Player-generated gaming videos run into copyright wall

Philippa Warr, CREATe, United Kingdom

PUBLISHED ON: 11 Jun 2014

Over the last few years Let's Play videos have become wildly popular. With over 27 million subscribers on his YouTube channel, PewDiePie (real name Felix Kjellberg) is one of the most famous Let's Play creators. YouTube monitoring site Social Blade puts his earning potential from these videos at somewhere between €139,000 and €1.16 million. If you can connect with a big enough audience, these gaming videos can become a big earner. But legally speaking Let's Plays are not so straightforward, especially in terms of copyright.

What is a Let's Play?

A Let's Play is a video which shows someone playing a videogame. They usually involve footage of the actual game as it's being played and an audio track capturing the player's reactions to the game, chat about what they're doing and other observations more or less related to what's on screen. Many will have a camera trained on the player's face also recording those reactions. The thing to note here, though, is that the majority of the assets in Let's Plays, both video and audio, are created by the game developers and not the YouTuber who is broadcasting them.

Nintendo’s unease with Let’s Play videos

That's where copyright comes in. The extent to which the videos use copyrighted material and the fact that it might be monetised through advertising has made some developers uncomfortable. Most famously, the video games and hardware company Nintendo pushed back on Let's Play videos in 2013. The company issued a statement in May of that year explaining they wanted "to ensure Nintendo content is shared across social media channels in an appropriate and safe way" and that "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".

While Nintendo stressed that they were keen on fans sharing content, the adverts comment meant that the video creator would no longer receive the advertising revenue. Instead that would go to Nintendo. It was a move which Nintendo appears to have been tweaking in the subsequent months - a YouTuber affected by the initial decision reported that his vanished revenues suddenly reappeared. Then in May 2014 the company announced it would be setting up an affiliate scheme: "for those who wish to use the material more proactively, we are preparing an affiliate program in which a portion of the advertising profit is given to the creator."

Are Let’s Play videos protected by fair use policy?

The response has been varied. Some feel Nintendo is being completely reasonable, others have described it as an attempt to monetise what is essentially already free advertising for the company and its games. One of the problems here is that although we know what Let's Plays look like and broadly what they cover, it's hard to pin them down in other respects. Are they criticism? Are they a type of review? Perhaps they are free advertising for the developer? Or is it a set of grunts and swearwords set to someone else's creativity? Do they constitute a new type of content altogether?

The latter is important in the US where transformative use can be invoked as part of the fair use defence but in the UK you're looking at various fair dealing defences - for example, whether the Let's Play would constitute criticism or review. The issue here is that although the viewer might use them to see whether the game is going to be entertaining or worth their money, the Let's Play doesn't intend to be criticism or review in a way a traditional written article or film segment might. Also, legally speaking, the nature of the use has to be 'fair' which may be hard to show given Let's Plays not only give the flavour of the game and the player's responses to it but can broadcast the plot and all its twists and turns as well as the solutions to puzzles and so on - something traditional game reviews (both written and video) tend to avoid.

Some companies play a different game

While Nintendo would like to retain control of the company's intellectual property and its monetisation with regard to Let's Plays, other companies have decided to embrace them as a way of raising awareness of and engagement with their products. Let's Plays, in these instances, can be thought of as free marketing and advertising for the game in question.

This idea was vocalised following a spike in copyright claims on YouTube after the company introduced its Content ID system for detecting copyright infringement. Developers and publishers like Blizzard, Deep Silver and Bossa Studios issued statements and guidelines supporting the Let's Play community. Developer Vlambeer created a permission generator so people looking to monetise content created using its games could prove the company's support if YouTube's automated system or a non-affiliated company made a copyright claim.

The permission form states "It's good for us too when people share their opinion about our games" and referred to the videos as free marketing as well as being a source of motivation and positivity for developers. It's a sentiment echoed by Gunpoint creator Tom Francis: "Personally I'm delighted when people make videos of my games. The massive audiences Let's Plays attract aren't like other massive audiences: they're extraordinarily attentive, patient, and engaged."

Earlier this year Jason Kingsley, CEO of Rebellion which makes the Sniper Elite games, noted that the standalone expansion, Nazi Zombie Army, had been used in Let's Play videos by well known YouTube and Twitch personalities. Several of those videos had gone on to achieve upwards of 1 million views. He says that "given we did no other forms of marketing for Nazi Zombie Army at all our massive sales success - we're upwards of nearly 400,000 units - in a very short period of time, mostly on Steam so mostly digital sales, would indicate that they have had a very big impact for us."

Essentially the value to these companies of the Let's Plays currently outweighs the value of pursuing the copyright claim, either in terms of game sales and community goodwill or other qualities -- game design feedback, for example. Whether this remains the case will depend on how those relationships develop over time. For the moment, if you're looking to create or monetise Let's Plays there's a handy wiki which offers information and links to the policies of various publishers so you can check what their policies are.

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