Post Authored By: Natalie Elizaroff
Streaming on popular platforms such as Twitch, YouTube, Facebook Gaming, Periscope, and more is becoming a career alternative for some. It can be very difficult to become a content creator/streamer and many creators will stream for several years with little to no growth. But for the ones who manage to break through, it can be a great career. Content creators that gain enough of a viewership are allowed to upload emotes, which are small emoji-like icons that viewers can use in any chat. These emotes can either be created by the content creator or commissioned from an artist. The dilemma arises when a content creator commissions for emotes because it raises a copyright issue as to who is the valid rights holder.
Who owns the Emote Design?
Twitch provides clear notice that “[w]ithout express permission, we do not allow use of emotes. Twitch and/or third parties own rights such as copyrights, trademarks, and/or rights of publicity in emotes on Twitch. Please note that in addition to [Twitch], the use of an emote may require permission from such third parties.”  Accordingly, it is up to the artist and the commissioner to determine the rights. Generally, standard copyright law will apply and all original works of authorship including literary, dramatic, musical, and artistic works will be protected.  Copyright gives a creator the exclusive right to make copies, sell or market works of art, music and literature. In order to obtain copyright protection, the item being protected must be an (1) original (2) work of authorship that is (3) fixed in a tangible medium of expression (such as a digital emote).  All of this boils down to the fact that in a transaction between an artist and a commissioner, the artist remains the true copyright owner.
Art is valuable and unless the artist signed a Transfer/Assignment of Copyright over to the commissioner, the artist will retain all their marketing and distribution rights.  The most common situation between artists and commissioners is a limited license to use the emote for the exclusive purpose that they paid for, i.e. uploads an emoticon on Twitch. Most of the time these licenses are verbal or simplified written licenses that do not have any terms or conditions, signatures, or other limitations provided by the artist.
Using Emotes Elsewhere?
The commissioner does not have the right to use an artist’s work for separate merchandise, advertising, and promotional materials unless those permissions were expressly noted during the transaction. If the commissioner proceeds to use the artwork in other mediums other than the limited instance, an artist has the right to intervene and either inform the commissioner that they are in violation of the limited license or try to renegotiate the terms in order to receive a fair payment for their work. This can come in the form of royalty payments (sum of money paid to an artist for the use of their art on each item sold) or a flat fee agreement (one time license fee per emote). 
In these instances, flat fee agreements work best because it alleviates the pressure on artists and commissioners from keeping track of sales and percentages.
How Does Licensing Work?
In order to avoid the copyright dilemma, it is best for artists to implement terms, conditions, and basic licensing language into their websites or invoices. Incorporating these elements is important to ensure that no confusion arises after a transaction has concluded. Licensing should not be confused with an assignment/transfer of rights. In an assignment of copyright rights, the artist sells their ownership rights to another party and has no control over how the third party uses those rights.  A copyright assignment is sometimes referred to as a sales agreement for copyright. In a license of copyright rights, the artist maintains their copyright ownership rights, but allows the commissioner/party to exercise some of those rights without the commissioner’s actions being considered copyright infringement.  Generally, artists and other copyright owners prefer licenses over assignments because it allows for the artist to maintain and exercise some ownership control over the rights and how the commissioner uses the copyright holder’s rights.
Regardless, this language effectively acts to inform commissioners of the artist’s rights in their work and details what permissions the commissioner has in the art. Most basic licensing language can be found online and tailored to the artist’s needs. If an artist ever has any questions or wants a tailored license agreement for their work, it is imperative that they contact an experienced attorney.
Streaming and content creation are very popular forms of expression. Moreover, the boon of digital expression is just beginning and the thousands of new content creators flooding the market are ill-informed of their rights and the rights of others. It is important for artists and content creators to stay informed as the market keeps growing. As a final note, it is never too late to renegotiate and it is never too late to protect your artistic rights.
 Trademark Guidelines, Twitch (July 11, 2018), https://www.twitch.tv/p/en/legal/trademark/.
 Copyright in General, Copyright (Nov. 17, 2021), https://www.copyright.gov/help/faq/faq-general.html.
 Assignment/Transfer of Copyright Ownership, Copyright (last visited Nov. 17, 2021), https://www.copyright.gov/help/faq/faq-assignment.html.
 Maria Brophy, What to Charge for Art Licensing – Royalties Advances and Flat Fees (Apr. 26, 2012), https://mariabrophy.com/art-licensing/what-to-charge-for-art-licensing-royalties-advances-and-flat-fees.html.
 Assignment of Copyrights, JUSTIA (last visited Nov. 17, 2021), https://www.justia.com/intellectual-property/copyright/copyright-assignment/.
About the Author:
Natalie Elizaroff is a 3L at UIC School of Law, recently renamed from the John Marshall Law School. She is the Candidacy Editor of the Review of Intellectual Property Law, President of the Intellectual Property Law Society, and Treasurer of the Video Game Law Society. Prior to law school, Natalie graduated with a B.S. in Molecular Biology from Loyola University Chicago. Natalie currently works as a Law Clerk with Advitam IP, handling trademark litigation, patents, and other IP-related matters.