jibbyjackjoe said:
| marley said:
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.
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True enough that people go to Angry Joe's channel to see Angry Joe. But if he is using Nintendo's IP to draw in and profit off of viewers, Nintendo could make a valid claim that it has a negative impact on the potential viewership and profit of their own channel. Showing any impact to their IP's value or the companies profit through direct sales, licensing, etc would be very damaging to any 'fair use' defense. The defense would have the burden of proof that they didn't take away viewership of any current and potential MP videos on Nintendo's own channel.
I don't think it would ever come to that because it would likely be unnecessary. I'm just pointing out that 'fair use' doesn't only apply to them in the gaming industry but rather to all of their existing and potential markets.
