Do Children Actually Yearn for the Mines? Young UGC Creators as “Employees”
By J. Clayton Eaton; Photo Credit: Rainer Stropek
Online gaming platforms such as Minecraft, Fortnite, and Roblox rely on creators of user-generated content (UGC) to make additional player skins, game maps, “mods”, game modes, and more, to drive player traffic to the site.[1] Many of these UGC creators are minors who started as players on the platforms before making their own content that the platforms host for other players to purchase.[2] Purchases on the platforms are made with in-game currency, whether it is V-Bucks, Minecoins, or Robux.
UGC creators make money for their labor by receiving a portion of the sales revenue their products generate, after the platform takes its cut of course.[3] Up to this point, there have been few standards for how UGC creators are to be compensated. The cut that a platform takes usually ranges from 12% (Fortnite) to 30% (Steam).[4] Other platforms, like Roblox, pay no money to its UGC creators, and instead redirect a mere 17% of the Robux generated from the sales back to the creator, which then requires a subscription fee and conversion into real dollars before money can be made on the platform.[5]
Problematically, UGC creators have traditionally had few methods to enforce their claims to compensation. For one, these UGC creators are often minors, and they are unable to negotiate for better compensation given their age and the market leverage these platforms have over their player bases.[6] On top of that, any rights that UGC creators may have under common law doctrines, such as copyright, are usually waived or carved down when they sign the terms and conditions to use the platforms,[7] and courts tend to rule that these contractual agreements preempt common law labor protections.[8]
This compensation structure may change after the recent Johnson v NCAA case, which saw the potential expansion of employee rights under the Fair Labor Standards Act (FLSA) to another entertainment sector—sports.[9] In the Johnson case, the court held that college athletes may qualify as employees by applying a four-factor test: 1) whether the individual performs “services” for the potential employer, 2) whether the work is primarily for the benefit of the potential employer, 3) whether the individual labors under the control or right of control of the potential employer, and 4) whether the services are performed in return for express or implied compensation.[10]
UGC creators may qualify under the test laid out in Johnson, especially as their work benefits the platforms whose entire business model is built around hosting the UGC content, the platforms have certain rights over the UGC content from the terms and conditions the users sign, and compensation is often given to UGC creators in the form of partial sales revenue.[11]
Time will tell whether UGC creators can be considered employees under the FLSA, as college athletes may be. Such an expansion of rights could standardize the compensation structure used by these platforms and bring additional protections for young content makers that the FLSA gives to employees.
J. Clayton Eaton is currently a 2L at Vanderbilt Law School from Kaysville, Utah. He plans on returning to Utah upon graduation to practice corporate law.
[1] Jakob Stokes, Pocket Castles and Custom Skin: Championing Transparency in the Monetization of User-Generated Content in Video Games, 15 Cybaris An Intell. Prop. L. Rev. 107, 116–17 n. 1 (2024).
[2] People Make Games, Investigation: How Roblox is Exploiting Young Game Developers, YouTube (Aug. 19, 2021), https://www.youtube.com/watch?v=vTMF6xEiAaY.
[3] Stokes, supra note 1, at 109–10.
[4] See People Make Games, supra note 2.
[5] Id. Roblox appears to be an outlier in the industry and takes over 80% of the sales revenue from the UGC content it hosts. David Curry, Roblox Revenue and Usage Statistics (2024), Business of Apps (July 8, 2024), https://www.businessofapps.com/data/roblox-statistics/#:~:text=Roblox%20made%20%242.7%20billion%20in,increased%20its%20revenues%20by%20107%25.
[6] See People Makes Games, supra note 2.
[7] See, e.g., Roblox Terms of Use, Roblox, (Jan. 6, 2025), https://en.help.roblox.com/hc/en-us/articles/115004647846-Roblox-Terms-of-Use#creator-terms.
[8] See, e.g., I. Lan Sys. v. Netscout Serv. Level Corp., 183 F. Supp. 2d 328 (D. Mass. 2002); see also Melinda J. Schlinsog, Endermen, Creepers, and Copyright: The Bogeymen of User-Generated Content in Minecraft, 16 Tul. J. Tech. & Intell. Prop. 185, 194 (2013).
[9] Johnson v. Nat’l Collegiate Athletic Ass’n, 108 F.4th 163, 167 (3d Cir. 2024).
[10] Id.
[11] See Johnson, 108 F.4th at 167; Stokes, supra note 1, at 109–10; People Make Games, supra note 2; Roblox Terms of Use, supra note 7.