KeSPA will eventually negotiate with Gretech

Money Matters

The key issue of Starcraft II broadcasting rights negotiation is the terms of the deal, which in turn means money.

How much money?

It is said that Blizzard put up several conditions that struck KeSPA as too much.

From what I heard, Blizzard requested:

• fees for each game league (it is not clear whether the fee is for every season or a league or for every new league);
• certain percentage (that is more than usual) of sponsorship, advertisement income and entrance fees;
• KeSPA shall get a permission for each sponorship contract, selection of broadcasting and marketing plan; and
• Blizzard will have the rights in the derivative works made in the course of game league broadcasting.

Was there a Non-Disclosure Agreement?

KeSPA argues that there was no NDA. Blizzard claims to the contrary. I would scratch my head if there were no NDA for the negotiation of such kind.

What are the Terms of the Blizzard-Gretech deal?

There has been no news on the detailed terms of the Blizzard-Gretech deal. I suppose Gretech was granted an exclusive license within Korea to make use of the rights (trademarks and copyrights) in Starcraft / Starcraft II / Warcraft III.

It is said that KeSPA started negotiation with Gretech over the rights to use Starcraft and Starcraft II for gaming league purposes in Korea.

I’m waiting for new to pop up.

Blizzard chooses Gretech over KeSPa as partner for Starcraft II broadcasting

I was surprised to received an email from Canada a week ago. He asked me to explain whether Blizzard-Gretech deal had legal effect.

I haven’t searched for news articles written in English. If there are any well translated article, I would welcome it.

There are some facts that were revealed in news.

1. Blizzard tried to negotiate an agreement with KeSPa. (Oh, BTW, KeSPA is Korean eSports Association.) They couldn’t reach a deal.
2. Blizzard then struck a deal with Gretech. Gretech makes Gom TV, Gom Player and other multimedia platforms. Gom TV is an internet TV under the Korean Copyright Act, I believe.
3. KeSPA is blaming Blizzard for claiming intellectual property rights on Starcraft Original, Starcraft II and other games.  

Legal aspects of this incident seems clear but unconvincing. Unconvincing because of a Seoul High Court decision in 2007 on the copyrightability of a game character. (will explain more below)

1. Blizzard has rights in the computer program underneath Starcraft II as a computer program work.
2. Blizzard also has rights in the artworks, music and scripts (displayed on the screed or not) of Starcraft II. However, there is a major loophole created by the Seoul High Court decision in 2007.  Let me quote and translate relevant paragraph.

On whether a character is copyrightable independently from the whole game.

On the issue of whether a character that appear in the “Live Baseball” game is copyrightable independently from the game,
Works of art like “Live Baseball” are composed of many elements: characters, plot, scenario, various options, tools, etc. The allegedly copyrightable character is merely an element of the work of art. The character is not considered an independently copyrightable work of art unless the character acquires an independent copyrightability through merchandising of the character.

In addition, Article 2(1) of the Copyright Act defines “work of art” as “creation that expresses human thought or emotion.” The creation means expression itself. A character is an image that are separate from the expression and that are formed in the minds of people. That is, a character is an abstract concept of a personality that are formed from concrete expressions that appear in each scenes, and it is not an expression. Therefore, a character itself is not a creative expression of a thought or emotion.

In conclusion, protecting the game play of “Live Baseball” as visual work of art is sufficient. A character, independently from the game play, is insufficient to be protected as copyrightable work of art.
(Seoul High Court, 2007.8.22., Seon Go. 2006 Na 72392 Pan Gyul)

This case creates a lot of confusion in understanding what to license in when one wants to hold a game competition. 

According to the case, Blizzard has copyright in the game play screen of Starcraft II but does not in the game units (marine, medic, zergling, dragoon, or you name it). 

Anyhow, it can be reasoned that the audio visual screen of the game play is a derivative work of the Starcraft II. That means, game players need to get a permission from Blizzard. Do they need a permission for game play at home? No. Blizzard Starcraft II license agreement covers game play at home.

Suppose game players has permission from Blizzard, what should broadcasting companies do? Broadcasting companies should get a permission from the game players for broadcasting their plays.

These are the legal landscape of the Starcraft II game convnetion.

What does KeSPA have to do with the above picture?

KeSPA is an association of the game teams. Game teams have contracts with game players. Game players’ plays are work for hire. So, the liability belongs to game teams.

Looks complicated, but it’s not so.

Simply speaking, Blizzard has every right to flunk the deal with KeSPA and give exclusive rights to Gretech. If KeSPA goes on with what it has been doing and ignores the Blizzard-Gretech deal, they will meet in court and will probably pay their sorry money.

Interesting thing is that Blizzard is said to have requested too much from KeSPA, terms that it can’t accept.

I can’t list all the leak-outs of the deal here because I haven’t seen them myself.

I thought from the beginning that this is a business deal and has not much to shed further light on the copyright system or IPR laws in Korea.

KeSPA’s argument that it contributed to the success of Starcraft by making the game competition industry as it stands now is a simple BS.

I’d like to draw your attention to the fact that Gretech is an internet TV company and technically it can broadcast to the North America and Europe or anywhere else. I couldn’t get a hold of the license agreement between Blizzard and Gretech, but I’m sure the geographic scope of the license is limited to Korea. But the license agreement can be amended any time. If Blizzard considers that internet TVs are the right platform for game broadcasting, it might consider broadening the license to worldwide and start shooting game plays all around the world.