Game Over? Influencers, Infringement, and Bans
In the rapidly evolving world of online entertainment, gaming influencers on platforms like Twitch and YouTube have carved out lucrative niches by streaming gameplay to millions of avid fans, with PewDiePie becoming famous enough to transcend streamer media and make an appearance as himself on South Park. These content creators become “influencers,” attain a degree of celebrity, and enjoy considerable financial rewards. However, the very activities that garner them fame and fortune also place them precariously on the edge of legal, EULA, and platform policy boundaries. The increasing scrutiny of their content underlines a growing tension between the creative freedom and instant access that makes platforms like Twitch and YouTube attractive, and the stringent terms of service and copyright laws that govern their behavior and content on them.
Recent incidents have highlighted the pitfalls of this dynamic landscape, with several high-profile gaming influencers finding themselves in hot water over violations, such as breaches of platform guidelines, copyright infringement, and violating end user license agreements (EULA). These missteps not only jeopardize their online presence, but also expose them to legal repercussions and significant financial losses. As gaming influencers navigate the complexities of content creation, they must balance their desire for originality and engagement with the need to adhere to legal and platform-specific regulations. This delicate balancing act underscores the broader challenges faced by the digital entertainment industry as it grapples with the implications of the recent rapid growth in the gaming industry, as well as related industries like influencers on streaming platforms.
The Defining Streamer Lawsuit
For influencers, one of the most obvious issues is at the heart of “fair use” and akin to sampling in music – how much of the original content being commented on can be used? While this is a fact-intensive analysis, the New York Southern District Hosseinzadeh case provides a lot of clarity on the law.
In Hosseinzadeh v. Kleins, also known as the “H3H3 lawsuit,” the court was presented with a legal dispute in which Klein, a streamer on YouTube, streamed a video produced by Matt Hosseinzadeh, with commentary criticizing it. Hosseinzadeh alleged this violated the Digital Millennium Copyright Act (DMCA).
In deciding whether the use of another’s work (in this case, the video) qualifies for “fair use,” an affirmative defense to copyright infringement. Here’s a look at the broad strokes of their 4-factor analysis:
1. The purpose and character of the use (Is it transformative? For profit?);
2. The nature of the copyrighted work (Factual vs. imaginative);
3. The amount or substantiality of the portion used (Is it a large portion? Is it the most important parts of the original work?); and
4. The effect of the use on the potential market for or value of the work
Although no single factor is dispositive on the analysis, the heart of the fair use analysis often falls on the first factor, specifically, does the use of the work change the purpose or character of the use, i.e. by giving it a new meaning or message?
The court addresses this question early in its ruling:
“The key evidence in the record consists of the Klein and Hoss videos themselves. Any review of the Klein video leaves no doubt that it constitutes critical commentary of the Hoss video; there is also no doubt that the Klein video is decidedly not a market substitute for the Hoss video. For these and the other reasons set forth below, defendants’ use of clips from the Hoss video constitutes fair use as a matter of law.”
Keeping in mind that each analysis of fair use is unique to the individual circumstances of the case, this ruling keeps streaming videos with your own commentary on the video in the “fairly safe” category as per the DMCA.
Getting TOS’ed
In addition to understanding the basics of the DMCA and how infringement can result in lawsuits, streamers must be aware of the rules of the platform they are performing on. Violations of the platform's policies can lead to demonetization or even a ban. A ban can be due to abusive behavior, copyright infringement, violent or graphic content, cheating, frauds/scams, spamming, impersonation, and other reasons outlined in the platform’s terms of service.
One player notoriously banned was Izzy Grych, known on Twitch as Pink Sparkles. Pink was banned from Twitch for dancing and promoting sexually explicit materials, which she continues to do on a platform more permissive of such – OnlyFans. Twitch similarly banned several women for violating the nudity and attire policy, such as brianas_w0rld, who was banned for streaming while wearing a string bikini.
Though not always easily understandable to the average gamer, it’s typically worth the investment of time for those looking to make a streaming career to read over the platform policies, i.e., the Twitch Terms of Service and Twitch Monetized Streamer Agreement, to avoid issues.
End User License Agreements (EULA) Violations
Video games have faced some ugly incidents in interactions between players, ranging from unwanted and explicit sexual advances towards minors in youth-appropriate games, to underage girls engaging in sexually explicit conversations for in-game currency, and then selling said currency on the secondary market like eBay, resulting in essentially an underage cyber brothel that was run out of fairly-innocent titles like The Sims.
While any game that has interactions between players and a competent attorney will disclaim such with a warning, those disclaimers do not undo all the damage, and can leave studios with serious legal and marketing liabilities. To limit this, EULAs, which are like a terms of service of a video game, often include codes of conduct between players that can result in bans if they are violated.
One example of such was Tyler Steinkamp, or Tyler1. Tyler1 is a popular influencer who streamed his League of Legends games, and currently has over 8 million followers between his Twitch and YouTube accounts. Tyler’s streaming has broken records, such as receiving nearly 400,000 concurrent viewers on Twitch, breaking its non-tournament viewership record.
However, one of the reasons Tyler broke this record was because it was his first stream after being banned by Riot Games.
Tyler received notoriety by using abusive language towards teammates and intentionally losing, or “feeding,” during games. This led to him being dubbed The Most Toxic Player in North America, and ultimately to the studio for League of Legends banning him in April 2016. This ban would remain in effect until January, 2018.
Tyler earns an estimated $300,000 yearly from merchandise, and $5 million in total during his streaming career. Though the controversy surrounding him is all but undoubtedly adding to his following, it would be reasonable to speculate that, whatever the one step too far for him was, it was ultimately a comment or in-game action that cost him around a million dollars (at least in the short-term calculation).
The Takeaway
Growing a following as a streamer is challenging - wouldn’t we all love to quit our day jobs and just game all day? However, if it were as simple as just gaming in front of a webcam, I assure you I would currently be teabagging as a Junkrat main (or indignantly weeping when my bad karma boomerangs back in teabag form, hopefully not at the hands of Roadhog…) rather than working at a law firm.
The skills of the streamer are important, but it is often controversy or using the content of others to create commentary that elevates even a top-tier YouTube commentator or Twitch gamer well above the following of more skilled creators.
For streamers and content creators, knowing some of the details of the often nebulous copyright laws and platform policies can help them identify the boundaries and keep their videos from being demonetized and accounts from being banned.