On the value of human labour and creativity in the video game industry
Yin Harn Lee
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Gaetano Dimita
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Michaela MacDonald
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Alina Trapova
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2023 was a wildly successful year for the video game industry, with the release of a large slate of titles that were both critically acclaimed and massively popular: the story-rich, complex role-playing epic Baldur’s Gate 3; the swooping, stylish action-adventure title Spiderman 2; Tears of the Kingdom, the latest entry in the long-running Legend of Zelda series, with its expansive scope and depth; the fast-paced, gorgeously animated rhythm-based game Hi-Fi Rush — to name but a few. Yet, even before the applause from the Game of the Year Awards had died away, the industry was rocked by repeated news of layoffs and studio closures. It’s estimated that over 10,000 jobs in the industry were lost in 2023, and this trend only accelerated into the current year, with over 8,000 further job losses announced as of March 2024. Polling by the organisers of the Game Developers Conference showed that approximately one-third of developers were affected directly or indirectly by these job losses. The impact has been felt by major studios as well as smaller teams. Riot Games, the developer and publisher behind League of Legends and Valorant, announced in January 2024 that it was cutting 530 jobs (about 11% of its workforce), Microsoft reported in the same month that it was laying off 1,900 staff across its various game-related businesses, and Sony Interactive Entertainment shared the news in February 2024 that it was cutting 900 jobs across its studios worldwide. Even teams that have produced commercially and critically successful titles have been impacted: in March 2024 alone, Microsoft closed down both Arkane Austin, the studio behind Prey and the Dishonoured series, and Tango Gameworks, developer of the breakout hit Hi-Fi Rush.

These layoffs and studio closures have been attributed to a number of factors, including rising development costs, consumer shift and market saturation, and most notably a post-pandemic slowdown following an unexpected surge in video game demand during lockdowns, which led video game companies to invest heavily in acquisitions, mergers and staff expansion. Game developers have expressed frustration, disillusionment and worry for the future at the present state of affairs, exacerbated by concerns over the use of generative AI in the video game industry. This has also sparked a renewed interest in unionization, even though this has historically been rare.

This high level of volatility and instability bodes ill for the whole ecosystem. At the heart of the industry is its workforce that needs sustainable, long-term career development in order to thrive. The cyclical boom-and-bust hiring practices of the video game industry (which were commonplace even before the pandemic) lead to job insecurity, demoralization and the loss of valuable skills and knowledge. It is hoped that the current crisis will spur the industry to reflect on its existing practices, to create the conditions necessary for long-term sustainability, and most of all, to appropriately value its most important asset — the inspiring and creative people who actually make and test the games.

The articles in this issue focus on different aspects of creativity that are found within video games, none of which would be possible without the skill and talent of the designers, programmers, artists and QA testers who work on them. Henning Hartwig’s ‘Animated designs revisited – a case study under EU design law’ deals in a clear and systematic way with the oft-overlooked issue of design law as applied to the animations found in video games. In ‘It is not just a click: protection of in-game behaviour data as biometric data under the GDPR’, Fatih Talha Boyraz considers the possibility that data captured about players’ in-game movements – such as button presses, keystrokes and mouse movements – may amount to biometric data within the meaning of the General Data Protection Regulation, and the legal implications of such a conclusion. Casey Windsor considers in ‘The Visual Rights Act in augmented and virtual realities’ the intriguing question of the moral rights issues raised by AR and VR games, and the extent to which moral rights protection extends to the digital modifications made to real world art. ‘Speaking of games: automated content moderation of voice interactions in video games under the DSA’ by Sarah Van Hoeyweghen explores whether it is it feasible and reasonable for online platforms to effectively deploy automated content moderation during real-time voice interactions in multiplayer games, while simultaneously ensuring full compliance with the requirements of Article 14 of the Digital Services Act (DSA) and respecting the right to freedom of expression in particular.

To conclude the issue, the case analysis ‘Wargaming v. Blitz Team dispute in Belarus, the US and Cyprus’ by Polina Artemenko, takes us through the contentious Wargaming v. Blitz Team litigation in the three jurisdictions, exploring and analysing in detail the copyright and trade mark disputes arising between industry leader Wargaming and a team of ex-employees who left in order to found their own game studio, Blitz Team (now operating as Fire Press Games).

Happy reading!

The editorial team

Yin Harn, Gaetano, Michaela and Alina