Gamasutra: The Art & Business of Making Gamesspacer
View All     RSS
August 28, 2014
arrowPress Releases
August 28, 2014
PR Newswire
View All
View All     Submit Event





If you enjoy reading this site, you might also want to check out these UBM Tech sites:


 
Deconstructing Letís Play, Copyright, and the YouTube Content ID Claim System: A Legal Perspective
by Mona Ibrahim on 12/12/13 01:16:00 pm   Expert Blogs   Featured Blogs

The following blog post, unless otherwise noted, was written by a member of Gamasutraís community.
The thoughts and opinions expressed are those of the writer and not Gamasutra or its parent company.

 

What Is Let’s Play?

The Let’s Play “Movement”, so to speak, has been around for a while. To put it simply Let’s Play is the practice of recording and sharing game playthroughs on sites like YouTube. Often these videos contain commentary and undergo a certain amount of editing to optimize the viewer experience. It gives the gaming community a chance to witness the player’s experience, determine game difficulty, laugh at the player’s screw ups… you get the idea. It’s also an excellent source of viral marketing for developers and publishers alike. That’s why many independent game developers, such as Level Up Labs’ Lars Doucet, actively back the Let’s Play movement.

This movement has spawned no few Internet celebrities or “professional fans”. Thanks to YouTube’s ad-based monetization system, these players have turned Let’s Play videos into a supplementary source of income or, in some cases, a full time job. Thanks to ad revenue based on high-volume viewership, producing Let’s Play videos can become a fairly lucrative venture.

And this is where the problem begins. Once monetization is introduced in any content model the various rights holders will begin to fight over who owns that money. However, thanks to YouTube’s Content ID claim system the standard method of managing potential infringement claims has changed. But we’ll get to that later. For now, let’s take a legal look at Let’s Play content.

Okay, now what is Let’s Play, legally speaking?

From a legal perspective a Let’s Play video would almost certainly constitute a derivative work under domestic and international copyright law. A derivative work, for the uninitiated, is a work that is based upon one or more pre-existing copyrightable works that recasts, transforms, or is an adaptation of those works. Examples would include cinematic adaptations like Twilight, The Hunger Games, and Ender’s Game that are based on best-selling novels, as well as things like translations, musical arrangements (which are adaptations of an original score), editorial revisions… Basically anything that adds new, creative, and original elements to the underlying work regardless of whether those new elements are separable from the underlying works.

So are Let’s Play videos protected under Copyright?

This is where things become tricky and I am perforce required to rely on every attorney’s faithful go-to response when there is no one answer: It depends. A derivative work based on a lawfully licensed underlying work is protected under a separate and independent copyright. In other words it isn’t protected under the underlying work’s copyright—it gets its very own brand-spanking new set of rights all by itself. However, for a work to be protected under copyright it must be “lawful”. A derivative work based on an unlicensed underlying work is arguably unlawful, and therefore may not be entitled to copyright protection. 17 U.S.C. ss. 103(a); Pickett v. Prince, 207 F.3d 402, 406 (7th Cir. 2000).

I say arguably because the new copyrightable elements that are divorceable or separable from the original work are, for the most part, entitled to their own copyright protection. This may be true even if the producer of the derivative work doesn’t have a license to use the underlying work. That probably sounds more complicated than it actually is, so I’ll give you an example. Let’s take the anime adaptation of the video game Tales of Vesperia (pretty “otaku”-ish reference, but it’s the first thing that came to mind so I’ll own it). “First Strike” borrowed the world and characters from the game—however, the storyline itself was essentially a prequel that the game only vaguely alluded to. That story, taken separately, is entitled to its own separate copyright protection. You could change the characters and the world and the story itself would still be original enough to afford it protection under the Copyright Act. Incidentally this holds true for several film adaptations of video games, the most obvious example being the Resident Evil film franchise.

Elements that aren’t divorceable or separable from the underlying work, on the other hand, are not entitled to copyright protection. In that case you would certainly require a license in the underlying work for the derivative work to have valid copyright protection.

So how does all of this effect the rights in a Let’s Play video? Once again, it depends. If a Let’s Play video includes commentary, independently created animations, “spoofs” and other content not original to the underlying game being played, those elements may be entitled to their own separate copyright protection. An audio recording of an original script or running dialogue, for example, is separable from the underlying game being played. Therefore the video’s creator, regardless of whether (s)he has obtained a valid license to record and distribute the playthough on YouTube, may nonetheless hold a valid copyright in that separable content.

This argument becomes weaker when the video simply shows someone playing a game without additional content or commentary. Editing, for example, isn’t something you can really consider “separate” from the underlying work no matter how creative you’ve gotten with your mad editing skills. You would require a license in the underlying work if you want to claim copyright protection in that playthrough as a derivative work.

Even if separable elements are protected under their own copyright, the underlying content owner would still have a valid claim to pull your Let’s Play video from YouTube or other video upload sites if you don’t have a valid license. Websites that permit user-generated content are traditionally absolved from contributory copyright infringement liability thanks to the DMCA’s take down procedure. It’s therefore not surprising that websites are quick to comply when they receive a take-down notice.  YouTube’s Content ID Claim system has put an interesting wrinkle in this procedure, however.

The “Traditional” Take-Down System versus Content ID Claims

When I say interesting, I mean “problematic”. And I say problematic because the Content ID Claim system potentially runs counter to the underlying policy of the DMCA safe harbor, which is intended to prohibit unlawful infringement. The DMCA safe harbor wasn’t established to permit content owners to monetize derivative works produced by third parties—it’s meant to prohibit the unlawful distribution of a protected work.

Under the “traditional” DMCA take-down procedure, a rights holder will submit notice of infringement to the website claiming DMCA safe harbor protection. After a (granted, predominantly cursory or non-existent) review the website will remove the user generated content from the site. The user who uploaded the content would then have to submit a counter-notice (aka a “put back up” notice) stating that the content is non-infringing or is fair use. It’s up to the website to decide whether to put the content back up. If they do decide to put the content up, the original content owner would have to take actual legal action by filing a civil claim in an appropriate jurisdiction. The content owner can then submit a copy of the complaint to the website, which may elect to remove the allegedly infringing content once again.

The Content ID Claim system, however, doesn’t follow this procedure. Instead it allows content owners (or even fraudulent claimants) to hijack and monetize user-generated content even if the user’s inclusion of the underlying work constitutes nominal or fair use. This is, obviously, very different from removing potentially infringing content. Ironically, it facilitates a system whereby the original content owner becomes an infringer.

Wait, what?

You may be asking yourself that after reading that last sentence, but remember that separable elements of a derivative work may themselves be the subject of copyright protection. Furthermore, if the use of the underlying content is nominal or fair use, the entire derivative work product is protected under copyright. By claiming rights to that work, continuing to distribute it, and in turn generating ad revenue from that work, the underlying content owner has in effect become the infringer—not only that, but they’re building up a pretty substantial damage claim on behalf of the user who created the Let’s Play video in the first place.

I’ll give you a minute to digest that.

That being said, we are talking about games, here, so…

So I’ve posited the legal position the Let’s Play community could arguably take, but let’s face it—the Let’s Play community and the gaming community in general probably isn’t interested in coming to loggerheads with companies like Nintendo. This should be a symbiotic relationship, not an antagonistic one. The thought of the Gaming Industry transforming into an RIAA-like consumer-hating entity is a terrifying prospect.

As for Nintendo’s official stance regarding this matter, they submitted the following statement to Game Front:

“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.”

It’s evident that there are some very, very broken aspects to YouTube’s current policy. However, that doesn’t give users permission to steal content without a license. Furthermore there are many developers and publishers who not only permit Let’s Play videos, they encourage them.

I do not recommend boycotting companies like Nintendo on the basis of their decision to regulate the usage of their content. They are well within their rights to do so, for the most part. While I think exploiting the Content ID Claim system to monetize content created by their fan base is a dick move, it’s not (well, not always, at least) per se illegal. However, I do think that the current system is all too easy to exploit and it’s damaging to the Let’s Play community in general.

Your biggest asset when creating a Let’s Play video is a content license to or permission to use the underlying work. If you want to show your support to the Let’s Play community, support the developers and publishers who nurture that community.


Related Jobs

Retro Studios - Nintendo
Retro Studios - Nintendo — Austin, Texas, United States
[08.28.14]

Gameplay Engineer
Mixamo
Mixamo — San Francisco, California, United States
[08.28.14]

Animation Outsource Manager
Smilegate West
Smilegate West — Toronto, Ontario, Canada
[08.28.14]

Java Developer
Trion Worlds
Trion Worlds — Redwood City, California, United States
[08.28.14]

Senior Gameplay Engineer






Comments


Ryan Dancey
profile image
Anderson v Stallone (http://en.wikipedia.org/wiki/Anderson_v._Stallone) would seem to indicate that this statement: "That story, taken separately, is entitled to its own separate copyright protection. You could change the characters and the world and the story itself would still be original enough to afford it protection under the Copyright Act." may not be true.

Mona Ibrahim
profile image
Where there's one side of an argument there is always another-- this is kind of the principle behind litigation, after all. There's no bright line on this issue:

" Similarly, if the original expression added by the unauthorized preparer of a derivative work is clearly detachable from the original work itself, so that no confusion, or disruption of the copyright owner's plans for the exploitation of his work, would be created by allowing the unauthorized preparer to copyright his original expression, the unauthorized preparer might be allowed to do so, Williams v. Broadus, 60 U.S.P.Q.2d 1051, 1055 (S.D.N.Y.2001); Paul Goldstein, Copyright, vol. 1, ß 2.16, p. 2:209 and n. 11 (2d ed. 2003), though this principle may be limited to compilations, where 'the infringing portion would be easily severable and the scope of the compilation author's own work ... would be easily ascertainable.' Anderson v. Stallone, 11 U.S.P.Q.2d 1161, 1167-69 (C.D.Cal.1989)."

Bucklew v. Hawkins, Ash, Baptie & Co., LLP., 329 F. 3d 923 - Court of Appeals, 7th Circuit 2003 @930

So, for example, if the commentary of a Let's Play video can operate separably and independently as, say, a game review that would be protected under fair use/fair comment, that audio track may in itself be independently protected. A lot of this is theoretical (because oftentimes these matters go unlitigated), but if I were arguing the case it's probably the approach I'd take.

Incidentally I'm not saying you're wrong-- just that this isn't a clear cut area of the law and there are always a multitude of approaches for every legal argument. :)

Amanda Lee Matthews
profile image
I don't think anyone doubts that Let's Play videos contain copyrighted content. It's just that they were allowed, because they were beneficial to everyone.

I don't buy gaming magazines, I don't watch tv (so don't see commercials), and most people I know (both in my age group and in my kids' age groups) are the same. Social media is pretty much the only way I find out about new games. Watching others (that I trust or know have similar game likes to myself) play them is the only way I'll decide to buy a game that isn't made by the handful of developers I follow loyally (and I'm talking individuals, not development companies. And the way I keep up with those individuals, is social media). So companies are shooting themselves in the foot by having videos taken down or taking all revenue (if professionals can't make money from certain games, they won't buy them. They won't show them to their fans, who then won't know about them or won't think they're worth buying.).

If this keeps up, I predict a rise in the popularity of indie games...

Kyle Redd
profile image
This entire debate could be avoided if game publishers would come to realize that their sales are not being negatively impacted by the spread of user-made gameplay videos. This fact should be so obvious to them that I'm inclined to think there's some other motivation here - maybe something as simple as just getting more revenue? Consumers buy the game and the publisher gets paid... and then consumers play the game and the publisher now can be paid for that as well.

Ursula Brand
profile image
With very few exceptions this has nothing to do with the publishers claiming their rights. On the contrary, many publishers tweeted about this and asked Let's Players to contest the copyright claims so that the publishers can approve these videos.

Jonathan Murphy
profile image
Copyright in the USA is allowed under fair use. Educational, satire, criticism(reviews). However the area becomes very grey when profit is involved, as well as Let's Plays, full music, full movies.

I propose a 10 year limit on all media once it makes market. I want Exo Squad season 2-4, Turok 64. Can I buy either of those on DVD or digital? Nope. I have to wait, and wait. But if I try to download it off pirate bay. I'll go to jail. Flawed, broken, outdated system. Overhaul it. If you can't buy it you can download it for free! Every generation should create their own media, rather than live on generations past like a lazy child living in it's parent's shadow.

Contradiction at it's best, "Backwards compatibility isn't important. Here's a HD remake of a game that's 15 years old."

Christian Nutt
profile image
Well, fair use also has a stipulation about the amount of the work excerpted:
http://en.wikipedia.org/wiki/Fair_use#Fair_use_under_United_State
s_law

Many Let's Plays are of the whole game. And I've also seen people formulate opinions on Let's Plays as though they have played a game, or consider the Let's Play as enough of the experience that playing the game becomes superfluous. So there is something here that's not entirely frivolous.

Andrew Quesenberry
profile image
Unfortunately, that puts us firmly in the "Lost Sale" Fallacy, or the whole idea that those who have watched an entire Let's Play of a game have "enough of the experience," and are sales that have been lost by the developer/publisher. In reality, these "lost sales" could fall into several categories:
1. They may have bought the game, if the Let's Play hadn't given them "enough of the experience" that they don't feel the need to purchase it anymore.
2. They would have bought the game, but recouped their losses by selling it back to Gamestop, after getting "enough of the experience." (which, by many developer's logic, is also a lost sale).
3. They never would have bought the game in the first place.

My point is, lost purchases are not a statistic that can be quantified. You can argue about the ethics of being able to make a Let's Play or review of any game without the creator's permission, but putting this into a debate about whether this steals sales from the developers/publishers doesn't work, and isn't productive to the greater question.

Luis Guimaraes
profile image
For some games, watching a Let's Play is the same as playing it. They're just Fiction. Apart from that, a Let's Play / Walkthrough video can only be beneficial to the creators of the title.

Mark Nelson
profile image
I love watching Let's Play videos. Particularly the ones with no commentary, just a competent playthrough across several hours of watching. The same goes for cutscene compilations.

I've enjoyed many games that I would not normally have time to enjoy otherwise. Halo Reach. Halo 4. God of War. Mass Effect 3. Etc...

In some cases there have been ads before each segment of the playthrough. On these types of videos, my gut says there should be a 70/30 split of ad revenue between the publisher/player (in that order). Especially since the publisher may have to pass on payments to a host of other entities. However, the player has (in the past) had to competently play, capture, prep and upload the video. Not an insignificant task for a high quality HD upload... (Perhaps the new, built-in console-based game streaming is going to solve for this segment?)

I would NOT have purchased these games, so the playthrough did nothing but entertain me for the duration of the viewing (2-3 hours). I WOULD have likely paid $0.99 to watch a curated playthrough of each game's content. Particularly those with the strongest visual presentation and most cutscenes.


P.S. Of the games I have watched this way, I have paid for and played through at least one of the games in the series.

Kim Pallister
profile image
>doesnít give users permission to steal content without a license

"Steal" is a pretty loaded choice of verb. (Copy, use, re-use, misappropriate...)

Alex Covic
profile image
"Steal" and "stealing" are the legally correct terms.

Colin Sullivan
profile image
Stealing is fine colloquially, but "infringement" is the legally correct term.

Mona Ibrahim
profile image
Colin is correct here. Legal definition of theft is an unlawful taking that deprives the owner of the use of that item. There is technically no deprivation of use in infringement, thus the distinction.

Alex Covic
profile image
My bad. Apologies. I had a brain-freeze; forgetting things, I learned 20+ years ago.

Kim Pallister
profile image
That was my point. Language matters. At least 'pirate' didn't make an appearance.

Arman Matevosyan
profile image
@Mona Can I push back on this? It's true that theft is defined as an unlawful taking that deprives the owner of the use of that item. However, copyright grants the owner an exclusive bundle of rights and uses, one of which is the right to prepare derivative works. If Let's Play takes away the owners' exclusive right to make derivatives, doesn't that fit in with our definition of theft?

Mona Ibrahim
profile image
Always, ALWAYS feel comfortable pushing back on interpretation of the law. That's how law is made. :)

And you pose a plausible argument-- however, if we're applying a narrow construction of the definition of theft, the element of "exclusivity" is extraneous to that concept of deprivation. It does pose an interesting question as to whether depriving someone of that "exclusivity" constitutes theft.

Generally speaking, though, theft governs the taking of a physical or liquidated asset as opposed to an ephemeral or intangible product. Misappropriation or infringement addresses the "taking" of the latter.

FUN WITH SEMANTICS!

Craig Jensen
profile image
Sigh... The only thing I can say is that US Copyright law doesn't make me as depressed as US Patent law.

US Patent law seems designed to eliminate any creativity and basically just pay lawyers and malicious companies.

In my opinion, of course...

Bob Jove
profile image
What about speed runners? Seriously tons of speed running videos got taken down. SPEED RUNNING IS LITERALLY JUST PURE SKILL. Although personally I dislike many MANY lets players- 60-70 hours making videos a week. Ehhhhhhhhhhhhhhhhhh.

Alex Covic
profile image
First of all, great post, Mona!

The matter touches on many different & diverse interests. My non-legal, very personal opinion is not in favor of a particular group: "Let's Play"- YouTube "personalities". They should find a real job. Trying to make money(!), by talking over something others spent years creating ... is pathetic and smells bad.

There are benefits for publishers (and the interested audience) allowing individuals to make those videos. But I can see why especially a company like Nintendo does not like that, despite the benefits. It is in their right, as stated above.

I can also see story-driven games, like "Beyond: Two Souls" or Telltale's "The Walking Dead" etc, potentially losing customers, who prefer to "watch it on YouTube". The question is, would those people really have bought it? Maybe.

It should be YOUR call - the first party - the developer/creator, publisher, rights-owner, not some 40-year old, streaming from his mother's basement, trying to make some money by using your work.

Andreas Ahlborn
profile image
You have some really good points.

I donīt know if some of these channels belong into the TOP1000 category of youtube channels but if the numbers on this graph have any merit:

http://www.tubefilter.com/wp-content/uploads/2013/06/mdg-infograp
hic.jpeg
than the discussion that is running at the moment is really disturbing.

Sjoerd Bergman
profile image
It's apparent that you have no clue how much work it takes to regularly upload video's while still being entertaining and/or informative.

It's also good to know that you decide what counts as a "real" job.

(This is a very cut-down version of a way too long rant on how wrong and stuck-up you are; I think I'm going back into my mother's basement now.)

Colin Sullivan
profile image
Great write up Mona.

I disagree about it turning content owners into infringers, however, because users grant YouTube a license to all uploaded content.

The Content ID system is essentially a contractual copy of the DMCA system. The users agree to it when they upload their videos, and the content "owners" agree to it when they upload content to be checked by Content ID and choose to either block or monetize the content.

The problem is that YouTube is so dominant they can impose a system like this that avoids some of the (few) legal safeguards in the DMCA and people just have to put up with it. Perhaps this will lead to Twitch gaining some more market share.

Andreas Ahlborn
profile image
I wonder why the obvious solution: that the companies who want to add "Lets plays" as a legimitate revenue stream, don`t hire some of this youtube-stars to do their LPs exclusively for them?

Greg Lastowka
profile image
Good overview! And interesting point about the DMCA evolving into a monetization tool.

I was wondering about this bit: "Editing, for example, isnít something you can really consider 'separate' from the underlying work no matter how creative youíve gotten with your mad editing skills." Yet, I think, we would protect a copyright in a photograph of a sculpture and in a compilation of stories (independently of the stories themselves). So I think editing *could* be protected in theory, unless you've got case law saying the contrary.

There's a related question (actually pretty spot-on w/r/t Let's Play) of whether playing a game creates a copyright in the performance of the game.

See Dan Burk on that question here:
http://www.pennlawreview.com/print/Burk-161-U-Pa-L-Rev-1535.pdf

I've written about it here:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2321424

Jennis Kartens
profile image
The worst part of this is actually neither both sides of players and publishers/owners, but how YouTube/Google just pulled the switch.

It is inacceptable how this is still not clarified. I have to deal on a daily basis with YouTube-Players and the amount of none- to misinformation because of Googles horrible, horrible behaviour ist outragous to say at least.

Richard Terrell
profile image
Great read. I really appreciate the perspective you brought here. I've been following this issue for the past few days and this article was refreshing. Now... I gotta figure out what it all means for my future games criticism efforts.

Kevin Fishburne
profile image
I enjoyed your article, Mona. Thanks. I do strongly disagree with one point, however:

"I do not recommend boycotting companies like Nintendo on the basis of their decision to regulate the usage of their content. They are well within their rights to do so, for the most part. While I think exploiting the Content ID Claim system to monetize content created by their fan base is a dick move, itís not (well, not always, at least) per se illegal."

I realize that "law" (mostly) is a wonderful thing and that its thoughtful creation and reasonable enforcement is the only thing between civilization and anarchy. That being said, to presume that a law is just in intention, interpretation and enforcement and that it well-serves the governed is a very dangerous thing. Not too long ago it was perfectly lawful to own people as objects. It was lawful to treat such people as objects, including their destruction and disposal. There are many laws still on the books (though not often enforced) that the vast majority of citizens would cringe upon reading.

My point is that law is not the word of God and that it is designed to serve the ever changing cultural standards of the people bound by it. It should be questioned at every turn, tested to the limits of its interpretation and enforcement and modified or repealed when it best serves the people. Occasionally it should be protested or intentionally violated in an effort to bring attention and reform.

To summarize, "the law" doesn't necessarily equate to "what's right".

Dave Bellinger
profile image
I understand your point, however using slavery as an example for it in a rather innocent discussion regarding video game videos on YouTube is incredibly inappropriate for it.

Additionally, what you've quoted doesn't imply that what Nintendo is doing is 'right' or 'just', the language that is literally used in that quote is 'within their rights' and 'not (per se) illegal'.

I'm just pointing all this out for perspective, this isn't exactly a 'damn the man!' situation. :)

Kevin Fishburne
profile image
Extreme examples are less boring and allow for interpolation. As long as the example is valid I don't think it's inappropriate (potentially offending people aside).

I agree with your second statement, as does Mona who described it as a "dick move". Legal dick moves are the stock and trade of many corporations.

To your third statement, yeah, it's not the most inflammatory or important issue the industry is facing at the moment for sure. I am however all about "damn the man", as the man frequently begs for a good damning, but this situation requires a case-by-case analysis and it seems like it's not as big a problem as it sounded initially.

My rant was mostly provoked by the sheer number of times I've witnessed people's blind faith in the enforcement of law without regard to common sense. A lot of really bad stuff has happened throughout history due to people following the law without question, so whenever I hear arguments about "being within their rights" or "acting lawfully" I always search for something deeper before passing judgement. Often the only thing I find is self interest, devoid of any consideration for others.

Ken Beyer
profile image
Perhaps I'm misunderstanding the issue here but if at the end of the day this is simply down to a matter of incorrectly licensed property (ab)use/misappropriation (note, not 'theft' or 'stealing'), does that not mean potentially **anything** is up for grabs (subject to Fair Use/Transformative limitations mentioned in the above). Why just game play-through's? What about a gear tear-down for example; could Apple make a valid claim against some doing a 'lets play' of an iPhone? Or Autodesk laying claims against a 3ds Max tutorial author? Or Ford claiming against amateur auto reviewers?


none
 
Comment: