IP, Esports and Game Developers

The subject of Intellectual Property (IP) is an incredibly large one and it looms even larger in the wild and quickly evolving world of esports. In my previous blog – What Does IP Really Mean? And How Does It Affect EVERYTHING Esports? – I outlined the issues and concerns surrounding IP itself and where it sits in the ECEsports Stakeholder Relationship Diamond. Please refer to that blog for a general introduction and overview.

Who are the Game Developers?

Developers are the organizations who create the original content and “publish” the video game. They are the Nintendos, the Take Two Interactives, the EAs, the Activisions, who invest significant sums of money to ‘invent’ these video games. It makes complete sense that Developers be able to recoup their investment and profit from their IP. The issue is that these games are now being played or performed by skilled athletes who are creating their own IP in the context of someone else’s invented game. Where does one IP end and another begin? How can these lines be drawn fairly so that all parties involved benefit?

Right now, Developers can limit how a video game is used in online video, streaming gameplay, at in-person tournaments and many other platforms or uses. Any individual using a video game without the appropriate permission from that game’s copyright owner (i.e. the Developer) could be in danger of committing copyright infringement.

The esports world has exploded so quickly that the law governing IP does not account for the new application involved in the context of the IP – Game Developer – Esports Athlete relationship. This has to change.

Historically, video games (and esports), have experienced peaks and valleys in terms of playability and viewership. In other words, when a game came out and it was ‘the new thing’ playability and viewership were high but there was nothing in place to sustain that momentum.  No matter how popular the game, it simply couldn’t sustain that level of success, it slowly plateaued and made its way into the video game archival universe.

Today, we have the technological ability to support a game indefinitely.  Developers can continually update, or ‘patch’, their games (i.e. adding new characters, maps etc), in order to keep them feeling fresh for the player.  It creates the opportunity for the Developer to eliminate the ‘peaks and valleys’ they have historically seen. The development of the esports industry adds another layer of engagement for Developers to utilize. They can now create entire competitive ecosystems and communities for fans to follow and engage in.


The Challenge 

On the one hand, you have the Game Developer who sees the technology, understands the revenue potential, invests additional capital to implement new ‘life lengthening’ strategies, and wants to ensure their return on investment.  By limiting the amount of money that can be earned through the use of their game by someone other than them, including tournament organizers, teams, athletes, and streamers, Game Developers can see more return.

On the other hand, you have the Game Developer’s desire to keep their game from having ‘peaks and valleys’, which they can do by facilitating a competitive ecosystem and community that sustains a level of popularity and interaction with any given game at any given time.

Every Developer is going to look at the current esport industry and see different things. How they interpret these ‘things’ – the changes, trends, movements and opportunities in the industry – will dictate their actions, including how they make their games available to third parties (tournament organizers, streamers, content creators etc).

The issue then becomes…how much is too much? How much Developer involvement is needed or warranted?

Let’s take a look at the way a few prominent Developers have reacted to demand for esports.


Game Developer Nintendo has been around since 1989. They are responsible for some of esports most loved and most played games. Traditionally, Nintendo has been quite strict in allowing third parties to use their games. They operate under the belief that it is their right to protect their IP and they have gone to great lengths to do so.

The Evolution Championship Series (EVO) represents the largest and longest-running fighting game tournament in the world. It attracts the best of the best from around the globe in an open competition format to determine the champion. In 2013, Nintendo tried to shut down the use of their 2001 game Super Smash Bros. Melee from being played at EVO 2013.

Nintendo’s Super Smash Bros. Melee has one of the most devout followings and communities in all of esports. Though Nintendo has recently begun to embrace these communities, they are doing so in their own way with their own unique, and often unclear, purpose. In many ways, they seem to be dissing the status quo (if there is such a thing in esports) and marching to the beat of their own drum.  Whether these decisions will negatively affect Nintendo’s competitive scene or draw a new legion of up and coming fans and players remains to be seen.


Blizzard also holds a fairly tight reign on their games and this directly impacts the communities and competitive scenes at the centre of them. A prime example of this would be their shutting down of Heroes of the Storm. Claiming it was not ‘economically viable’, the decision was made to shut it down. How many conversations, if any, took place regarding securing potential partnerships or possible outside investments is not known. What is known is that an entire esport community was deeply impacted by Blizzard’s unilateral decision.

Blizzard’s control over every detail related to their Overwatch competitive ecosystem has been perceived as extremely negative by its professional players and community. Many have taken to the airwaves to complain but this hasn’t seemed to soften Blizzard’s resolve to be in control of everything from league operations, the who’s and what’s of sponsorships, to the actual broadcast talent commentating and staffing their events.

From an economic standpoint, it makes sense for Blizzard to want this level of control.  But there is also the possibility that this level of control will slow or even stagnate the growth of a competitive esport ecosystem that engages fans and inspires talent.


Valve is far less ‘strict’ in its control over its larger esport ecosystem. It really has been letting the community dictate how use and engagement unfold for any particular game. Not only has Valve been more hands-off than other Developers, but they also provide sizable prize pools for certain tournaments and often allow the organizers and the game community build their game’s esports infrastructure. Typically, a by-product of this kind of empowerment is increased buy-in and excitement.

More recently Valve has become a little more involved, providing more structure to guide and streamline engagement. It seems as though they have struck a perfect balance between involvement and input from both sides, enough to guide but not enough to constrict or limit the competitive landscape.

Valve offers many games but their 2 biggest are Dota 2 and Counter-Strike. Dota 2’s tournament, The International, boasts the biggest prize pool on the planet and it’s been breaking its own records, outdoing itself every year. While this is impressive, the way they have levelled the playing field for event organizers through ‘requirement transparency’ is what should really be celebrated. The vision for their events and what they are looking for in partners and sponsors is evident in their recent announcement: (the following is taken from that article)

●      The size of the venue is less important than how the venue will be used to maximize the experience for attendees/viewers on stream.

●      Showcasing other games at the event does not reduce its appeal.

●      Valve heavily values risk management. The company prefers proposals that “balance the value created by taking risks with a reasonable backup plan.”

●      Proposals should convey the organizer’s ability to tell a compelling narrative throughout the Major.

●      Going forward, the company will select its Major partners one event in advance, giving that organizer more time to prepare for their event.

This is a list that asks for creativity and thoughtful engagement. This list enables partnership and a collaborative environment. As a result, Valve’s community is growing, which signals something ‘healthy’ about the competitive ecosystem they have fostered.

The bottom line here is the application of a universal principle. Engagement increases when there is an identifiable pathway for buy-in. Engagement decreases when there are obstacles on the pathway to buy-in. There will always be a base that is willing to jump through whatever hoops are necessary to be a part of the gaming culture. Growth, however, will spring from accessibility, ease of use and ease of engagement. As the esports world continues to navigate these pathways, Game Developers will see their game ecosystems rise or fall based on how they treat athletes, players, partners, communities and audiences.

Thanks for reading my blog. The above content is not legal advice but observation about the vast esports field. If you have any questions or comments or would like to schedule me to speak at your event, head over to my website www.ecesports.gg

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