Let’s Play Videos : Fun Copyright Infringement…by Who?

Each month, Felix Kjellberg, aka YouTuber PewDiePie, pulls in anywhere from $140,000 to $1.4 million in YouTube ad revenue. Again: each month. PewDiePie is a Let’s Player, someone who posts videos of him or her self playing a video game, often with funny (and explicit) commentary along the way.

FYI – NSFW:

Let’s Play videos have racked up millions of views and can be “an excellent source of viral marketing for developers and publishers alike,” according to Gamasutra’s Mona Ibrahim. The problem is this: who has the right to the profits of these videos since they are using copyrighted game footage – the Let’s Player or the game developer?

There are two possible answers: the profit should go to the original game developer because, well, its their game, or the profits should go to the Let’s Player because the videos are derivative works. Therefore, all original commentary, video editing, or other transformative or adaptive content in the video is protected. However, use of the original game play footage is not protected because it’s copyrighted and, in most cases, not likely to be protected under fair use.

YouTube’s Content ID system has already selected an automated answer: profit should go to the original game developer. Content ID helps resolve copyright management issues that stem from ease of distribution and reproduction. It helps copyright holders find their content across YouTube via reference files they’ve uploaded and gives them back the right to distribution and profit. Copyright holders of popular content will have their settings automatically place ads on their copyrighted content found by a Content ID match.

 

Unfortunately, YouTube’s automated answer to who deserves profits from Let’s Play videos often causes the game developers to now be the copyright infringers. If the Let’s Play video is not just a simple run-through of the game, then it is derivative, and the Let’s Player has the right to profit. Oh, irony. GG.

Several developers have weighed in on this issue. Some publishers, like Ubisoft, Blizzard and Capcom have all publicly stated that they will help YouTube users affected by this issue. Ubisoft, according to IGN, stated that Let’s Players should “leave the video live and get in touch with the publisher directly. It will then reach out to YouTube to get the video cleared.”

Nintendo released a kindly worded statement that seems similar, but please read closely:

As part of our on-going push to ensure Nintendo content is shared across social media channels in an appropriate and safe way, we became a YouTube partner and as such in February 2013 we registered our copyright content in the YouTube database. For most fan videos this will not result in any changes, however, for those videos featuring Nintendo-owned content, such as images or audio of a certain length, adverts will now appear at the beginning, next to or at the end of the clips. We continually want our fans to enjoy sharing Nintendo content on YouTube, and that is why, unlike other entertainment companies, we have chosen not to block people using our intellectual property.

The most important words are “of a certain length,” and apparently, Nintendo has found enough Content ID matches of a certain length to really annoy people.

Personally, I believe that it is appropriate to use audio and visual clips from games in Let’s Play videos. The videos are fun, funny and often informative about games. If someone did a Let’s Play video of a game of mine, I would probably just be grateful it were given attention in the first place. If someone is making thousands or millions of dollars off of playing my game publicly, I think it’s safe to assume that they have millions of viewers, several of whom will probably go on to buy my game.

The secondary issue, beyond who has rights to profit of Let’s Play videos, are that of the Content ID system. In this case, it sounds like several companies are being responsible in trying to work with its community of fans. I can’t foresee any changes to the automated system that would avoid hurting either entity at some point – I believe that some things just can’t be automated. The solution is to just make sure everyone understands how copyright and the Content  ID system work and to make sure each entity works together to resolve issues.

Sources:

Cheong, I. M. (2013, May 1). Nintendo helping to resolve some youtube issues: Youtube policy changes could be causing flagged videosIGN. Accessed on 3/30/14.

Ibrahim, M. (2013, Dec. 12). Deconstructing let’s play, copyright, and the youtube content id claim system: A legal perspectiveGamasutra. Accessed on 3/30/14.

Karmali, L. (2013, Dec. 13). Nintendo helping to resolve some youtube issues: Youtube policy changes could be causing flagged videosIGN. Accessed on 3/30/14.

Zoia, C. (2014, March 14). This guy makes millions playing video games on youtubeThe Atlantic. Accessed on 3/30/14.

Meredith Hayley Greer

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