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The video game industry continues to grow into a behemoth, yet the players fueling its rise lack sufficient copyright protection. While the Copyright Act protects video games’ copyrightability as audiovisual works, it lacks clear protection for the gameplay created by gameplay content creators. These secondary creators increasingly build careers out of their gameplay yet lack clear copyright protection over the videos they create because the video game developer typically owns the video game’s exclusive rights over public performance and derivative works. The status quo relies on a “gentleman’s agreement” where video game copyright holders ignore their rights in the copyright and allow gameplay creators to build careers while the copyright holders reap the benefits from the publicity. However, the copyright holders maintain the power to end a gameplay creator’s career by simply enforcing their rights.

Several proposals provide workable solutions but fall short of meaningful protection. Most proposals argue stretching the Copyright Act’s existing language to meet the video game industry’s needs while recognizing the Act lacks sufficient language for the industry’s distinctive nature. To overcome the ambiguity in interpreting dated law to a nascent industry, this Note proposes an amendment to the Copyright Act that provides a tailored approach to copyright protection for gameplay creators. This Note first proposes a declaration of non-infringement for a gameplay creator’s videos of their own gameplay from nonlinear video games. This Note secondly proposes the use of a sui generis right that recognizes the significant effort by gameplay creators in creating their gameplay videos and rewards the effort with narrow but sufficient copyright protection over their individual audiovisual creative works. Collectively, this approach alleviates the fear of copyright strikes against the gameplay creators while also allowing them to protect their works against potential infringers.



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