteed by the French Sports Code
The organiser of a traditional sporting event enjoys a monopoly over the exploitation of said event, guaranteed by article L.333-1 of the French Sports Code. That person alone is entitled to garner profits the event.
This article of the French Sports Code applies (i) to sports federations and (ii) to organisers of sports events involving a sport for which a delegation of power has been made by authority of the Minister of Sports[2]. It therefore only applies to sports disciplines and not to e-sports disciplines, which are excluded.
Indeed and to our knowledge, no single federation has received a delegation of power by the Minister of Sport for video game competitions.
Under these conditions, the rules for organising such an event, as well as rights surrounding it, are based on the traditional rules of intellectual property law.
2/ Implementation of traditional rules of intellectual property law
A video game publisher may have intellectual property rights over it.
It is widely accepted that a video game is a complex work, protected (if it is original) under French and European law by author’s right[3].
The game publisher may also have registered trademarks or designs for certain graphic elements of the game.
Reproducing these elements without permission from the rights holder is likely to be considered infringement.
Even if the game is made available to players free of charge, or purchased by them, classic end user licences do not cover the use over the course of a competitive event organised for commercial purposes.
Most of the time, the rights granted by these licences are limited to non-commercial purposes. This is the case, for example, with the licence for the League of Legends game, which states that Riot grants the player a “limited, non-exclusive, non-transferable, revocable licence to use and enjoy the Riot Services (and any Virtual Content) for your personal, non-commercial, entertainment purposes only”[4].
French case law considers that exceeding the terms of a licence would constitute an act of infringement[5].
If the publisher is also the organiser of a sporting event, there is no problem. The publisher is free to exploit its intellectual property rights as it sees fit.
However, when the organiser is a third party, this legal situation will require obtaining permission from the publisher to reproduce the protected elements, for the specific needs of the planned event. Otherwise, there is a risk of infringement proceedings being brought against the organiser by the publisher.
3/ Licences for the organisation of competitive events
In order to promote the distribution of their video games, publishers make standard licences available to potential organisers of esport events.
Riot Games, for example, provides different types of licence for its League of Legends game, depending on the type of tournament[6]:
- A ‘Small Tournament Licence’ for smaller tournaments;
- A ‘Medium Tournament Licence’, for medium-sized tournaments;
- A ‘Multi-School Tournament Licence’, for inter-university tournaments; and
- A ‘Major Tournament licence’, for organisers of large-scale professional tournaments organisers, for which esporting events are their main activity.
Each licence has specific contractual terms and conditions, depending on their main purpose. The publisher exercises considerable control over them.
In return for authorising the use of its intellectual property rights, the publisher has the right to monitor, among other things:
- The structure of the tournament (duration, competition format, etc.);
- The tournament schedule (the dates of which must not coincide with those of events organised elsewhere by the publisher);
- The financing of the tournament (in particular, the number of sponsors who may participate, sponsors whose participation is prohibited by nature, the maximum amount authorised for their participation, the way in which their name may appear in promotional material);
- The communication surrounding the event (in particular, the use of specific terms used by the publisher in the organisation of its own events is sometimes prohibited: ‘Championship’, ‘Champions’, ‘Season’, ‘League’, ‘Division’ or others);
- Terms and conditions for broadcasting the tournament on different streaming platforms;
- Terms and conditions for the marketing of merchandising products.
Valve Corporation offers a similar system of pre-established licences[7]. This licence includes, for example, the right to reproduce Valve Corporation’s intellectual property for the purposes of organising the tournament, promoting it, or distributing/broadcasting the tournament online.
These licences are similar to adhesion contracts, where the organiser submits his event project to the publisher, who will them decide to authorise or refuse it depending on the proposed terms and conditions. There is little room for negotiation by the organiser.
For the most ambitious tournaments, publishers already provide the possibility for the organiser to benefit from tailor-made licences, as close as possible to their needs. These contracts will therefore require detailed analysis to ensure that they are used in accordance with the organiser’s needs, in all areas covered by the contract.
[1] Article 101 of Law no. 2016-1321 of 7 October 2016.
[2] Articles L.331-5 and L.131-14 of the French Sports Code.
[3] ECJ, Case C-355/12, 23 January 2014, Nintendo.
[4] https://www.riotgames.com/en/terms-of-service#id.2jxsxqh, visited on 13 November 2024.
[5] Cour de cassation, 5 October 2022, 21-15.386; followed by Cour d’appel de Paris, 14 February 2024, 22/18071.
[6] https://riot.eurcommunitycompetition.com/games/league-of-legends/guidelines, visited on 13 November 2024.
[7] https://store.steampowered.com/tourney/limited_license, visited on 13 November 2024.