Twitch and copyright infringement claims

Live streaming platforms are video hosting solutions that allow users to upload and broadcast video content to their audience. Businesses can use streaming video platforms to share videos for the purpose of building brand awareness, advertising, and as an added source of revenue by providing paid access to special video streaming. This platform is also mainly used by gamers with three main platforms competing for this market: Mixer by Microsoft, YouTube and Twitch by Amazon.

Regardless of what platform you decide to use, you will probably be bound by rules regarding copyright. Just as with every other platform, make sure you are properly informed and you thoroughly read the rules that you need to abide by when using the platform and the powers you are granting said platform regarding the content you create and publish on it.

Let’s talk today about Twitch, this Amazon-owned live streaming platform, that has been at the centre of a wave of DMCA or copyright infringement notices. Ever since the beginning of the quarantine, Twitch has been attracting millions of viewers from all over the world. If you are not familiar with Twitch, here is a little breakdown. People (from all age range) can watch their favourite gamers play their favourite videogames live, interact with them and support them financially by subscribing or donating. Because this is their business, gamers work on building their community and interacting with their users by taking time off from gaming and just “chatting” with them. This chill time will most likely involve playing some nice music in the background. They can also goof around and dance to the rhythm of their favourite tune. People can clip their favourite moments that will then be saved in the streamer’s channel, as well as their past live videos (VOD).

Unfortunately, this has made them the target of a wave of copyright infringement claims covering 2017-2019. Over the past few weeks, Twitch streamers have received copyright infringement notices from Twitch for music used in clips posted on their channels over the past year, with the company “threatening” to terminate the accounts of “repeat infringers” as per its own Guidelines:

“It is our policy to respond to clear notices of claimed copyright infringement that fully comply with the Digital Millennium Copyright Act. In addition, we will promptly terminate without notice the accounts of those determined by us to be “repeat infringers”.”

If you take a look at Twitch’s Terms of Services you can see in section 10 “Twitch respects the intellectual property of others and follows the requirements set forth in the Digital Millennium Copyright Act (“DMCA”) and other applicable laws. If you are the copyright owner or agent thereof and believe that content posted on the Twitch Services infringes upon your copyright, please submit a notice following our DMCA Guidelines, which include further information about our policies, what to include in your notice, and where to submit your notice.”

As unfair as it might seem to receive in 2020 a copyright infringement notice for a clip of 2017, this is in line with the copyright protection of musical works. Because streamers (not with malicious intent, but rather due to lack of knowledge) have been playing music during their streams without securing a licence from the appropriate record companies, they are now facing copyright infringement claims from said record companies. The only part of Twitch that is protected from copyright infringement claims is “Twitch Sings” (a karaoke game that enables streamer to sing their favourite songs on stream, enables viewers to choose the next song through a poll and applaud the streamer virtually). Take a look at section 18:

“To make available musical works from a variety of artists within Twitch Sings (from rock to pop), Twitch negotiated licenses with many different rights holders and continues to do so in order to add new musical tracks.  The licenses granted to Twitch allow Twitch to use the works, and offer them to you for use, solely in connection with Twitch Sings and the Twitch Services. Twitch Sings content has not been cleared for use outside the Twitch Services.”

We understand the frustration of streamers, who might have been streaming for years now, with hundreds of thousands of clips and past live streams available on their platform who are now obliged to delete all past clips and VODs if they want to avoid being targeted and their channel potentially being terminated. Twitch has been making things easier by adding a section referring specifically to music, a list that you should apply whether you stream on Twitch, Mixer, YouTube or any other platform.

What songs can you play on stream?

• Music that you own. Original music that was written by you and either recorded or performed live by you and for which you own all rights necessary to share the music on Twitch (copyright over the music and the lyrics, as well as rights over the recording and performance). Even if you are the original author, be careful! If you have a contractual relationship with an organization that controls rights to the music you have created, such as a record label or publishing company, they are probably the ones who have control over the above-mentioned rights, and you should make sure to clear the rights with them before using the music on your stream.
• Music licensed to you. If you have been able to secure a licence to share the music on Twitch, then you will not be in trouble.  
• Twitch Sings performances. As mentioned above, according to section 18, Twitch has managed to secure a licence for songs in Twitch Sings allowing you to sing them while streaming.  

Any other situation will probably end up in a copyright strike. In a nutshell, you cannot listen to music streaming services while on stream (Spotify, Amazon Music…); you cannot lip-synch to your favourite tune and you should be careful with cover songs.

For a large number of streamers, streaming has become their job. More and more companies are attracted and offer sponsorship to e-sports and streamers, offering them a steady income through affiliate links in exchange for publicity and exposure for the brand. Like any business, streamers should make sure that they protect their assets and the reputation they build around their brand (the name of their channel, the emotes and their logo are all part of their brand) but they should also make sure that they seek Intellectual Property advisors who can help them and prevent them from infringing third party’s IP that could jeopardize the existence of their online business and presence.