Video game law: a new frontier

November 1, 2018
Alum Noah Downs pioneers a growing industry

Even if you’re not a video game fanatic, you may have heard of Fortnite, a wildly popular gaming phenomenon that, since 2017, has propelled to the highest grossing free video game in history. The game’s success could be attributed to many factors, including its bright graphics, its broad accessibility across different platforms, or its catchy animation (and equally catchy dance moves).

But, according to Richmond Law alum and video game attorney Noah Downs, L’15, a key component of the game’s success is a parallel industry that’s sprung up around the video games – and is growing just as quickly: live streaming entertainment. The concept is simple: gaming enthusiasts can watch professional video gamers play their favorite games – like Fortnite – live, in real time, through a host of different platform options. Twitch, Mixer, and even YouTube are a few of the popular channels. Viewers can support their favorite players through subscriptions or other interactive incentives, and players can take advantage of paid sponsorships and game-play offers from producers. It’s interactive, addictive, and highly profitable – by some estimates, to the tune of $70 billion by 2021. Through his legal practice in Richmond, Downs is helping his clients claim a piece of that pie.

Downs launched his legal career at a boutique IP law firm after earning the Intellectual Property Certificate at Richmond Law. He landed at McDonald, Sutton & Duval in 2016. About two months into his new position, Downs was hard at work trying to build up his client base when, through a mutual friend, he connected with Ninety9Lives, a music label for gamers that just so happened to be on the hunt for an IP attorney. Ninety9Lives was growing – including teaming up with a new project called Pretzel, a music solution exclusively for live streamers – and they knew they needed a lawyer who was familiar with the landscape to come along for the ride.

Downs accompanied his new clients to his first gaming convention, called PAX East, in 2016. What he experienced was “eye-opening”: tens of thousands of video game enthusiasts, vendors, designers, producers, all energized by a passion for gaming. “I was like a kid in a candy store,” said Downs. “I had a connection with these people – I wanted to be a part of it.”

Beyond his existing love of video games and IP expertise, what worked in Downs’ favor is the shortage of knowledgeable lawyers in the niche field. So when one of his clients with Ninety9Lives said, “We want to teach you how to be our lawyer in this space,” Downs jumped at the opportunity.

Since then, Downs has immersed himself in the ins-and-outs of video game law, from the Digital Millennium Copyright Act to social media endorsements for gamers. The business of game-streaming presents a unique legal challenge because, at its core, “the industry is illegal,” said Downs. Most of the gamers are streaming content without licensing or explicit permission. But because many of the video game producers benefit from the streaming industry, they don’t just turn a blind eye – they actually encourage the streamers to play their games for a broad audience. “The two industries feed on each other,” said Downs.

That’s not to say that some video game producers don’t take licensing and infringement issues seriously. And that constantly evolving landscape of the gaming industry makes it ripe territory for IP and entertainment lawyers. “This is the wild west when it comes to entertainment,” said Downs, “because there’s almost no case law whatsoever.” That’s part of what makes the experience exciting: “We’re pioneering law,” added Downs.

Most of these professional streamers are new to business and are struggling to understand the legal issues that come with their industry. “They need more information,” said Downs. And he’s excited about being a source of that information – which is in high demand. His recent article for Pretzel, “Let’s take a minute to talk about the DMCA,” for example, got over 17,000 views in the year since it’s been published

Today, Downs finds himself presenting at these same conferences that just last year he was attending as a wide-eyed newbie. At the most recent TwitchCon, in San Jose, he was a panelist in four different sessions on everything from “Essential Business and Legal Advice for Every Stream” to fair use and fan content. And he’s starting to make a national name for himself in the industry. Just this summer, a columnist from Forbes turned to him for expert insight on Twitch. “It’s fun educating people about it,” said Downs. “It’s an underserved industry.”

You can follow Noah Downs on Twitter at