Why Nintendo can legally shut down any Smash Bros. tournament it wants

After some off-again, on-again drama over the past few days, it looks as if Nintendo is going to allow organizers to stream footage of the Super Smash Bros. portion of this weekend’s Vegas EVO fighting game tournament over the Internet to worldwide spectators. But an interesting wrinkle was added to the story yesterday when EVO co-organizer Joey “MrWizard” Cuellar revealed in an interview with OneMoreGameTV that Nintendo initially wanted to prevent Smash Bros. from being played at the tournament altogether.

“They were not only trying to shut down the stream, they were trying to shut down… the Smash portion of the event,” Cuellar said. “They didn’t present us with any options to keep it open, they were just like, ‘Hey, we want to shut you down.’”

While Nintendo eventually backed off its disapproval (unlike a similar situation with an MLG tournament back in 2010), this all got us thinking about just how much right, legally, Nintendo has to stop people from simply playing its games in a tournament setting. With most games and sports, this isn’t even an issue worth considering. Nobody owns the copyright to football, for instance, and there’s no legal entity that can stop you from holding the world’s largest charades tournament and charging for admission.

Even board games, which have corporate owners and legally protectable components, can’t be restricted in this way. While board game makers can copyright things like the board design and actual printed rules, they can’t copyright the “heart” of the game; that is, its overall design and general method of play.

Furthermore, in a 1996 case, the 9th Circuit Court of Appeals held that “playing of a [board] game is not a ‘performance’ within the meaning of the Copyright Act.” That means there’s nothing Scrabble owner Hasbro could do to stop someone from playing the game in the park in front of a bunch of spectators, for instance (though other courts might come to different conclusions, and anyone advertising a tournament may have to take care to avoid trademark issues).

Video games are treated differently, though, primarily because they exist on a screen rather than a board. “A video game under copyright law is an audiovisual work, which gives a public performance right to the copyright holder,” Dallas attorney and Law of the Game blog author Mark Methenitis explained in an interview with Ars. “Under the public performance right, the copyright holder is allowed to say when, where, or whether something is publicly performed, meaning displayed in front of a group of people larger than, say, at your house.”

In other words, if you want to put on a Street Fighter tournament and charge people to watch, Capcom can make you get a license for the “public performance” of the game. In fact, that is exactly what Capcom does with for-profit tournaments. When organizations like the World Cyber Games and Major League Gaming went around this requirement four years ago, Capcom exerted its rights and banned both tournaments from using Capcom games, as e-sports journalist Rod Breslau recalled. “Only this year has the ban been lifted on WCG, while I don’t see any resolution for Capcom and MLG anytime soon,” he said.

Licensing issues and legal distinctions

In a way, video games are no different from DVD movies, which you can’t legally show to a big group of strangers without the proper license. The only difference is that the movie industry has a simple Website where you can buy legal public performance rights for your DVDs, while the game industry has no such organized entity for getting legal clearance for your game tournament.

Methenitis says that this has caused problems for groups like libraries, which have come to him looking for help making their video game-themed tournaments and events nice and legal. “They were sort of in a tizzy, ‘What do we do about this?’” he recalled. “[I told them] you can try to send an e-mail to Nintendo or Sony or whoever you’re dealing with, but I don’t really have any assurance you’ll get a response, and there is no easy licensing system you can go to for this.… It’s sort of such a grey area with games that no one has done anything to really formalize it in either direction.”

No doubt the tournament organizers at EVO would have appreciated such a one-stop licensing solution for their efforts as well.

At some level, it makes sense that a video game maker can control the public performance of its work, even in a tournament setting. Video games are games, like football or Scrabble, but they also include significant expressive elements, like character design, settings, voice acting, animation, and more. These are the kinds of inherent elements that convinced the Supreme Court that video games are speech protectable under the First Amendment, rather than simply a set of unprotectable “rules.” While that protects the games from government intervention, it also gives video game creators a much stronger say over the games’ public use than, say, James Naismith has over basketball.

On the other hand, playing a game in public isn’t exactly the same as hitting “play” on a DVD and selling tickets, or even posting a “Let’s Play” video on YouTube (another area where Nintendo has been flexing its legal muscle recently). The tournament organizers are primarily selling access to the particular match of the game being created by the competitors and the live commentary on that match from the shoutcasters. This is the “work” the spectators are paying to see, more than the underlying game elements behind it.

Legally, though, this distinction is moot. The law treats a performance of Smash Bros. the same way it would treat the performance of a written play or a piece of sheet music—that is, as something that can be controlled by the original copyright owner. This is true even though the game is much more improvisational and competitive than simply reciting a script (improvisational theater is much harder to protect with copyright), and even though the same exact game would not be considered a performance if it were not on a video screen.