Video game law: a new frontier

Even if you’re not a video game fanatic, you’ve probably heard of Fortnite, a wildly popular phenomenon that, since 2017, has become the highest-grossing free video game ever. The game’s success could be attributed to many factors, including its bright graphics, broad accessibility across different platforms, and catchy animation (and equally catchy dance moves).

But according to video game attorney Noah Downs, L’15, a key component of the game’s success is a parallel industry that’s growing just as quickly: livestreaming entertainment.

The concept is simple: Gaming enthusiasts can watch professional gamers play their favorite games — like Fortnite — live, in real time, and through a host of different platforms, such as Twitch, Mixer, and even YouTube. Viewers can support their favorite players through subscriptions or other interactive incentives, and players can take advantage of paid sponsorships and game-play offers from video game producers.

It’s interactive, addictive, and highly profitable — by some estimates, to the tune of $70 billion by 2021. Downs is helping his clients claim a piece of that pie.

A year after earning Richmond Law’s Intellectual Property Certificate, Downs connected with Ninety9Lives, a music label for gamers. Ninety9Lives was growing — including teaming up with a new project called Pretzel, a music solution exclusively for livestreamers — and it needed an IP attorney who was familiar with the landscape.

Downs accompanied his new clients to his first gaming convention, PAX East, in 2016. What he experienced was “eye-opening”: tens of thousands of video game enthusiasts, vendors, designers, and producers, all energized by a passion for gaming.

“I was like a kid in a candy store,” Downs said. “I had a connection with these people — I wanted to be a part of it.”

Beyond his IP expertise and his existing love of video games, what worked in Downs’ favor was the shortage of knowledgeable lawyers in the niche field. When one of his Ninety9Lives clients told him, “We want to teach you how to be our lawyer in this space,” Downs jumped at the opportunity.

Downs has immersed himself in the ins and outs of video game law, from the Digital Millennium Copyright Act to social media endorsements for gamers. The business of game-streaming presents a complicated legal challenge because at its core, “the industry is illegal,” Downs said.

Most of the gamers are streaming content without licensing or explicit permission. But because many video game producers benefit from the streaming industry, they don’t just turn a blind eye — they actually encourage the streamers to play. The constantly evolving landscape of the gaming industry makes it ripe territory for IP and entertainment lawyers.

“This is the Wild West when it comes to entertainment because there’s almost no case law whatsoever,” Downs said. “We’re pioneering law.”

Most professional streamers are new to business and struggle to understand the legal issues that come with their industry, Downs explained. “They need more information,” he said.

Downs is excited about being a source of that information — which is in high demand. For example, his article for Pretzel, “Let’s take a minute to talk about the DMCA,” got more than 17,000 views on the online publishing platform Medium in the year since it was published.

Today, Downs finds himself presenting at the same conferences that he was attending as a wide-eyed newbie not long ago. At TwitchCon, he was a panelist in sessions ranging from “Essential Business and Legal Advice for Every Stream” to fair use and fan content.

And he’s starting to make a national name for himself in the industry — including when a columnist from Forbes turned to him for expert insight on Twitch.

“It’s fun educating people about it,” Downs said. “It’s an underserved industry.”