Fan Creativity in Gaming and IP Infringement

By: Yixin Bao

Gaming is known to be a big and rapidly growing industry. In recent years, the COVID-19 pandemic has contributed to a surge in gaming activity and revenue. Many people turn to gaming as a form of entertainment during their time at home. According to The NPD Group, the average time people spent on gaming rose from 12.7 hours per week in 2019 to 14.8 hours per week in 2020 and to 16.5 hours per week in 2021. Statista data further shows that the estimated global gaming market will increase to $268.8 billion annually in 2025 from $155.89 billion in 2020. 

There are many different types of gaming. The most commonly recognized ones include mobile gaming, console gaming, and PC gaming. In addition, new categories have emerged, such as esports and virtual reality gaming. With the increasing popularity of gaming and the increasing number of players, the gaming industry is expected to continue to grow in the future. 

As popularity of the gaming industry is on the rise, so are related intellectual property infringement issues. Intellectual property can include inventions, artistic works, designs, and names that are used in commerce. Normally, IP infringement includes patent infringement, copyright infringement, or trademark infringement. IP infringement can result in legal action taken by the owner against the infringing party, including but not limited to injunctions and monitary damages. 

A “fan” or “fanatic” is defined as someone who exhibits intense admiration and enthusiasm for something or somebody. Without a doubt, the gaming industry has its own fans. In fact, this number can be huge. For example, League of Legends (“LoL”) is known to be one of the most popular online games in the whole world. It is said that there are currently 180 million League of Legends players right now in 2023. Esports also heavily influenced the growth of the game’s popularity. Each year, the World Championship is organized so that teams from all different countries gather together and compete for the best team. In 2018, 99.6 million unique viewers watched the World Championship. Although it can be difficult to accuralty measure how many fans a game has, as some will not identify themselves as fans, it is reasonable to assume LoL’s fanbase is enormous. 

Many fans of the gaming industry make their own content. This includes, for example, creating new characters or inventing new storylines based on the original characters and artworks. On one hand, this benefits the gaming industry because fans give free promotion for the games. On the other hand, however, this is when the fan creativity ends, and IP infringement occurs. Kostya Lobov, a partner at a United Kingdom (“UK”) law firm, discussed the balance between fan creativity and IP infringement. Lobov admitted that companies didn’t want to alienate genuine fans, but some bad actors tried to profit from making use of the others’ IP rights. This might lead to trademark and copyright infringement. This also happens in the United States. 

Gaming companies often issue take-down requests in response to content created using their intellectual property. While some companies have a zero-tolerance policy and remove most potentially infringing content, others are more lenient and only take action when the content is being used for commercial purposes. Although fair use may allow for some creative use of copyrighted material without permission, it is important for fans to be cautious. Non-commercial use may support a fair use argument, but it is not definitive. Other factors, such as the nature of the copyrighted material, may also play a significant role. Overall, as long as one creates something that uses the gaming company’s IP rights, he or she bears a degree of risk of infringement. 

In conclusion, the companies in the gaming industry should consider carefully how to set up their line between fan creativity and IP infringement. There can be thousands of potential content that can technically infringe on the gaming companies’ IP rights. Enforcement can be infinite and difficult if the line is too blurry. The legal actions might also “promote” their games in a negative way. In the end, the gaming industry should learn how to coexist with fan creativity and learn to profit from the efforts of fans while at the same time protecting its own rights.