UGC isn’t easy to make. Who should gain from it?

Image: Revital Salomon via Midjourney AI

Making a living from playing games is no longer a fantasy, but only a few content creators are able to make real money out of their passion. Playing and sharing of video game content is probably the main form of entertainment they consume. For example, in 2021, over 250 million game-related videos, and 90 million hours of livestreams, were uploaded to YouTube.

Other forms of game content include game photography, modding (changing the game’s appearance or behavior), and fan works like fan art. These user-generated creations often expand the game universe through activities like post-release quality control, competitive speed running, or contributing to the game’s lore.

The concept of UGC has taken on new forms and became a significant part of the video game industry. Some creators have managed to earn substantial income from playing and sharing video game content, creating a new digital entertainment industry. The value of this industry is based on the creativity of users who reinterpret and extend the game world. However, under a strict interpretation of copyright law, these activities can be seen as copyright infringement. The industry has managed to thrive not because of permissive copyright laws, but despite a restrictive legal framework. Instead of enforcing strict copyright laws, which could alienate influential user communities, game creators are relying on contracts that offer a parallel system of regulation similar to a Creative Commons type of licensing,

While the contractual regulation of UGC shows promise, it does not solve the fundamental conflict between the creative ‘user’ who makes ‘content’ and the ‘authorial’ creator of a ‘work’.

The study finds that a lot of the discussion around UGC is not about its availability or permission. Instead, the focus is on whether users should be compensated for their creative contributions. This raises important questions about copyright incentives. UGC policies address the issue of monetary rewards in a more structured manner than copyright doctrine, acknowledging that “commerciality” goes beyond user profit and can involve passive monetization without conflicting with the rights holder’s entitlement to compensation through game sales.

UGC in the gaming industry thrives despite copyright rather than because of it. Game rights holders can choose to transfer some rights to UGC creators through contracts, reshaping economic rewards in favor of users. Earning income from using game footage is the least problematic UGC activity in terms of copyright, while activities involving static assets, such as using a game character on a t-shirt or an OST in an unrelated video, have more value but face stricter constraints due to branding and trademark issues.

This shift in rewards challenges policymakers to redefine commerciality and fairness within the boundaries of copyrights, but it rests on shaky foundations. The line between an “author of a work” and a “content creator.” is blurry. The study suggests that UGC policies, while reflecting the uncertainty inherent in copyright law, provide a means to examine and challenge contradictory and unhelpful definitions of UGC that deprive users of authorship or copyright exceptions. There’s a real need to explore and address the issues of copyright and compensation for content creators.