Where there is money, there are contracts.

The rapid evolution of the $100 billion video game industry has created a growing need for something many people wouldn't expect: lawyers. Where there is money, there are contracts. And, in the video game industry, there also are questions about intellectual property.

In addition, the explosive growth of professionalized esports, with high-stakes competitions often staged in sold-out arenas, has created opportunities for player agents, just like pro sports. And just like the major leagues, there are performance-enhancing drugs in eSports such as stimulants that need to be addressed with well-vetted policies.

Eric Ball, partner at Fenwick & West, recently sat down with Inside Counsel to discuss the new IP issues brought on by video games and eSports. Copyright and trademark issues are always top of mind for the video game industry because the industry relies heavily on the content it generates. As wearable technology, augmented reality (AR), and virtual reality (VR) continue to evolve, Ball expects patents and trade secrets to play an increasingly important role in the industry.

In addition, trade secrets may play a role in the eSports context as teams try to lock down their strategies like an NFL team maintaining secrecy over its playbook. Privacy concerns will also continue to grow as games become more interactive with the real world. Today, the growth of professionalized esports has created opportunities for player agents, just like pro sports.

“There has been a big push to port the existing infrastructure from the professional sports world over to the gaming world when it comes to players and their agents. However, as many in the eSports arena know, that is not always the right fit. The meteoric rise of professional eSports has created an exciting opportunity to structure relationships that are tailored to the unique needs of the games industry and its players,” explained Ball. “There is already a battle for control between individual players, teams, agents, game developers, and the platforms promoting the games.”

Many of the underlying concerns, such as well-vetted policies, effective enforcements, are the same in eSports and sports like the NFL. But, eSports are unique in that they are generally centered around specific IP like “League of Legends” or “Overwatch,” which makes them closely associated with gaming companies. According to Ball, doping associated with one franchise could end up impacting a company's brand, including a trickle-down effect to its other franchises.

“As gaming companies seek to diversify their player bases, creating content for both the casual and the hardcore gamer, this can have serious and far-reaching consequences,” he said. “Gaming companies operating in the eSports arena will want to think carefully about how to address the use of performance-enhancing substances, and consider that response as part of their overall branding strategy.”

The video games industry continues to push the boundaries of how we interact with IP. Over time, courts will be more comfortable understanding the complexities of today's games and grappling with the tough questions they pose. According to Ball, as more games focus on building communities of players, and players become more sophisticated at leveraging platforms like YouTube, policies governing player interactions, player-generated content, and content steaming will be more and more important to players, fans and game developers.

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