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While COVID-19 has paralyzed much of the entertainment industry,
the video game sector provides a notable exception to this trend,
and has benefitted from a pandemic-fuelled surge in popularity. The
number of people playing video games and watching esports has risen
sharply as people seek new avenues of entertainment and a means to
socialize without having to leave their homes. Despite
manufacturing delays affecting the production of certain game
consoles, revenue has spiked across the sector, with more people
purchasing physical, digital and subscriptions to video gaming
services as well as spending more money on in-game purchases.
This growing audience has given rise to an opportunity for
innovative partnerships between game publishers and performing
music artists. Video game publishers have the chance to form
strategic partnerships in order to continue reaching new heights of
popularity and influence. Musicians, especially those who were
forced to cancel concerts or entire tours, have the opportunity to
reach new fans via unique virtual events.
Earlier this year, Travis Scott and Epic Games provided a
record-setting example of this concept in action, when the
Grammy-nominated rapper held a five-show virtual tour on Fortnite,
the wildly successful, free-to-play video game. In the first show
alone, over 12 million people logged in to watch the
Grammy-nominated rapper perform, and many more tuned in to the
livestream via Youtube and Twitch. In total, over 27 million unique
participants logged in to one of the five shows. In addition to the
debut of Scott’s new song, The Scotts, viewers were
treated to a visual spectacle, joining a giant Travis Scott avatar
on a trip to space. The concert was paired with special challenges
to unlock cosmetic rewards and the sale of in-game merchandise,
including a unique emote dance and Travis Scott skin (with tattoos and all). Following the Fortnite concert,
The Scotts debuted at number 1 on Apple Music, Spotify and
on the Billboard Hot 100.
Many intellectual property considerations come into play to
ensure that an online performance runs smoothly and does not lead
to unforeseen claims of infringement. With so much creative content
being used simultaneously, it is important to keep track of the
many original works being used, to consider if a virtual
performance requires permission from the owner and to determine who
that owner may be.
According to the Copyright Act, copyright subsists in
every original literary, dramatic, musical and artistic work.1 In the case of virtual performances, such
protected works may include the original music and choreography
being performed, as well as the code underlying the performance and
all the graphic elements such as the avatar design and background
elements. The performance itself is also protected by copyright as
well as any recording of the performance.
In Canada, the Act states that the author of a work is
typically the first owner of the copyright therein, subject to
certain exceptions. For example, if the author created the work in
their role as an employee, the employer is typically the first
owner of the copyright.2 In the case of a virtual
concert, many entities may own the various underlying works.
Although certain exceptions exist, generally, in order to
commercially exploit a copyrighted work, the permission of the
owner, in the form of a license or assignment, is required.
In addition to copyright, personality rights may also be in
play. Protection of personality rights varies between provinces and
territories. Care should be taken where recognizable aspects of
that person’s personality will be used to promote a service or
sell merchandise. Such aspects include the individual’s name,
image and/or voice. Where a performance features an avatar modeled
on identifiable aspects of a real person, the parties involved may
discuss and negotiate how the avatar will be created, what it will
look like, how it will be used and the duration of such use.
When producing an online performance, it is important to
consider what rights are being exploited and who will own and
control the rights in the finished product. Seeking legal counsel
at the outset will reduce the risk of subsequent litigation.
With the rising popularity of virtual concerts in video games,
collaborations such as these are bound to get more ambitious in the
future. As the world adjusts to “the new normal”, both
game developers and performers continue to push the boundaries of
innovation and art to engage the public in new ways.
Footnotes
1. RSC 1985, c C-42, s 5(1) [the
Act].
2. Ibid, ss. 13(1) &
13(3).
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