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Nuvendil on 08 April 2015
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marley said:
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.

But the videos Nintendo is claiming are not just works with no commentary or works that show an entire game's core content.  Joe's video that started all this was heavily edited, didn't show nearly the whole of the game's core content, didn't even show a single full uninterrupted session of MP10, and had a heavy focus on the commentary, comedy, and interactions of Joe and the other players.  The only thing more fair use than that is critique, which is pretty much universally protected.  Also, audio book example is not a good comparison.  That still provides the same essential experience: the conveyance of a story through words in the same structure.  When the amount of th work used AND the means by which it is used constitutes a substitutional experience, it isn't fair use.  However, videos like the one Joe did and like the ones done by Total biscuit and other major YouTubers most certainly do not provide a substitutional experience; that's why they are popular.  Now if you do a full let's play, you will have more legal issues to surmount.  But it's really going to come down to 1) was there large amounts of your own work involved that constitutes its own addition to the experience, 2) was there heavy editing, 3) was the focus on the game itself or your specific discussion/critique/commentary.  If the answer to all of those is yes, you still have a pretty strong case.  But as I pointed out, the reason this particular instance has caused such a stir is because Nintendo is claiming gameplay vids that are much more clean cut.