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marley on 11 April 2015
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-Ack!- said:
marley said:

Your statement that he owns the IP because he purchased the game is ludicrous.  

Showing 20+ minutes of a game (particularly when monetized) would be extremely difficult to defend as 'fair use' in court, even if it is part of a review.  Why?  Because you don't need to show 20+ minutes of a game to illustrate your criticism.  I don't know about the MP 10 video, or the amount used, because I didn't see it.

Recording  and distributing "It's a me, Mario" in the distinct Mario voice and delivery would almost certainly be considered a copyright violation in court (especially if profit is involved).  - “Substantial similarity” is measured by whether a normal observer would recognize the second work as a copy of (or derived from) the original. For cartoon characters, courts consider not only the visual resemblance but also narrative aspects of a character, such as their personalities, behaviors, biographies, and story lines.

It makes no difference how you feel about it.  It makes no difference if you think it's right or wrong.  It just is.  


I didn't say that he owns the IP, I said that he didn't pirate his game. So he own HIS COPY of the game. Copyright laws are against sharing the content for free or for profit without (in this case) Nintendo's approval. If that video was made by Nintendo it would fall into that category. Review is not a copy of the game, you can't play a review, and if you actually watched these videos you'd notice that there are a few random clips that explain how the game works and tons of original content.

Do you understand how ludicrous your statement of Nintendo owning my voice is? Only if I used the original recording, could they sue me.

By your logic for example Comic Con is illegal because almost everyone there copies some IP whether it would be games, comics, anime etc.

- On a side note: have you seen Unearthed: Trail of Ibn Battuta? By your standards that game is illegal based on your definition of "Substantial similarity". :D


-Ack!- said:
"I don't see how people can defend Nintendo by saying that AJ is using property that doesn't belong to him. WTF, he purchased the console, the games & accessories, they are HIS OWN PROPERTY."

The property he is using that doesn't belong to him is the IP.  I feel like a broken record at this point.  Saying he can use the IP however he sees fit because he bought the game, is the equivalent of saying he bought the IP.

It doesn't matter if you can or can't play the youtube video.  It makes ZERO difference.  Can Sony make a 'Mario' movie without Nintendo's permission? You can't play the movie can you?  Does it matter?  NO.  Mario is heavily copyrighted and trademarked.  The only way it can be used legally without consent is defined in 'fair use'.  

I've watched AJ videos.  They are generally the game playing in the background while he talks over top.  Fair use only allows you to use the amount NEEDED to illustrate your critique.  He doesn't need to show 40 minutes of a game to critique a game.  This is the main reason that it wouldn't succeed in a 'fair use' defense.  

Again, your voice isn't copyrighted - the character that you are imitating IS.  You can own your performance and still break copyright law by using someone elses property in your performance.  The only way that you would be able to legally do what you are describing is if you are doing a parody.  This isn't complicated and is actually black and white in copyright law.  It's not even gray area.   You can't sing someone elses song and broadcast it on youtube legally.  It doesn't matter if it is your performance and your voice.  The song you are singing - words, melody, etc. belong to someong else.  It's up to the copyright owner to decide if they want to remove your video, take your ad revenue, or turn a blind eye.    I promise you this is how copyright works.

People dressing up at comic con do not break copyright laws because it is private use (just like Halloween).  It would definitely be a copyright violation if they were pretending to be a character, uploading it to the internet, and profiting from ad revenues.  You can pretend to be Mario all you want in your living room.  You can go outside and yell 'it's a me Mario' if you want and it wouldn't matter.  You do need permission if you want to broadcast it (especially for profit) whether on youtube, a radio ad, tv, in a movie, etc.  

That was not my definition of 'substantial similarity'.  It was cut and paste from one of the oldest intellectual property specialty law firms in the country.... but what do they know right?  I honestly don't know how else to explain this to you.  You can keep making it seem like I'm inventing these things or that I have special standards - but it's how the law actually works.