One of the most popular fighting games of 2018, Dragon Ball FighterZ, has been vanishing. It was dropped from Body Count Fighting, Dreamhack Atlanta, and Anime Ascension, and it was not even announced for Evo Japan. Although there’s been no public explanation for these disappearances, many people have speculated that the fault lies with the sometimes aggressive businesses that own the intellectual property rights in the game’s source material, that is, with the Dragon Ball rights holders. But can rights holders really prevent games from being played in tournaments? The answer is almost certainly yes, thanks to the expansive rights granted to them by copyright law.
Copyright is the legal right to control who can make use of an original expression of an idea, called a “work” in legal parlance. While this right originally applied only to books, over the centuries it’s been expanded to all sorts of additional media. Computer programs like video games contain two copyrights. The first is in their underlying code, as if the code were a rather dry novel. The second is in their audiovisual sights and sounds, like an interactive film, and it receives stronger protection than the code gets. Whoever owns the audiovisual copyright in a video game gets the exclusive rights to reproduce it, create derivative works based on it, distribute it, and publicly perform it, as well as the right to decide who else can do those things too.
All of these rights are complex, with important limitations and plenty of room for debate in the particulars. But to boil them down: the reproduction right gives rights holders control over who can make copies, the derivative works right means rights holders have sole authority to make changes to a work, the distribution right lets rights holders control who can give or sell copies to anyone else, and the public performance right says rights holders can control how a work gets shown in public. In particular, the public performance right comes into play when a work is shown in or transmitted to a place that’s open to the public and when a work is shown to people outside of just a normal circle of family and friends, even if those people aren’t all in the same location. So a bar showing the fight on television, an arcade making games available to play (and therefore to view), and a cable television company transmitting a show to viewers’ separate homes all count as public performances of audiovisual works.
The rights in a copyright can also be chopped up and enforced in any number of ways. A copyright holder can transfer its entire ownership interest to someone else, or it can license a very narrow part of that right for a limited time in particular media in a specific location, and anything else in between. Enforcing a copyright is mostly up to the rights holders, so they get to choose when, where, how, why, how often, and against whom they enforce their rights. Or, if they prefer, they can choose not to enforce their rights at all, either as a blanket rule or on a case by case basis.
In short, video game copyright holders have tremendous control, in both broad and granular ways, over how their works are used.
Application to Tournaments
First off, the legality of unauthorized video game tournaments has never been tested in court. One reason for this is that competitive gaming hasn’t been important enough to justify long costly legal battles until pretty recently, so courts haven’t yet had a chance. But there’s a more fundamental cause: the virtually complete consensus among legal experts that rights holders can use their exclusive rights, especially the audiovisual public performance right, to prevent their games from being played in tournaments.
The case is fairly cut and dry: typical tournaments display video game audiovisual works in places that are open to the public and are attended by more than just a normal circle of family and friends. Games are there to be played, but they can also be watched and heard by anyone who enters. The LAN centers, arcades, hotel ballrooms, and convention halls that host most tournaments may have rules about who can come in, but they are nevertheless open to members of the public in general. And whether tournaments grant entry to anyone or restrict it to only certain individuals, they are almost always open to more people than the organizer’s close family and friends. As a result, for the purposes of copyright, tournament organizers effectively publicly perform the games they run. Other common tournament features such as streams, videos on demand, and big projector screens likely infringe the reproduction, derivative works, distribution, and public performance rights as well.
And yet, tournament organizers been running events for decades. How have they gotten away with this? The answer is that rights holders usually haven’t bothered to stop it. Of course, many were in the dark about tournaments entirely. But even when they have been aware, rights holders have often allowed their games to be played in tournaments, whether out of community spirit, an acceptance of tournaments as free advertising, ambivalence, or whatever other reason.
It doesn’t always work that way, though. Rights holders of some high profile games demand that high profile events pay licensing fees. This has sometimes resulted in tournaments not using such games due to the organizers being unwilling or unable to pay such fees. Rights holders have also sometimes outright refused to allow an event to use their game, whether because the rights holders considered the event disreputable, wanted to elevate their own competing tournament, or just didn’t like the idea of competitive play. Ultimately, if rights holders don’t want their game to appear in tournaments, their wish must be the organizers’ command.
That said, in the future, some organizer may try to defend its unauthorized copyright infringement in court. That organizer will have some interesting points of attack. Old court cases hold that video game players can claim no rights in their gameplay, that a game’s interactivity didn’t diminish the copyright in its audiovisual work; in light of modern games allowing much wider player expression and skill disparity, should that be overturned? A court once held that playing a tabletop game in public did not implicate the public performance right; should that holding be extended to video games too? Another court once decided that while broadcasts of a sport were copyrightable, the sport itself was not; should esports be given the same treatment? These are fun questions, but convincing a judge to unilaterally overturn copyright’s exclusive rights will probably take more than that.
If gaming communities and esports want legal security against video game rights holders, their best path to get it will likely be through the legislature, not the courts.
Back to DBFZ
So yes, whoever owns the public performance rights in DBFZ can prevent tournaments from using it. But who does own those rights? If a rights holder veto really is the reason that some tournaments haven’t run DBFZ, then who’s the culprit?
While rights holders typically want to retain as much control as they can, major international properties can sometimes end up with very complex ownership regimes. Dragon Ball is a prime example of this, with several different entities controlling different rights in different media and different countries and with at least some overlap here and there.
Because DBFZ makes use of the Dragon Ball property, publisher Bandai Namco must have secured a license from at least one Dragon Ball rights holder to make the game in the first place. While Bandai likely has certain rights of its own in the game, licenses like that tend to retain some degree of control for the licensor too. But obviously DBFZ’s exact rights regime isn’t public, and Dragon Ball’s complex ownership makes it hard to know who controls the game’s public performance rights, let alone which individual entity might have requested that it not be played in certain tournaments.
Again, there has been no confirmation that any rights holders made such a request. Indeed, Toei Animation, which owns certain slices of the Dragon Ball pie, tweeted that it had “no knowledge about preventing DBFZ tournaments.” But while the cause of the game’s removal is unclear, the law is not: rights holders really can prevent games from being played in tournaments.