Academic journal article Harvard Journal of Law & Technology

Owning the World's Biggest Esport: Intellectual Property and Dota

Academic journal article Harvard Journal of Law & Technology

Owning the World's Biggest Esport: Intellectual Property and Dota

Article excerpt

TABLE OF CONTENTS    I. INTRODUCTION                                                    965  II. A PRIMER: ESPORTS AND DOTA                                      966      A. eSports: Rising from the Ashes                               966      B. The Significance of DotA                                     968         1. The "Kill" Era of DotA                                    969         3. The "Icefrog" Era of DotA                                 970         4. DotA Legacies: From Community Ownership to Corporate            Dominance                                                 970 III. INTELLECTUAL PROPERTY CASES INVOLVING DOTA                      972      A. Blizzard v. Valve (The DOTA Trademark)                       972      B. Blizzard v. Lilith (The DotA Copyrights)                     975         1. The Existence of the DotA Copyrights: A Question of Law   976         2. The Ownership of the DotA Copyrights: A Question of Fact  977         3. The Validity of DotA's Assignments: A Question of Fact    978  IV. BUSINESS IMPLICATIONS OF THE DOTA STORY                         980      A. The Fate of the DOTA Trademark                               980      B. The Fate of the DotA Copyrights                              983      C. Lessons from DotA: What Should Businesses Do?                986   V. CONCLUSION 989 

I. INTRODUCTION

Electronic Sports--or eSports--is a booming industry. In 2017, global revenue grew by 41% to $696 million. (1) Market research firm Newzoo estimates that the industry will be worth $1.5 billion by 2020. (2) The lion's share of revenue growth stems from "brand investment revenues"--media rights, sponsorships, and advertisements. (3) Media rights, of course, include intellectual property ("IP"). As the eSports market develops, so too will the IP law protecting that market, and the business strategies exploiting those protections.

Part II of this Note explores a small slice of the developing legal landscape of eSports, beginning with a brief overview of eSports history. Then, it dives into the history of Defense of the Ancients ("DotA") (4), a fan-made video game modification from which the world's biggest eSports spawned. Next, Part III explores two cases that dealt with DotA's ownership. The first resolved a dispute between two major video game companies--Blizzard and Valve--over the DOTA trademark. The second set the stage for a battle over the amorphous copyrights of the growing DotA franchise. Taken together, these two cases provide a tentative answer to the question: does anyone own DotA?

Finally, with the legal history of DotA as a guide, Part IV addresses the business aspect of eSports IP. While undoubtedly financially valuable, securing IP rights to video games may, as in the case of DotA, comes with trade-offs. In securing user-generated IP, a video game company must consider how to craft a proper end user license agreement ("EULA") that encourages creativity yet maintains control over potential blockbusters. Perhaps more importantly, a company needs to understand how securing user-generated IP will impact its consumer base.

II. A PRIMER: ESPORTS AND DOTA

A. eSports: Rising from the Ashes

The popularity of video game tournaments is not new. The first video game tournaments emerged in the 1980s, with magazines such as Life covering such events. (5) The nascent video game industry, represented then primarily by arcade machines, was worth over $8 billion. (6) However, as technology developed, the scene shifted from the arcade to home media. By the 1990s, local area network ("LAN") parties had replaced the arcade scene. (7) Video games simultaneously became more private and more communal. (8) Tournaments were relegated to a form of advertising for these home video game systems. (9)

The evolution of video game tournaments to eSports begins with video game tournaments transitioning from a form of advertising, to events in and of themselves. …

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