Game Publishers vs Let’s Players: Who Deserves the Ad Revenue?

What the Law Says

Fair use is dictated by four criteria, and a judge must determine that the work fits each criteria in a significant enough way to warrant a fair use exception. These criteria are:

1. The work must be transformative, not derivative

This means that the work created through fair use must be a unique work in its own right, rather than simply being a rehash of another work. If you were to sell a copy of Alice in Wonderland with Alice replaced by a boy named Thomas, that would be considered a derivative work, as it does not significantly change the story of Alice in Wonderland. Conversely, if you were to write a story that uses the basic structure of Alice in Wonderland but change it in significant ways, it would (likely, but it’s up to the judge) be considered a transformative work.

2. Facts and ideas are legally separate from copyright, and a work must be publically available to be covered under fair use.

The first part of this clause doesn’t matter much to LPs, but the second does. This part of fair use was put into play to prevent creators from plagiarizing a work before it is actually released. In short, LPing unreleased games is a no go. As soon as a game has met its release date or is otherwise publicly available, you’re good to go. If your average person can’t get the game somehow, you’re in trouble.

3. The greater the amount of material taken from a copyright work, the less likely it is covered by fair use

This aspect is tricky. This can refer to the quantity of material, obviously – taking an entire movie and putting it in your work, for example – but it can also refer to the “heart” of the material. In regards to LPs, this means that you have to change the meaning of the work if you use extensive game footage. Commentary can do this, as can clever editing or modding. It can also force LPers to be more liberal with their video cuts, as long stretches of relatively unedited footage might run afoul of this clause.

4. The fair use creator must not infringe on the market of the original work.

This is usually the most important part of any fair use argument. In order for a piece of media to be considered fair use, it shouldn’t be considered a “replacement” for the original media. In the context of LPs, this means that your video should not be considered a replacement for the original game. Naturally, the longer you wait to LP a game (thus allowing the people who want it/know about it to snap it up), the less likely you are to run afoul of this part.

Now, when it comes to fair use, the waters are a bit muddy. In regards to commentary over existing copyrighted media, most commentary providers (the most notable being Rifftrax) do not sell DVDs with the movie and commentary combined. They also receive permission from the copyright holders to do showings of their commentary on the big screen. It is plausible – but currently untested – that commentary could fall under fair use in the sense of a transformative creation.

Additionally, there is the issue of each game playthrough being counted as a specific “interpretation” of the game, as each time through the game is different for each person. You might play the game completely differently, such as doing a low-level run in Dark Souls or running around willy-nilly in Grand Theft Auto 5. This is far more subjective than the commentary, has plenty of questions behind it regarding how much control the player really has, and has also not been tested in court.

There’s also the age-old issue of money. It makes the world go round, and – in the case of several prominent LPers – lines the pockets of those who can strike the big time. Whenever money is added to a situation, ethics becomes far more confusing, and fair use is no different.

Finally, there’s the notion that if Nintendo doesn’t go after LPers, their IP will be devalued due to distillation. This concept is very simple: the more you defend your IP, the stronger it is. It’s not often seen in copyright proceedings, but it’s definitely a plausible aspect of fair use law. Gamasutra has a very excellent article on the concept of defending intellectual property by a researcher at the Rutgers Institute for Information Policy and Law, and it goes into a great amount of depth regarding what short-term sacrifices Nintendo may make (pissing off LPers) to protect their long-term copyrights and trademarks.

So, who legally deserves the money?

Does the developer deserve it for making a game that people can enjoy? Does the LPer deserve it for making a commentary that pulls in viewers? Legally, it could be argued that the developer is entitled to that profit. Does that mean an LPer should put tons of time, effort, and love into a video without being rewarded for their efforts? In the end, it would have to be decided in court. It doesn’t usually make it to court, though. This means it’s up to YouTube.

What YouTube Says

YouTube is, for all intents and purposes,  judge, jury, and executioner in regards to Let’s Play content. It’s worth taking a look at their policy on it, and their terms on monetization of any video are very clear, although there is an educational clause.

Whether you can use video game content for monetization depends on the commercial use rights granted to you by licenses of video game publishers. Some video game publishers may allow you to use all video game content for commercial use and state that in their license agreements. Videos simply showing game play for extended periods of time may not be accepted for monetization.

Without the appropriate license from the publisher, use of video game or software user interface must be minimal. Video game content may be monetized if the associated step-by-step commentary is strictly tied to the live action being shown and provides instructional or educational value.

While LPs are a legal grey area, YouTube’s policies are not. You can’t monetize a video that uses footage from a game that you don’t have permission for. YouTube reserves the right to remove the videos, mark them as copyright violations, and potentially (though unlikely) outright ban your account.

While the little guy is in a rough spot with LP legality, the big-name LP channels have it even worse. Notably, Machinima is the largest channel of games and game-related media, and most of their footage is from “contributors” who often post Let’s Play-style videos. It would be a significant blow to Machinima if a large portion of their video inventory was suddenly Content ID-matched.

Regardless of whether it’s legal (probable), required (likely), or ethical (dubious), Nintendo has created a public relations clusterbomb in going after LPers. While once the company of casual gamers and childhood loyalty, Nintendo’s sudden turn has many people increasingly angry with a company they spent the better part of three decades staying loyal to. The long term effect is debatable, but the short term effect is clear. People are pissed, and Nintendo is getting the brunt of their anger.

How do you feel about the evolving state of LPs? Leave a comment below to tell us!


James Murff’s other work can be seen here, and you can follow him on Twitter at @jamesmurff.

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27 Comments on Game Publishers vs Let’s Players: Who Deserves the Ad Revenue?

lol

On May 17, 2013 at 6:40 pm

Uhh publisher? lol. You pay for the RIGHT to play the game, you don’t OWN the game.

Back of every game manual, should read it sometimes.

Evernessince

On May 17, 2013 at 7:44 pm

Don’t mean to feed the troll but you pay to own a license of the game. You OWN a copy of that game, so that copy is your property.

quicktooth

On May 17, 2013 at 8:11 pm

@lol -You’re sick lol, get help.

quicktooth

On May 17, 2013 at 8:15 pm

As I said on the Article announcing Nintendo was shooting itself in the foot, Nintendo’s actions are those of a company losing out in an industry it used to be enormous in, mere grabs for control becuase they can’t get anything else (not from the 3DS and WiiU anyway). But lpers are ALSO wrong for thinking they can take that much from a content creator (ANY content creator) and not pay them a cent. The people who make superman cups and superman underwear pay a license fee, why shouldn’t lpers? Everyone wins! Videos pay real money to lpers, Nintendo gets a cut FROM THEIR ADVERTISING ITSELF, Nintendo sells more stuff, watchers are happy. No one screws the pooch and it all just works exactly as it does in every other industry. Well, are we all going to get along now?

Dach

On May 17, 2013 at 9:50 pm

@Quicktooth

What you say makes a lot of sense, unfortunately the AAA industry seems to have turned into a minefield of suits and executives that see games as nothing more than a money press. There is no respect for good ideas and everything is pumped out ad-nauseam to earn the quickest dollar possible.

No one wants to think in the long term when they set all their goals of “success” by monthly [or even weekly] sales.

The industry as a whole needs to come to terms that it will more than likely never see the return of the 2007 bubble [economically and commercially].

Troll Slayer

On May 18, 2013 at 2:32 am

lol is really scraping the bottom of the barrel now. It’s actually kind of sad to witness just how desperate he is for attention.

Tanami

On May 18, 2013 at 4:33 am

I just recently started making Let’s Play’s, and the monetization aspect is a mess. for example one play list is a LP of one game, all the video’s in that play list are of the same style; me playing the game and giving commentary while I play, giving hints and tips and all that. I edit out long stretches of gameplay where there is no commentary, don’t giveaway the plot or ending or other spoilers. etc. For every video I get a email from YT a day later asking me about the commercial rights and I tell them it’s a Let’s play which should fall under the elusive ‘Fair use’. Now the funny thing is, although all the video’s in the play list are of the same nature, some video’s get monetized right away, while others get rejected or stay on ‘monitoring for possible review” or “Under Review”. It feels totally random.
Of course the game publisher owns the rights to the game, but the creator of the LP put’s ALOT of time into making the video’s and personalizing it, making it a unique experience for each individual LP creator.
For someone like me who just started out, I don’t make a dime, which is fine, I do it for the love of the games and trying to find like-minded gamers and encourage other people to go out and buy the game.
To me the solution would be to share the revenue, amongst the three parties involved being the game publisher/creator, the LP maker and the medium it is shared on (in my case YT). The game gets more advertising and all parties get’s their share of the money.

Aedelric

On May 18, 2013 at 6:48 am

Glad you do not run the world `lol´ it would be a horrendous place if you did.

Also, we own the games we buy, hence being legally allowed to sell it on as second hand games after purchase. Anyway, stop trolling the topics, you do it all the time, enough is enough.

As for Lets Plays, it is a form of free advertising that reaches a great many people it may not normally reach and a publisher/developer is handicapping themselves by stopping such videos. Nintendo is not going to win any fans with their actions, but they are only one company and few are stupid enough to follow their example.

Murs 'Nine

On May 18, 2013 at 7:24 am

Why does it have to be in the extremes of either-or. Yes the developer/publisher owns the game, and the LP’s border on the line of fair use / alteration when showing off said game. But Couldn’t a 50/50 or so split put into place?

Tanami

On May 18, 2013 at 8:26 am

Here is a little example of the effect a LP can have; A friend of mine is a casual game, maybe even lower then casual. I talked about a game to her a lot and how much I like it, that didn’t make her buy the game. However when she started watching my LP she told me she is going to pickup the game as she liked it so much when she saw it in action and wants to play it for herself. So yeah, split the revenue amongst the related parties and in my opinion it’s win-win.

lol

On May 18, 2013 at 1:11 pm

Just pulled out a random game manual, lets see;

“Unauthorized copying, reverse engineering, transmission, public performance, rental, pay for play or circumvention of copy protection is strictly prohibited”

“public performance”

Remember kiddies, they started adding this line into every game manual after 2005 – 06 because of the invention of

DUN DUN DUN Youtube.

@Aedelric

Here ya go buddy;

(Publisher here) grants you a personal, limited, non-exclusive license to use the Product for your non-commercial use. To the fullest extent permitted by applicable law, this license granted to use the Product is non-transferable. You may not rent, lease, lend, sell, redistribute or sublicense the Product. You may not copy (except as expressly permitted by this license and any other applicable terms, conditions, or usage rules), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Product, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the licensed application). You may not remove or alter (publisher here) or its licensors’ trademarks or logos, or legal notices included in the Product or related assets. Any attempt to use the Product in breach of the terms of this Agreementis a violation of the rights ofActivision and its licensors. If you breach the terms of this Agreement, you may be subject to prosecution and damages. The terms of this Agreement will govern any upgrades provided by (publisher here) that replace and/or supplement the Product, unless such upgrade is accompanied by a separate (and/or updated) agreementin which case the terms of that agreement will govern.

So yeah, you don’t own .

Getting So Tired of This

On May 18, 2013 at 1:23 pm

@lol – look, junior. You know damn well you’re comparing chalk with cheese here. At no point was the issue of ‘unauthorised copying’ brought up. If that’s what you interpreted from this story then that proves conclusively what we all already knew about you, that you are nothing more than a blinkered fantard sucking the balls of the corporatocracy and spouting utter crap on here in order to get noticed. You support proven liars in the senate who claim gamers shouldn’t have a say on their own industry, you support CISPA of all things, and you defend EA at every opportunity. The link between the lot? They directly oppose both the consensus of users on this site, gamers in general, common sense and ethics.

You are the lowest of the low, and we are all thoroughly fed up of reading your uninformed, immature drivel on every sodding article posted on this site. Trudge back to IGN or one of the other safe, identikit mainstream sites that will allow you to wallow in your ignorance.

I must also criticise Gamefront moderators, we all know full well that you have the potential to remove comments yet this idiot continues to be allowed to draw unlimited amounts of attention to himself and his vapid comments at a rate that exceeds even the most venomous parody. He is a complete liability to the site’s image and should have his posted removed from now on. I don’t advocate censorship and oppression but considering he himself advocates it simply because it makes him look different, I would have no sympathy for this little turd.

Do us and yourselves a favour and get rid of him now, before it starts to push potential new users away from the site.

Everyone

On May 18, 2013 at 1:28 pm

Dear lol,

. . . . . .. . . . . . . . . . . ,.-‘”. . . . . . . . . .“~.,
. . . . . . . .. . . . . .,.-”. . . . . . . . . . . . . . . . . .“-.,
. . . . .. . . . . . ..,/. . . . . . . . . . . . . . . . . . . . . . . ”:,
. . . . . . . .. .,?. . . . . . . . . . . . . . . . . . . . . . . . . . .\,
. . . . . . . . . /. . . . . . . . . . . . . . . . . . . . . . . . . . . . ,}
. . . . . . . . ./. . . . . . . . . . . . . . . . . . . . . . . . . . ,:`^`.}
. . . . . . . ./. . . . . . . . . . . . . . . . . . . . . . . . . ,:”. . . ./
. . . . . . .?. . . __. . . . . . . . . . . . . . . . . . . . :`. . . ./
. . . . . . . /__.(. . .“~-,_. . . . . . . . . . . . . . ,:`. . . .. ./
. . . . . . /(_. . ”~,_. . . ..“~,_. . . . . . . . . .,:`. . . . _/
. . . .. .{.._$;_. . .”=,_. . . .“-,_. . . ,.-~-,}, .~”; /. .. .}
. . .. . .((. . .*~_. . . .”=-._. . .“;,,./`. . /” . . . ./. .. ../
. . . .. . .\`~,. . ..“~.,. . . . . . . . . ..`. . .}. . . . . . ../
. . . . . .(. ..`=-,,. . . .`. . . . . . . . . . . ..(. . . ;_,,-”
. . . . . ../.`~,. . ..`-.. . . . . . . . . . . . . . ..\. . /\
. . . . . . \`~.*-,. . . . . . . . . . . . . . . . . ..|,./…..\,__
,,_. . . . . }.>-._\. . . . . . . . . . . . . . . . . .|. . . . . . ..`=~-,
. .. `=~-,_\_. . . `\,. . . . . . . . . . . . . . . . .\
. . . . . . . . . .`=~-,,.\,. . . . . . . . . . . . . . . .\
. . . . . . . . . . . . . . . . `:,, . . . . . . . . . . . . . `\. . . . . . ..__
. . . . . . . . . . . . . . . . . . .`=-,. . . . . . . . . .,%`>–==“
. . . . . . . . . . . . . . . . . . . . _\. . . . . ._,-%. . . ..`

Please stop. It’s embarrassing now.

Sincerely,
GameFront.

James Murff

On May 18, 2013 at 1:30 pm

To note, I never made the assertion that the player owns the game. However, the player DOES own the footage they take of the game. Whether they have the rights to broadcast or (more importantly) monetize said footage is what this article is about.

Aedelric

On May 18, 2013 at 3:17 pm

Please, stop embarrassing yourself `lol´.

Drizzt

On May 19, 2013 at 1:53 am

As a viewer of some LPs (usually before I decide, whether I buy a game or not) I strongly prefer the “amateur” LPs. Because as soon as somebody tries to make money off it, I can’t be sure, the player isn’t taking money from the publisher/studio too. And in that case a good LP might be able to smooth over some rough edges in a game, which might tip the scale towards “no buy” for me. If you do a LP for fun however, the reaction to these rough spots is natural and usually not very favourable.

I guess, I’m with the old school LPers on this one.

Steven

On May 19, 2013 at 3:33 am

To follow up on others’ dismantling of ‘lol’, I’d like to also point out that he

- defends EA Origin but doesn’t bother explaining why
- believes only children and adult virgins play Call of Duty for the single player (which is, in fact, an unintentional criticism of the game for not having an engaging story, although obviously it’s not true as everyone I know played single player and enjoyed it and none of them fit his sloppy generalisations)
- said that Infinity Ward provided a courtesy to gamers by pulling the “24/7 365 days a year” Nuketown preorder DLC less than a week after Black Ops 2 went on sale then reinstating it after the backlash became unmanageable without apologising for their obvious deception
- CONSTANTLY plays to the appeal to the majority to handwave genuine complaints, even when those complaining are proven to be the majority or at the very least a majority large enough that they can’t or shouldn’t be ignored (e.g. Nuketown again, and of course the ending to Mass Effect 3)
- thinks that EA created Star Wars: The Old Republic, which speaks volumes for his lack of industry knowledge
- uses the name ‘lol’, which in itself should be grounds for instantly being banned from any site on the internet
- actually uses the acronym ‘lol’ in his comments as well, which means he’s stating his own name

Honestly, it’s so relentlessly childish that it’s not even worth getting that worked up about. He’s obviously either very, very young or just very lonely. All you can do is feel a bit sorry for him.

Steven

On May 19, 2013 at 4:49 am

*Obviously I meant Treyarch in my last comment, not Infinity Ward. Though considering who we’re talking about here, I doubt the self-correction is necessary. I might as well have said it was Sega who developed Black Ops and he wouldn’t have noticed the error. After all, he isn’t really a gamer.

Vivid8

On May 19, 2013 at 5:25 am

First let us make one thing clear, Law and Right/Wrong/Morals/Ethics have NOTHING to do with one another. Law is a matter of FINANCIAL CLAIMS. As for the situation, I say at most nintendo deserves 25% at most. Let’s Play stuff is like any magazine or community based thing. It’s self serving. By them doing what they do, they increase the market for what nintendo does. They create, or expand, the current base. I know it doesn’t seem like it, but people because fans of shows like Let’s Play or X Play or whatever and then when those shows display content or make recommends to people who like the show they then go out and buy it. of course they’d have no show without the original IP from nintendo so as I said, at most 25%. I know the big companies want to exterminate the little guys and prove how powerful they are, end the indie scene (unless they can buy it and profit whore it like everything else) and really begin the economic destruction that only mega corporate greed can achieve… but f**k ‘em. Just because they want to burn the world down doesn’t mean let them.

Steven

On May 19, 2013 at 5:31 am

I made another mistake in my original post. ‘lol’ actually said EA made Knights of the Old Republic, which was of course released many years before EA bought BioWare. Star Wars: The Old Republic was later published by EA. I confused myself because his comment was on an article about EA getting exclusive licensing right for Star Wars from Disney.

However, don’t mistake that for a simple typing error, as ‘lol’ also believes EA was the original publisher for the first Mass Effect. I don’t even need to explain how many ways that fails as a thought process.

SanMan

On May 19, 2013 at 7:59 pm

You know I tried to make let’s plays. Bought a capture device, even recorded a video of it, put it out up on youtube and got 3 views, I didnt add commentary to it because I didnt have any software to do it.

Then you have to buy filemarker pro, learn how to use it, actual record the video, edit it, then add in your commentary, build up a subscriber base of people who actually like your content, and then after a year or so you might make some money. Personally I stopped after the first video because it was just too much work, the idea that you shouldnt get paid for your work seems absurd.

The Penguin

On May 20, 2013 at 6:23 pm

If someone who actually worked on the game were to LP it,they wouldn’t point out the bad things about it,being afraid people wouldn’t buy it,but a commentator who is in no way affiliated with the company will talk about both the good and bad sides of said game.
Also,going back to what I said about people from the company LP’ing the game,if people see only the good side of the game,they’ll be tempted to buy it,get home and decide it sucks ass then complain on the internet.

mr mittens

On May 20, 2013 at 10:17 pm

@lol, sometimes things on manuals are adhesion contracts

you have full right to your use of the item you bought, they will try to say its a license, but you own the software. Courts will typically look at what average consumers expect without reading the fineprint in a wall of text. What did you pay? $60… thats pretty solid cash for a game in most cases, and you can resell it, etc.

Also, regarding lets play, it depends largely on how much commentary and effect the viewer has on it for fair use.

1) the companies have no right to profit – its either the LPer, or nobody. Its at least a derivative work that the company has no rights to. They can maybe shut it down, but they cant get $.

2)at best, its fair use, and the LPer has 100% rights to use it. THe more commentary, parody, criticism involved, the better, but I have a feeling that in court, some of the LP community would lose. But but but, the actual gameplay is probably fine. THe larger issue is cutscenes, which do not depend or turn on the player.

Freedonadd

On May 21, 2013 at 8:51 am

@lol

So I suppose if a game’s manual tells me I have to open wide and swallow a healthy helping of turd in order to have access to a game, that’s totally legit right?

Ever heard of Illegal clauses kid? Not everything written on that piece of paper OR EULA is exactly constitutional. It’s just fool’s bait (which you happens to fall right into at an alarming frequency).

Alan Taylor

On August 4, 2013 at 6:58 am

I believe both the Game Publishers and Lets Play Video Content Creators should receive a percentage of the revenue equally alongside Google’s Youtube. I think this would work because the game publishers can gain free publicity for their games receiving revenue for the hard earned property they’ve worked on while the content creators are paid for their efforts in creating the videos which help promote games. the average video must take about ten hours to create when taking into account recording voiceover, rendering and uploading. I think the content creators will appreciate the revenue which will only encourage users to create more content. I’m wanting to start making lets play videos but haven’t yet while I’m going around all of the gaming publishers. I’ve found about half are happy for lets play videos while the other half including most of the big players aren’t offering fans to create these videos for earning revenue though I’m sure in all cases, every company has said that they are happy for fans to create videos as long as they don’t monetise.

I don’t feel it’s fair for companies to claim 100% of the revenue where content creators have spent quite some time producing content if it’s well constructed and not just a recording of the game without commentary etc. The other thing to keep in mind for example is that I’ve probably spent about 400 – 500 pounds on EA Games (as an example) in the past decade which is more than what I’m likely to earn from Youtube ads.

I don’t buy that many games anymore, not because I don’t want to but because I just can’t afford it. A good example I’ve seen is Activision Blizzard. They have a clear section on their website called Video Policy. Whether or not a game publisher wishes to offer revenue sharing, no video creation or simply offer users the right to make videos but not earn money from them, I think it would be good to see many of the big players have a much clearer statement of what they allow.

Oddly, I’ve not seen a single video from any video game publisher stating what they allow? Perhaps a video to their fans explaining their rules would be an excellent suggestion for a game publisher to follow up. Moreover, what about fans sending game publishers video responses with a ‘pitch’ of what they would like to do. I’m sure that would be appreciated by the game publishers.

JayXan

On October 30, 2013 at 3:09 am

if they’re going to take our revenue they better give us a salary for working for them.

Shadow

On May 10, 2014 at 6:15 am

i don’t see the big deal anyway. Everyone from Nintendo is a got anyway. Also noone buys there anyway so yeah.