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!