marley said:
Nuvendil said:
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.
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He's still profiting off of someone elses creative work. Even if he is adding his own creative work on top of it. In the same way that I would own the rights to my performance, I still don't have the right to distribute and profit from that work. It doesn't have to be the work in it's entirety (even reading part of the book could easily be an infringement).
It doesn't have be substitutional or a direct duplicate for it to violate the holder's rights. That only applies to one of the laws conditions (a condition that could be difficult to defend on some let's play videos). That actually is connected to a clause that could be difficult to defend in other regards. Nintendo could certainly argue that it undermines their potential market for their own youtube channel. Even the possibility that this has a financial effect on Nintendo would likely be enough in any fair use court case.
All conditions of fair use must be satisfied for it to be valid. The conditions that would be the hardest for youtubers to overcome would likely be the amount of the game used coupled with the fact that it is for profit. That is something that would be very difficult to overcome even if it is a heavily edited video.
I didn't see the video and I have no doubt that if falls into copyright gray area (most things do). It would still be a difficult defense for any youtuber to make if they are sharing someone's intellectual properties in a for profit manner. Nintendo has every right to aggressively police its intellectual property across any and all media. That's not to say that it is always a good idea.
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Even still, Nintendo wouldn't make anything off that ad because it wasn't ever going to be on Nintendos channel! It was on the youtubers channel! So the only thing that happens is Nintendo stops getting free advertisment. No one is going to go to Nintendos channel to watch angry joe because ANGRY JOE ISNT THERE.
