Are “Public Performance Rights” Required For Game Programs?

This article is from the first edition of The Video Game Librarian website I published between 2008 and 2010. It was originally written on June 6, 2008.

The question of whether or not it’s legal to use video games in a public program has come up in four places over the last several days: The School Library Journal, GamePolitics.com, Joystiq’s Law of the Game column and at the LibGaming Discussion Group.

Here’s what they had to say…

The general consensus seems to be that while the license agreements that come with most games specifically says the game is for “Home Use Only,” the game companies have no interest in enforcing it. The point was also raised that Nintendo has donated Wii systems and games to many libraries for use in programming, making their position on “public performance rights” of their games pretty clear.

The public performance rights associated with music and movies are very clearly established by ASCAP and the Motion Picture Licensing Corporation, respectively. The video game industry doesn’t have such a licensing group because previous “public performances” of games have been limited to arcade games, which are designed to be used in public.

In the Libgaming Group, Scott Nicholson found a lawsuit from 1996 (Allen v. Academic Games League of America) where the court ruled that “public performance rights” did not extend to playing a tabletop game in public. It’s not an exact match for a video game, but it’s close.

The Joystiq article suggests two courses of action if a public performance license for games is a concern:

1. Keep going status quo and hope no one notices, but fear the potential legal ramifications if someone does.
2. Contact the rights holder and try to get a license and modified EULA.

I’d have to go with option one myself, as I believe game companies view gaming in libraries as free advertising. Watching a game being played (or only getting one brief turn at the controls) is not the same as playing the game yourself in your home. This is where the free advertising angle comes in. If a library patron enjoys the game, there is an incentive to buy the game to get the full experience. This incentive is not part of movie or music programs, because the experience at home would be the same as a “public performance” at a library.

Lawyerly types will no doubt continue to worry about this until a real solution (like ASCAP or the MPLC) is created by the game publishers. But until then, I wouldn’t stress over it as most game publishers seem thrilled about the idea of games in libraries.