The Strange World of “Let’s Play” Videos and the Copyright Problems They Create

I’ll just have to admit it. I was wrong. With two teenage sons at home, you could hear my frequent exhortations to put down the video gaming controller and find something more constructive to do, like the ever unhelpful parental suggestion of “read a book.” These pleas were frequently accompanied by me adamantly stating “you aren’t going to be able to make a living playing video games.”

I was wrong.

Meet PewDiePie. 1 His real name is Felix Arvid Ulf Kjellberg, and he lives in Sweden. According to Forbes Magazine, he makes $4 million a year…(ugh)… playing video games. 2 How? He videos himself playing the games, along with live video of the game being played, adds his own commentary that “has been described by various outlets as goofy, energetic, obnoxious and filled with profanity,” 3 then uploads them to his YouTube channel. As of February 2015, his channel had 34.8 million subscribers, and his videos have been watched more than 8 billion times. 4 If one partners with Google to throw a few advertisements in front, then you have a serious money making operation.

Welcome to the strange world of “Let’s Play” videos. Now perhaps this will mark me as a hopelessly out of touch old fogey, but I would think that the fun would be in playing the game, not watching someone else play a game. Yet I see my kids, on their computers and smart phones, doing exactly that – watching videos of other people playing video games accompanied by the video guys laughing loudly at their own jokes and a healthy dose of what seems like never ending streams of profanity.

What this really amounts to is the creation of a derivative work, done entirely without permission of the creators of the games themselves. And the video game producers are starting to take notice.

This March 27, 2015 article in Wired magazine details the problem. 5 They recount the experience of a girl referred to as Anela (not her real name) who made several popular videos of Nintendo games, and started her own YouTube channel which now has 50,000 subscribers. Exactly how Nintendo found out is unclear, but either because of a DMCA claim by Nintendo or a Content ID match, her videos are still monetized, but now Nintendo takes the revenue. 6

The article paints a very sympathetic portrait of Anela, suggesting that she is but a hapless teenager, but a closer look reveals her to be around 21-22 years old. As seen above, these videos can generate serious income, and Nintendo, which has lost money for the last three years, 7 is no longer content to look the other way.

This brings us back to two topics that have made the pages of this blog before: the “transformative use” test 8 and the vagaries of Google’s Content ID system. 9

One could make an argument that since the videos add commentary of the game player, that the result is “transformative” and thus fair use. My reply would be that whether something is ultimately judged to be “transformative” depends largely on where the suit is filed. If it is filed in New York, where the Second Circuit holds sway, then your chances are pretty good. If it is filed in Chicago, where the rulings of the Seventh Circuit control, I’d say you’re out of luck.

So let’s take a look at our four fair use factors:

PURPOSE AND CHARACTER OF THE USE: The argument will be that the commentary, plus including the visuals of the person playing the game is “transformative” and thus fair use. But just labelling something “transformative” is not a trump card that makes it automatically fair use, even in the Second Circuit. One has to evaluate the level of the commentary. From my observation, most of the commentary is of the “whoa dude, look at that!” variety and the ever helpful “Arrgh! He’s after me! &*^$&^$@#@##&%!!!” One commentator described PewDiePie’s “commentary” as follows “[PewDiePie’s] chosen mode of sharing his critique happens to be ribald entertainment, an unmediated stream of blurted jokes, startled yelps, goofy voices, politically incorrect comments, and pretty much nonstop profanity.” 10

Yes, the Second Circuit has opined that the commentary need not be on the work borrowed, 11 it seems to me the experience is no different than if you were actually sitting in the room with the person playing. So the mere switching on a camera and pointing it at yourself is a “transformative” act? I’m not convinced.

NATURE OF THE WORK USED: The video games themselves are highly commercial, definitely for profit and definitely not educational, scientific, or technical. Though in practice, both the Second Circuit and the Eleventh Circuit have openly given short shrift to this factor.

THE AMOUNT AND SUBSTANTIALITY OF THE TAKING: Here’s where the “transformative” argument takes its biggest hit. As the Wired magazine piece points out:

“YouTube has an informative page on fair use that specifically calls out a review of the game Drake and the 99 Dragons by user ProJared as an example of a video that it says does not constitute an infringement of game publisher Majesco’s copyright. The 17-minute review makes extensive use of clips of the game, with running commentary.

“Let’s Play” videos are not so clear-cut. The main difference is they often are quite long—if a game takes 20 hours to play, the video may well be 20 hours long.” 12

This undercuts “transformative use” in two ways; first, it takes way more than necessary in order to make their critical point. Next, since the clips are so long, they will undoubtedly not only take large portions of the work, but inevitably take the “heart of the work” as well. And by taking such a large portion of the work, may act as a market substitute for the work, as seen in the next section.

NEGATIVE MARKET EFFECT ON THE COPYRIGHTED WORK : First off, the “Let’s Play” video maker clearly understands that there is profit to be made by placing ads before the video, and these profits owe a substantial amount to the creativity of the game maker whose product they are appropriating.

“Anela’s attitude mirrors that of many YouTubers: Whattya gonna do? For all the hours she invests making the videos, the footage does belong to Nintendo. ‘I can’t really say to Nintendo, you don’t own this at all, this is mine,’ she says.” 13

Plus, one of the main factors in a video game’s popularity is the factor most often called “replay-ability.” Once you have played the game, and gone through all the levels, do you want to play it again? Similar to a movie that you’ve seen once – do you want to watch it again? Sports games, such as the Madden NFL series or NBA2K, feature endless varieties of replay, because you can continually match up different teams against each other, or even create wholly hypothetical teams if you wish.

This is not so much the case with “story” games. They can have alternative paths, based upon the choices you make, and even have alternate endings, but the possibility exists that having seen a “Let’s Play” video, you are then not interested in purchasing the game since you already know its secrets. Also perhaps having the plot points revealed to you through “Let’s Play” you 1) feel you’ve already played the game, 2) discover you don’t like the plot or 3) don’t like how the game plays, and decide not to purchase the game. Of course the opposite will be claimed, namely that the “Let’s Play” video promotes sales of the video game in question.

“If you’ve got a high-quality game and you give it to a guy like PewDiePie, you’ve just gotten your video game in front of millions of people without having to pay the kind of money big publishers usually pay to get their game in front of millions of people… It seems to me to be highly beneficial to let YouTube do its own thing.” 14

In my view, the amount and substantiality of the taking weighs heavily against fair use. One could make their critical point using far less of the material than is present in your typical “Let’s Play” video.

Now let’s turn to Google’s ever-shifty handling of the takedown process, as previously discussed in this blog. 15

Remember, Google has sole discretion to decide whether a DMCA notice to YouTube, which has been made the subject of a counter-notice, will be acted upon.

“Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at YouTube’s sole discretion.” 16

Also recall that Google has agreements with certain content providers that mandate that they, not Google, have final say over whether your Content ID or DMCA counter-notice will be acted upon.

“Under these contracts, we may be required to remove specific videos from the site, block specific videos in certain territories, or prevent specific videos from being reinstated after a counter notification. In some instances, this may mean the Content ID appeals and/or counter notification processes will not be available.” 17

So, in other words, if you have uploaded a “Let’s Play” video to YouTube, Google’s decision, or that of the Content ID participant is final, with no appeal by you.

So while it would be easy to blame the big copyright content players for the predicament of the “Let’s Play” video makers, it’s really Google and YouTube’s TOS that doom you, which like most people, you probably never bothered to read.

Why not split the revenue between the game creator and the “Let’s Play” video maker? This would seem to be a win-win. And it seems that Nintendo has offered this to “Let’s Play” makers. Yet, for some reason, this offer is being scoffed at by the gamer community. Back to the Wired magazine article:

“Earlier this year, it announced the Nintendo Creators Program. If your video or YouTube channel contains content from an approved “whitelist” of games, you can enter the program. That entitles the company to 40 percent of the ad revenue on your video or 30 percent of the revenue on your channel. Nintendo approves all videos before they go live and can alter the terms of the deal “arbitrarily,” according to its terms of service.

It sounds more than a bit like a protection racket. “A lot of critics and reviewers are concerned,” says Zack Scott, a maker of Let’s Plays who’s had videos flagged by Nintendo. “I don’t know what’s going to happen to people who cannot sign up to be an affiliate.” 18

A protection racket? Nintendo does not have to make this offer at all. They can, as this article readily demonstrates, have your video removed, for which you will get nothing, or take your monetized content, for which you also will get nothing. It seems to me that Nintendo is doing the right thing by cutting you in, and allowing you to share in the profits.

Again, what the Internet at large does not understand, is adding something to a copyrighted work, and taking large portions of it, all without permission, does not suddenly make it “yours.” Video games are expensive to make, and Nintendo has created some of the most iconic characters in gaming. So maybe people are interested in your commentary, but the main attraction is that it has famous gaming characters, like Mario, Luigi, Bowser, Princess Peach, etc. You had no involvement in creating these valuable characters, but now somehow you feel that you should be able to take and trade on this value for your own personal profit, and Nintendo, (which as noted above lost money for three years running), should just leave you alone.

Internet logic…sheesh.

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