Trends, analysis and insights in IP Law
In Part I of this blog post, I explained what a reaction video is, how it could constitute copyright infringement under the Copyright Act, and how the possible legal exception for “criticism” or “review” might apply to a reaction video. In Part II of this blog post, I further analyze this exception through both a Canadian and U.S. legal lens (no pun intended).
Continue reading A few months ago, my colleague Jay Kerr-Wilson published this blog post on the intellectual property issues surrounding the phenomenon of “Let’s Play” videos, a genre of online videos where an individual records and broadcasts themselves playing a video game. The individual might film themselves or just provide audio commentary, but in either scenario their own content is layered on top of the game that they are playing. The blog post discusses how this video genre could be considered copyright infringement with respect to the video game being played, as well as why generally we are not seeing infringement cases in this area because of the symbiotic relationship between content creators and video game publishers.
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Just before New Year, a controversial piece of US legislation tucked into a COVID-19 relief package had people who stream video gameplay online concerned that their livelihood was about to be criminalized. While a careful reading of the legislation reveals that the initial reaction was unwarranted and perhaps overblown, it does raise some interesting questions about the legal status of “streamers” and the interplay between game publishers and online video content creators.
Streamers use internet platforms such as Twitch and YouTube to broadcast videos of themselves to their fans and followers. Some of the most popular streamers will play videos games on camera during the streams. These gameplay videos are sometimes referred to a “Let’s Play” videos (as in, “Let’s Play Animal Crossing” or “Let’s Play Assassin’s Creed”). They earn revenue by offering subscriptions, accepting donations from fans, promoting products and services, and selling merchandise. The videos are live streamed so viewers can interact in real time with the streamer using a chat function. Many of the videos are also stored and can be viewed on-demand later.
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Proving chain of title to a work is essential for any party wishing to assert copyright infringement. However, this is not always easy, given that the author of the work is not required to register its copyright to acquire the protection by copyright law, provided that the author is Canadian or a citizen of any of the signatory countries to the Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886.[1] Further, in any civil proceeding in which a defendant puts in issue either the existence of copyright or the title of the plaintiff to it, the author shall be presumed to be the owner of the copyright unless the contrary is proven.[2] Given that copyright exists from the moment the original work is created and that the title of ownership may easily be passed around since its existence, it is important to keep a robust documentation of the chain of title of a work.
Continue readingIn Part One of our series on protecting individuals’ images after their death, we examined the privacy rights that govern the use of these ‘zombie’ celebrities, just in time for Halloween. We considered what privacy rights attach to dead celebrities, and whether these rights can be exercised by their estates/heirs. In this Part Two, we will consider what intellectual property rights could govern this so-called resurrection of dead celebrities!
As you will recall from Part One, it is not surprising that movies and concerts are reaching back to long dead stars to “perform” for audiences. What intellectual property rights govern the resurrection of a dead celebrity? If property rights are the best way for a deceased’s heirs to protect the image of the deceased, how can the “property” regime of intellectual property rights assist?
There are a number of statutory IP regimes as well as common law causes of action which can allow online influencers and the estates of deceased celebrities to control and monetize these valuable assets and continue to monetize as technology allows them to do so.
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