While COVID-19 has paralyzed much of the entertainment industry, the video game sector provides a notable exception to this trend, and has benefitted from a pandemic-fuelled surge in popularity. The number of people playing video games and watching esports has risen sharply as people seek new avenues of entertainment and a means to socialize without having to leave their homes. Despite manufacturing delays affecting the production of certain game consoles, revenue has spiked across the sector, with more people purchasing physical, digital and subscriptions to video gaming services as well as spending more money on in-game purchases.

This growing audience has given rise to an opportunity for innovative partnerships between game publishers and performing music artists. Video game publishers have the chance to form strategic partnerships in order to continue reaching new heights of popularity and influence. Musicians, especially those who were forced to cancel concerts or entire tours, have the opportunity to reach new fans via unique virtual events.

Earlier this year, Travis Scott and Epic Games provided a record-setting example of this concept in action, when the Grammy-nominated rapper held a five-show virtual tour on Fortnite, the wildly successful, free-to-play video game. In the first show alone, over 12 million people logged in to watch the Grammy-nominated rapper perform, and many more tuned in to the livestream via Youtube and Twitch. In total, over 27 million unique participants logged in to one of the five shows. In addition to the debut of Scott's new song, The Scotts, viewers were treated to a visual spectacle, joining a giant Travis Scott avatar on a trip to space. The concert was paired with special challenges to unlock cosmetic rewards and the sale of in-game merchandise, including a unique emote dance and Travis Scott skin (with tattoos and all). Following the Fortnite concert, The Scotts debuted at number 1 on Apple Music, Spotify and on the Billboard Hot 100.

Many intellectual property considerations come into play to ensure that an online performance runs smoothly and does not lead to unforeseen claims of infringement. With so much creative content being used simultaneously, it is important to keep track of the many original works being used, to consider if a virtual performance requires permission from the owner and to determine who that owner may be.

According to the Copyright Act, copyright subsists in every original literary, dramatic, musical and artistic work.[1] In the case of virtual performances, such protected works may include the original music and choreography being performed, as well as the code underlying the performance and all the graphic elements such as the avatar design and background elements. The performance itself is also protected by copyright as well as any recording of the performance.

In Canada, the Act states that the author of a work is typically the first owner of the copyright therein, subject to certain exceptions. For example, if the author created the work in their role as an employee, the employer is typically the first owner of the copyright.[2] In the case of a virtual concert, many entities may own the various underlying works. Although certain exceptions exist, generally, in order to commercially exploit a copyrighted work, the permission of the owner, in the form of a license or assignment, is required.

In addition to copyright, personality rights may also be in play. Protection of personality rights varies between provinces and territories. Care should be taken where recognizable aspects of that person's personality will be used to promote a service or sell merchandise. Such aspects include the individual's name, image and/or voice. Where a performance features an avatar modeled on identifiable aspects of a real person, the parties involved may discuss and negotiate how the avatar will be created, what it will look like, how it will be used and the duration of such use.

When producing an online performance, it is important to consider what rights are being exploited and who will own and control the rights in the finished product. Seeking legal counsel at the outset will reduce the risk of subsequent litigation.

With the rising popularity of virtual concerts in video games, collaborations such as these are bound to get more ambitious in the future. As the world adjusts to "the new normal", both game developers and performers continue to push the boundaries of innovation and art to engage the public in new ways.

[1] RSC 1985, c C-42, s 5(1) [the Act].

[2] Ibid, ss. 13(1) & 13(3).