Nuvendil said:
I believe his point was that the experience on YouTube let's plays is fundamentally different from gameplay to an extent that it constitutes a transformative work. And that's without going into the use of commentary, comedy, critique, editing, etc. that further establish let's play videos in the vein of Joe's as fair use. |
I'm sure that's what he meant, but his example couldn't have been more off. It's a fair argument that the gameplay is owned by the player, but the artwork, music, and story is still owned by the creator. The problem is the gameplay cannot exist without someone else's intellectual works - hence someone making profit off of someone elses work.
You can't legally display or distribute those works for profit (especially not in their entirety) in an effort to show off your gameplay. Fair use covers transformative, critiquing, etc, but there are usually still limits on the amount of the original work that you can use in such a manner.
If I was to read an entire book on youtube it would definitely be a copyright infringement (especially if it's for profit). It's transformative because the person watching the video is hearing it not reading it. I could do voices and be entertaining - a performance that I would own the rights to. The person receiving the story are no longer having the experience of reading or turning the pages etc (this is an important part of reading to many people). That doesn't take away the fact that the story itself is copyrighted and I am still distributing it in it's entirety. I could even take pauses to critique the story along the way, but it would still be illegal.
There are no perfect analogies because no media is quite like video games. Copyright is full of gray area and the only true resolution would be a court case. It's extremely unlikely that anyone playing a game in it's entirety (let's play) would win that court case. A standard critique of a game is already well defined as legal and will never be a real copyright issue.
